Rork v. Szabo Foods

STATON, Judge,

dissenting.

I dissent.

The Industrial Board, as it did in Perez v. United States Steel Corp. (1981), Ind., 426 N.E.2d 29 (1981), has perfunctorily shirked its statutory duty to make specific findings of fact to sustain its negative award on a claim for total permanent disability benefits.

The majority of this Court has transmogrified the following statement in the Board’s decision—

“It is further found that there is insufficient evidence upon which to base a finding of permanent total disability.”

into a so-called “specific finding of fact” that justifies the denial of Rork’s claim for total permanent disability benefits. The majority’s ability to divine a factual basis for the Board’s decision is a feat worthy of veneration by all those who must make the legal pilgrimage before the Board. However, the Indiana Supreme Court has condemned the very “finding of fact” that the majority of this Court finds suitable for appellate review. See, Perez, supra, At 31; Talas v. Correct Piping Co., Inc. (1981), Ind., 426 N.E.2d 26; Talas v. Correct Piping Co. Inc. (1981), Ind., 416 N.E.2d 845, 846. In fact, the majority of this Court applauds the Board by saying that it “could not have been more specific in its findings of fact.” The resultant effect of the majority’s insistence upon paying homage to the Board’s adherence to a policy of remissness in making specific findings of fact is that the reviewing court will be forced to wander aimlessly through the record in search of a factual foundation for the Board’s decision. The, Supreme Court has held such evidentia-ry excursions to be a clear usurpation of the Board’s fact-finding function. I must therefore condemn the Board’s persistent dereliction of its statutory duty to make specific findings of fact and refuse to join the majority of this Court in supplanting itself as the finder of facts.

I need not restate the reasons for requiring the Board to make specific findings of fact. Those reasons are set forth succinctly in the Supreme Court’s opinion in Perez, supra. I only note that the findings of fact in the present case are anemic and beyond resuscitation by the majority of this Court. Other than finding that Rork suffered a work-related injury that permanently and partially impaired 10% of her body (in addition to preexisting impairments), the Board has failed to make findings of fact that apprise this Court of the reasons why Rork can “carry on reasonable types of employment.”

The measure of a claimant’s disability is not limited to a medical evaluation of the claimant’s physical impairment or anatomical dysfunction, but it should be extended to other nonmedical factors, such as the claimant’s age, education, training, skills, and job opportunities. A claim need not be in a state of abject helplessness or operating under a 100% physical impairment to recover total permanent disability benefits. The claimant need only show that he or she is unable to work and earn a reasonable livelihood. Factors other than the claimant’s physical impairment may contribute to his or her inability to work.,

In its opinion, the majority of this Court manifests great surprise that the Board must consider a claimant’s physical and mental fitness, skills, and suitability for available work in addressing a claim for total permanent disability benefits. Citing my dissent in Perez, supra, the majority states that “[i]t has been argued” that physical impairment is not the sole consideration in a claim for total permanent disability benefits. The majority then condescendingly assumes “arguendo” that this is the law. I refer the majority to its own opinion in Perez v. United States Steel Corp. (1977), 172 Ind.App. 242, 247, 359 N.E.2d 925, 928, wherein the majority of this Court adopted in toto Dean Small’s interpretation of the Indiana total permanent disability statute. Dean Small, in Workmen’s Compensation Law of Indiana § 9.4, at 244 (1950), stated that a claimant’s physical impairment is not *1385the sole consideration in evaluating a claimant for total permanent disability. The issue is whether the claimant is “unable to resume reasonable types of employment.” Perez, supra, 172 Ind.App. at 246, 359 N.E.2d at 927. “The reasonableness of the workman’s opportunities will be measured by his physical and mental fitness for them and by their availability.” Perez, supra, 172 Ind.App. at 246, 359 N.E.2d at 928. It is this holding that the majority of this Court has swatted away like a bothersome Ay-

