*1 Having error, judgment of trial found reversible court is affirmed.
Affirmed.
Staton,
Garrard, J.,
P.J.
concur.
Reported at
Note. — Interiors,
Odis F. Anton Anton Inc. 27, 1977.] 2-576A177. Filed June
[No. Bontrager, Bontrager, Spahn, Arico, William D. Atwater & Elkhart, appellant. Kalamaros, Edward N. James J. McGovern, Edward N. Corporation, Kalamaros & Associates of South Professional appellee. Bend, for Plaintiff-appellant judi- Odis Anton
Hoffman, F. seeks J. negative finding of a of the Full cial review Industrial Board perma- denying claim from Indiana partial impairment. nent and a that on March facts disclose moving sewing make were machine old
co-worker *2 of a for the installation new machine. While preparations slipped.” machine, attempting “one of the ends to lift the right experienced appellant pain minutes in his a few Within Subsequently, hip appellant underwent and area. lower back a surgery removal of herniated intervertebral disc for the right L-5, on the side. at S-l appellant disclose in a facts further that 1969 had
The L-4, L-5, L-5 and on at S-l the left side. This disc removed as a surgery result of an necessitated received in was and for workmen’s another employer. by former paid was 1972, appellant hospitalized September low with On slight right amount pain of sciatica. with back appellant temporary awarded total dis- Full Board expenses. and medical ability Board further benefits permanent partial impair- have a appellant does found that light whole, as a but that in of the medical ment to man presented cannot “it be determined to whether evidence partial to due his of or to the 1969 or 1972 incidents 9, 1973 above March referred permanent partial accordingly, to, and question, plaintiff having in to accident to relate found regard.” proof of in this his burden to sustain failed that the award the Industrial Appellant contends Board reviewing appeal contrary on law. When record an to Board, may this Industrial Court consider findings to evidence most favorable that Board, together with the reasonable inferences to Whirlpool Corp. (1972), et Lincoln al. therefrom. be drawn Further, it is not our App. 596. func- 279 N.E.2d 151 Ind.
421 weigh credibility the evi witnesses tion to determine preponder for whom it dence heard Board Company (1975), App. 5, Monsanto 165 Ind. ates. Martin v. negative appeal an award of the In N.E.2d 828. This is may appears and if it that dustrial Board be reversed as a matter of Lincoln the Board’s decision was erroneous law. Whirlpool Corp., stipra. Thus, appellant et al. v. must show Industrial that the evidence before the Board was without in conflict was so conclusive nature and character as to men, lead to but one the minds of conclusion reasonable contrary that Industrial reached a Board conclusion. Davis v. Webster N.E.2d Papadopoulos opinion Dr. Aristides P. testified 15% surgery a whole as a May the man as result Appellant contends that solely evidence leads impairment, any, the conclusion if which existed *3 agravated 9, 1973, of was compensable injury as March 9, Appellant on March occurred thus concludes compensation principle that he was entitled under the arising injury, where an accidental out of and in course employment, aggravates, accelerates, of or pre activates a existing injury condition of or to an employee, the result See, Cyclone compensable. Earhart v. Fence Co. App. 48, 190 N.E. 558.
Although Papadopoulos Dr. appellant testified that was 15 % permanently partially impaired as a May 17, result of the surgery, that, he further testified in part his opinion, rating of the existed before March 9, Moreover, 15% he could not determine how much of the existed before 15% 9,1973. March A. opinion
Dr. Wiliam Stark testified that in appellant has a of of the man as a 8% However, he, too, whole. could not determine how much of his injury rating of March due to the was 8% of or to the incidents 1969 or 1972. testimony indicates that Since the medical permanently impaired accident the occurrence before urged question, competing principle to
here in
a
by appellant
is drawn into consideration.
