Opinion
[167 Ind.App. 707] Theodore L. Locke, Jr. and Michael A. Bergin, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellant.
Charles S. Brown, Jr. and Nancy S. Brown, Brown & Brown, New Castle, for appellee.
OPINION ON REHEARING
SULLIVAN, Judge.
Appellee Richard L. Dudley has filed his Petition for Rehearing addressed to the decision and opinion of this Court which were rendered January 29, 1976 as reported at 340 N.E.2d 808. The decision, in which the author of this opinion concurred, reversed an affirmative award by the Industrial Board upon the basic premise that the only reasonable conclusion which could be reached from the Board's findings and from the evidence was that the claimant was [167 Ind.App. 708] intoxicated at the time of the vehicle collision which injured him, that such injury was due to his intoxication and that therefore pursuant to Ind.Ann.Stat. § 22--3--2--8 (Burns Code Ed. 1974) claimant was, as a matter of law, not entitled to compensation.
Judge White filed a separate opinion concurring in part and dissenting in part.
The 'Findings' of the Full Industrial Board are set forth in their entirely in the reported decision 340 N.E.2d 808 at 810--811. They are here repeated:
'At the initial hearing, on April 2, 1973, in New Castle, Indiana, it was mutually STIPULATED at the commencement of the evidence that the alleged accident occurred August 18, 1971; that plaintiff's average weekly wage exceeded the maximum of $100; and that plaintiff was employed as a Veterans' Service Officer for Henry County; that he was married and had two dependents.
'The issue was the question of whether by plaintiff's conduct he destroyed his right to compensation. Defendant filed special answer on December 14, 1972, alleging that the proximate cause of plaintiff's injuries at the time of said accident was plaintiff's intoxication; which special answer is in the following words and figures, to-wit:
'Plaintiff testified that he and his wife, both of whom worked, arose early because both had to be at their offices, she by 8:00 A.M.; that sons Dean, fifteen, and Douglas, seventeen, were home for summer vacation.
'That Mrs. Evelyn Dudley was a candidate for New Castle City Treasurer, and the whole family campaigned daily when possible, including each evening following work.
'That on this day of August 18, 1971, plaintiff was scheduled to take a World War One veteran, Mr. John Black, to Veterans Hospital in Indianapolis.
'That the two men left New Castle about 7:30 A.M. in plaintiff's pickup truck, traveling west on Indiana State Road 234, and arrived at the Veterans Hospital on West Tenth Street around 9:30 A.M. Plaintiff left Black at the Veterans Hospital and began the return trip to New Castle.
'That Mrs. Dudley had requested plaintiff to stop at the PX at Fort Benjamin Harrison and purchase some cigarettes, charcoal, and other items.
[167 Ind.App. 709] 'In his testimony plaintiff repeatedly denied any remembrance of having an automobile accident.
'There was testimony that plaintiff had sometime prior to this day of August 18, 1971, received a letter from General Motors to deliver his Chevrolet truck back to the dealer for check or repair of some part of the front end spring and brakes, which the factory had apparently found defective in other vehicles of like kind; however, the testimony also included the truck had always operated properly prior to this day.
'That the plaintiff on the above date and time was the County Service Officer; however, he was forced to give that up following this vehicle accident, which has left him badly incapacitated.
'That this accident was an almost headon collision west of New Castle on No. 234, when plaintiff, while returning to New Castle, collided with a Henry County Highway gravel dump truck.
'That since the plaintiff has denied any recollection of the accident, the facts concerning it have been supplied by the other driver, Mr. Sidney Shrout, and the investigative State Police Officer--eight-tenths of a mile west of New Castle City limits.
'That following said accident and while plaintiff was lying in Emergency Receiving and blood was dripping from plaintiff's badly mutilated left leg, State Police Officer Petree held a blood capsule under the dripping leg. He collected some blood as it left plaintiff's body.
'That following obtaining this specimen Officer Petree put capsule, with a filled-out alcohol influence form, in a blood vial container and mailed it to Indiana State Police Laboratories. That testimony presented indicates the test was not processed in the Laboratory for four to twenty-seven days, after which time the officer conducting the test testified that the test result was .41, et. (sic)
'That it was as a result of this specifically named gaschromatograph test that defendant, by its attorneys, filed the special answer, addressed to the principle that 'due to the fact that plaintiff was, while on a mission for his employer, the defendant, under the influence of alcohol and that, as a direct result, caused the collision between his, the plaintiff's truck and a Henry County Highway gravel dump truck, the plaintiff should be denied compensation.'