Other jurisdictions adhere to the enlightened view that a claimant’s physical impairment is merely one factor in considering a claim for total permanent disability benefits. The prevailing rule is being reiterated eontantly in cases from other jurisdictions, such as Odom Construction Co. v. United States Department of Labor (5th Cir. 1980), 622 F.2d 110, 115, cert. denied (1981), 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614, in which the court held that the determination of permanent disability under the Longshoremen’s and Harbor Workers’ Compensation Act “must be based not only on physical condition but also on other indicia such as age, education, employment history, rehabilitative potential, and availability of work that the claimant can do.” See also, Henderson v. Winchester (1980), Ark.App., 594 S.W.2d 866; Cohn v. Haile (1979), Ark. App., 589 S.W.2d 600; Inland Robbins Construction Co. v. Industrial Commission (1980), 78 Ill.2d 271, 35 Ill.Dec. 778, 399 N.E.2d 1306; Ruby Construction Co. v. Curling (Ky.1970), 451 S.W.2d 610; Whitaker v. Church’s Fried Chicken, Inc. (1980), La., 387 So.2d 1093; Jensen v. Zook Bros. Construction Co. (1978), Mont., 582 P.2d 1191; Matter of Compensation of Morris (1981), 50 Or.App. 533, 623 P.2d 1118; 2 Larson, Workmen’s Compensation Law §§ 57.51, 57.61 (1980); 3 Larson, supra, § 79.53, at 15-271 (1980). Yet the majority of this Court insists upon removing itself from the mainstream of workers’ compensation law by ignoring a rule of law so readily accepted in other jurisdictions.

The majority of this Court engages in a feeble attempt to distinguish the facts addressed by the Supreme Court in Perez, supra, from the facts of the present case. The majority labels the findings of fact in the present ease as being “far more specific than those found insufficient in Perez.” The substance of the Board’s findings of fact in the present case is as follows:

Rork suffered a work-related injury that permanently and partially impaired 10% of her body as a whole (in addition to preexisting impairments).

This simple statement reveals no factual basis for concluding that Rork is able “to carry on reasonable types of employment.” In fact, the Board made no finding whatsoever as to Rork’s ability to return to her former occupation or to earn a livelihood in another area. The majority of this Court faults Rork for not presenting evidence on factors relevant to her ability to carry on reasonable types of employment. Yet, a cursory examination of the record reveals evidence that is relevant to Rork’s claim for total permanent disability benefits. The record reveals that Rork is 63 years of age; she is unable to drive an automobile anymore, her occupation before her work-related injury involved the preparing of food for and the filling of vending machines; she made five attempts to return to her former occupation after her work-related injury and was unable to carry on any of the required functions; she receives total disability benefits from Social Security; she experiences daily back pain; she is unable to do housework; she cannot stand or walk for a prolonged period of time because of the pain. The record contains depositions of physicians who examined Rork. One physician, after relating a catalogue of physical impairments suffered by Rork, stated that Rork was unable “to pursue gainful employment.” Another physician, citing the same long list of physical impairments, concluded that those impairments did not preclude Rork from obtaining a “reasonable job.” There were several factual ingredients that went into the medical *1386opinions expressed by these physicians and others. Yet, the Board failed to state which factual ingredients it found to be true or more persuasive. The Board did not reduce those evidentiary ingredients to its own findings of fact. The Board merely concluded that Rork was not totally and permanently disabled and left the reviewing court to flounder in the quagmire of evidence presented on the issue of Rork’s ability “to carry on reasonable types of employment.”

Under the Indiana Workers’ Compensation Act, the Board is vested with the privilege and duty to make findings of fact in cases involving industrial accidents. IC 1976, 22-3-4-7 (Burns Code Ed.). Assuming that the Board will limit itself to evidence that is actually presented before it, the reviewing court is bound by statute to accept the Board’s findings of fact. IC 1976, 22-3-4-8 (Burns Code Ed.). However, the Board cannot operate in a vacuum and rubber stamp claims as “granted” or “denied.” As the Supreme Court noted in Perez, supra, slip op. At 32, “both claimant and employer have a legal right to know the evidentiary bases upon which the ultimate finding rests. Ideally, when a decision of the Board is appealed by a claimant or an employer, the reviewing court should have before it “mentally graphic” findings of fact that fully apprise it of the factual basis. Perez, supra, At 33, quoting, Whispering Pines Homes for Senior Citizens v. Nicalek (1975), Ind.App., 333 N.E.2d 324, 326. The reviewing court should not need to review the transcript of testimony in making its review, unless the sufficiency of the findings are challenged.

Because the Board’s findings of fact fail to satisfy the minimum standards of sufficiency, I would remand this case to the Board with instructions that it make specific findings of fact in support of its conclusions. It is only after those findings of fact have been filed with this Court could this Court conduct an intelligent review of the substantive issues raised by Rork.