IC
Ed.), provides
(Burns
22-3-3-12
Code
follows:
permanent
injury Aggravation—Amputa-
“Subsequent
—
injury
permanent
tion. —If an
has sustained
employment,
in
or from other cause or causes
either
another
subsequent
he
than the
received
injury by accident,
specified
permanent
such as
in section 31
compensation
[22-3-3-10], he
entitled to
for the
shall be
injury
subsequent permanent
the
if
same amount as
however,
injury
previous
Provided,
had not occurred:
injury
permanent
for which
That
if the
aggravation
claimed,
or
results
in the
increase of.a
injury
permanent
physical
previously
or
condi-
sustained
regardless
previously
tion,
sustained
the source or cause of such
injury
physical condition,
or'
the board shall
previously
permanent
extent of the
sustained
determine the
condition,
injury
physical
as well as the extent of
or
resulting
subsequent
or increase
injury,
permanent
shall award
injury,
physical
part
or
of such
that
from the
however,
injury.
subsequent permanent,
further,
Provided
any
body
amputation
of the
or loss
That
eyes
any
or
con-
all of the vision
one
both
shall be
or
injury
physical
condition.”
as a
sidered
requires the Industrial Board to first determine
This statute
injury
It must
extent thereof.
the fact of
is a
whether
then determine
subsequent
Board finds that
is a
If the
injury,
then
it must
determine the extent
condition,
previously
*4
aggravation or increase
extent
as the
.of
as well
An award of
is
physical
condition
made
injury. Kinzie v.
resulting from the
(1956), 235
Co.
Rubber
N.E.2d
Tire &
Gen.
where,
application
to instances
extends
of the statute
already suffering
accident,
claimant
at the time of the
op
disability
members as
in the affected
posed
merely
has a
to instances where he
being injured.
susceptible
Bethle
which renders him more
hem,
App.
Corporation
Cummings (1974), 160 Ind.
Steel
denied).
also, Small,
(transfer
See
Award affirmed.
Staton, result; P.J., Garrard, J., concurs dissents with opinion.
Dissenting Opinion respectfully J. I dissent and would reverse the Garrard, which, effect, of the Industrial Board determination holds who arising suffers that an out *5 may of. for and the course of his not recover permanent impairment of estab- unless he carries burden ' lishing damages any mitigation I both and thereof. his contrary specific portion believe of this result to both the general policy statute which is at and to the issue guides, interpretation of the Act. an disputed
It Anton suffered is not that on March his em- both out of in the course of arose ployment. question permanent of The relates to his claim partial prior in- impairment. two Because there had been juries specific to Anton’s lower back and there was partial impairment permanent evidence as to amount of injuries, Anton which resulted from those the Board found carry proof. had of It denied failed to his burden therefore any impairment. permanent partial proof in dispute I had burden of do not that Anton Thus, equipoise claim if the evidence was in his to the Board. any impairment as tó whether Anton suffered 9th, found of Board should have March from proof. Similarly, his we would he to meet burden failed finding credibility determination not disturb the Board’s on sup- supported if some Anton other evidence evidence impairment ported the inference that there was no question. determination in this Board’s cannot be sustained on either of these bases. case claimant, Papadopoulos, stated Dr. who testified partial impairment of 15 after that had a Anton % surgery March 9th He testified which followed the prior impairment but was from the that give opinión much he as to how that could not existed prior to March 9th. Stark,
Similarly, employer, who testified for the stated Dr. 8%, permanent'impairment had he could that Anton separate percentages Anton’s three not break down “they’ all injuries, contribute to some extent.” but the evi- reasonable inference be drawn from impair- dence was that Anton suffered some accident, from March ment 9th industrial but the amount this uncertain because undetermined prior impairment. extent
Thus, question em- whether an ultimate we decide is ployee partial who establishes that he suffered accident, who the result of an industrial but percent cannot establish the of his *6 establishing because
the accident there is the no evidence impairment already prior amount of he from a had sustained injury (a) nothing impairment should recover for on the ground proof, he has (b) failed in his or should burden for the recover entire shown injury complained the to exist after industrial of. examining
