Goodman v. Olin Matheison Chemical Corp.

DISSENT

Buchanan, J.

I respectfully dissent because the majority have ignored the words “previously sustained permanent injury or physical condition" in the apportionment statute (IC 22-3-3-12) and by setting aside the Board’s decision have in effect reweighed the evidence.1

Prior to 1945 what is now the apportionment statute provided that the sum total of the prior condition and the increase or aggravation thereof by a subsequent injury was compensable. See ch. 172, § 33, [1929] Ind. Acts 536, 548. Then in 1945 the statute was amended extensively to provide that compensation should be allowed only for that part of a permanent injury attributable to the present injury if the permanent injury claimed is the result of an “aggravation or increase of a previously sustained permanent injury or physical condition, regardless of the source or cause of *407such previously sustained injury or physical condition.” IND. CODE § 22-3-3-12.

The purpose of this broad language requiring apportionment if the claimed injury results in aggravation or increase of a previously sustained “physical condition” was in the words of the court in Kinzie v. General Tire & Rubber Co. (1956), 235 Ind. 592, 600, 134 N.E.2d 212, 216, “to remove one of the major barriers against the employment of the physically handicapped persons by dealing more fairly with the employer of such persons.” The court went on to say:

Neither is there any good reason why an employer should be required to pay compensation for an injury to an already afflicted member of the employee’s body, unless such injury results in an aggravation or increase of impairment within the standard of impairment fixed by the act. Id. at 600-01, 134 N.E.2d at 216.

So in order to encourage employers to hire handicapped persons the apportionment statute came into being in 1945 and the courts then recognized the right of the Board to apportion between the pre-existing “physical condition” and the subsequent compensable injury. See Kinzie v. General Tire & Rubber Co., supra; Moore v. Staton (1950), 120 Ind. App. 339, 92 N.E.2d 564.

The Board found that Goodman had “several pre-existing conditions in her back and said pre-existing conditions consisted of...,” and further that she “has a permanent partial impairment to her bodily function of 30% of the woman as a whole.”

There was evidence to support the finding that Mrs. Goodman had a pre-existing impairment. Dr. James Y. McCullough testified “that she was suffering from some physical impairment from the osteo-arthritis ... ,” “she has some arthritic disability,” and “she was a bad arthritic before the accident.” The other medical testimony came from Dr. David A. Gard who, among other things, testified that, “I can’t say a person who has arthritis is not at least to some degree disabled.”

The mere fact that the medical testimony is not reduced to mathematical certainty is no basis for this court weighing the *408evidence. The Board is knowledgeable in these matters and must in the nature of things determine ratios or proportions in accordance with their accumulated knowledge and expertise.

The Board, not this court, should make such determinations. In doing so the Board must apply the apportionment statute if there is a previously existing physical condition which has been aggravated. The employer does not take such handicapped persons as he finds them, a fact which the Board recongized in this case and properly applied the apportionment statute rendering a decision with proper findings and evidence to support its findings.

To conclude otherwise is to drain the very essence out of the apportionment statute. And, in my opinion, the cases of this court, see, e.g., Bethlehem Steel Corp. v. Cummings (1974), 160 Ind. App. 160, 310 N.E.2d 565; Bendix Products Div. v. Kolberg (1961), 133 Ind. App. 405, 172 N.E.2d 589; Steele v. Anderson Co. (1956), 126 Ind. App. 445, 133 N.E.2d 896; Magazine v. Shull (1945), 116 Ind. App. 79, 60 N.E.2d 611, and Professor Small’s treatment of this statute, see B. SMALL, WORKMEN’S COMPENSATION LAW OF INDIANA § 9.9 (1976 Cum. Supp., J. Rader), are contrary to the last Supreme Court word on the subject, to-wit, Kinzie v. General Tire & Rubber Co., supra. The distortion of the statute has been by this court.

The Board’s decision should be affirmed.

NOTE-Reported at 36 N.E.2d 1140.

. The cases are legion in Indiana in both this and the Supreme Court that on appeal we will not determine the credibility of witnesses nor weigh the evidence heard by the Board to determine for whom it preponderates and we will not disturb its findings unless the evidence is undisputed and leads inescapably to a contrary result. See, e.g., Motor Freight Corp. v. Jarvis (1975), 163 Ind. App. 442, 324 N.E.2d 500; Bohn Aluminum & Brass Co. v. Kinney (1974), 161 Ind. App. 128, 314 N.E.2d 780.

Were it otherwise, the mandate of IC 22-3-4-8 which states that “[a]n award by the full board shall be conclusive and binding as to all questions of the fact” would be a nullity.