In these choices it is well established that the Compensation liberally Workmen’s Act should be construed to purposes. See, e.g., effect its humane Belleville Homan v. Stipply (1937), Lumber App. 96, Co. 104 Ind. 8 N.E.2d 127; Cunya (1935), v. Vance 100 Ind. 197 N.E. question proceedings compensation to secure for subsequent permanent by IC 22- controlled (Burns Ed.) 3-3-12 : Code permanent “If an injury has sustained either employment, in another or from other cause or causes subsequent than the in which he received a permanent injury by accident, specified such as in section [22-3-3-10], compensation 31 he shall be entitled to for injury the in the same amount as if previous injury Provided, however, not had occurred: permanent injury That if for claimed, aggravation results or increase of a previously permanent injury physical sustained or condi- regardless
tion, previously of the source or cause of injury physical condition, sustained or shall board previously extent of determine the condition, physical or well as as the extent subsequent or increase 426 injury, shall award resulting from physical injury, or of such further, injury. how- Provided subsequent body any loss of amputation part of the or ever, That eyes con- be any sidered both shall of one or all of vision condition.” although neither
Two construed the statute decisions have the evidence party the risk when considered which bears disability re- inadequate to establish the amount injuries. prior injury or sulted from the App. 339, 92 N.E.2d (1950), Ind. In Moore v. Staton statute pointed present form of the that the court out departure a radical was arose from a amendment and existing prior provided from benefits for the total law which portion attributable undiminished duty prior In its noted the decision court aggravation and re- Board to the extent of the findings. further manded the Board Subsequently, Supreme Kinzie Court decided Gen. Tire & Rubber Co. 134 N.E.2d actually proviso, case concerned the and the hold second ing was there that where the evidence established that no increase in the second the em *7 impairment.1 ployee not to entitled stating court, however, agreed court, Moore that with the purpose adding provisos the of the amendment the was to major against the the remove one of barriers duty handicapped persons, Board, reiterated the of the and proviso only authorized, required above not it “The that injury determine first fact of and board necessary the extent then thereof. It made it that the board subsequent perma- injury whether the is a injury. injury it nent If that determined sub- sequent injury, then the board must determine the extent employee eye prior industrially 1. The had been blind his left to injury injury claim was latter filed. The resulted eye. remanded, however, enucleation tion that The case was for determina- “permanent” prior prior condition was that “in- dustrially glasses. condition had been with blind” calculated
427 injured person’s previous ‘permanent injury or of.the physical condition.’ If from these facts it is determined compensation that for which ‘results in an or of the claimed previously increase physical condition,’ then, as provides, the statute the board ‘shall award injury, that of such ” injury.’ 592, 602,134 Ind. N.E.2d Thus, open while the statute is to on the construction question us, liberally it before should be construed to effect purposes places the humane Such a construction Act. nonpersuasion regarding the extent of prior employer has from a on once the resulted discharged by establishing has his burden a com- pensable injury, that resulted there- from, existing permanent partial and the total amount of impairment. adopted
I believe that construction should be as the more reasonable construction because: history
(1) prior of the Act demonstrates subsequent fully compensable.2 were Legislature fully To alter result did not choose to primary Instead it rewrite section. retained as the rule appended exception to which it full an where preexisting impairment the evidence established from a approach Supreme prior This and the Court’s of the statute in seriate construction Kinzie not do manifest contrary general policy to the an intent of liberal con- struction. Considering general
(2)
policy
specific
both the
the section
discussed in Kinzie
purpose it
not
would
unduly
place
employer
harsh
appear to
burden on the
nonpersuasion regarding
upon
risk of
place
it the
the extent
impairment;
may
It
preexisting
discover
medical records
injuries.
prior
Moreover,
through
related
a claimant’s
Cunya
See, e.g.,
v. Vance
I
the decision
Board
woüld-therefore reverse
permanent partial
impairment of
structions to
opinion.3
Anton
with this
consistent
Reported
Gene appellant. remains for the Board’s determination the extent of There following permanent partial the March 9th since conflicting. regarding Due to its conclusion the effect the evidence preexisting nonpersuasion impairment, the extent finding the extent of the total Board made impairment' after which existed March 9th