[167 Ind.App. 710] 'That as a result of this collision the plaintiff suffered near fatal painful and permanent injuries, which an examining physician, Dr. Lowell Thomas, estimated as being 75% of the man as a whole.
'That the blood sample obtained from the injured plaintiff was obtained by the investigating State Police Officer in the hospital emergency room from the unconscious plaintiff and there is no additional evidence to establish that intoxication was a proximate cause of plaintiff's injuries.
'That it is further found the disagreement between the parties, resulting in the filing by the plaintiff of a Form 9, results in the majority of the Full Board's decision that the plaintiff is entitled to compensation for his injuries since he obviously has reached the highest level of improvement he will ever attain.
'It is further found that plaintiff should be awarded compensation for temporary total disability at the rate of $66 per week for the statutory period of 26 weeks, beginning August 18, 1971, and compensation at the rate of $60 per week for a specific period of 375 weeks, beginning August 18, 1971, for permanent partial impairment of 75% of the body as a whole, his statutory medical expenses; and costs, if any there be.
'The Full Industrial Board of Indiana now finds for the plaintiff and against the defendant on plaintiff's Form 9 application filed herein on March 16, 1972, and finds against the defendant and for the plaintiff on defendant's special answer filed on December 14, 1972.'
The Petition for Rehearing alleges in part as follows:
'1. The Court states that the Industrial Board found Dudley's blood alcohol level to be .41. Nowhere in its findings does the Board make such a statement. In fact, it specifically 'finds against the defendant and for the plaintiff on defendant's special answer . . .' The Board's finding that there was no evidence beyond the testimony of the State Police Officer to establish intoxication very clearly indicates that the Board did not give credence to the testimony of that officer, and that the burden of proof as to intoxication was not sustained by the employer.'
This allegation has prompted the author of this opinion to give careful reconsideration to the matter heretofore decided and upon reflection the author of this opinion has concluded that as stated by Judge White in his separate earlier opinion:
[167 Ind.App. 711] 'The Industrial Board made no findings of fact, either general or special, on those issues (of intoxication and causation). It merely recited the evidence relevent thereto.' 340 N.E.2d at 814.
Accordingly, and in the interests of justice, it is the decision of a majority of the court that the opinion of January 29, 1976 be and the same is now vacated and set aside.
The award of the Board is reversed and the cause is remanded to the Board with instructions for it to discharge its statutory duty by finding the essential facts and by entering an award based thereon.
WHITE, J., concurs in result for the reasons stated in his prior opinion.
BUCHANAN, P.J., dissents with separate opinion.
BUCHANAN, Presiding Judge (dissenting).
I dissent to the action taken by the majority on rehearing on two grounds:
1. The clear implication of the Findings is that Dudley's injuries were due to his intoxication.
2. It is unnecessary to remand this case to the Board for more specific findings because the Board's decision should be reversed in any event as the evidence is substantially without conflict and supports only one reasonable conclusion, a conclusion which the Board did not reach.
GROUND I--While the Findings are clouded by some evidentiary language, taken as a whole, they clearly imply Dudley was intoxicated.
The Findings emphasize that Dudley had no recollection of the accident.
The Findings recite that 'however the testimony also included the truck had always operated properly to this day,' which implies that the truck did operate properly on the day in question.
[167 Ind.App. 712] The Findings recite 'that this accident was an almost head-on collision west of New Castle . . ..'
The Findings recite that 'the facts concerning it (the accident) have been supplied by the other driver, Mr. Sidney Shrout, and the investigative State Police Officer . . .', thereby seeming to signal the Board's acceptance of the testimony of Mr. Shrout and the State Police Officer. Mr. Shrout had testified that Dudley 'just cut right out' of his lane into the opposite lane and struck Shrout's truck on the wrong side of the road.
The Findings recite in some detail the testimony of the police officer that the result of the gaschromatograph test was .41%, again implying that such was the fact.
The Findings appear to recognize Dudley's intoxication by stating '. . . there is no additional evidence to establish that intoxication was a proximate cause of Plaintiff's injuries.'
The sum total of that the Board specifically found and impliedly found by singling out certain evidence and emphasizing such evidence, is that Dudley was intoxicated.
While neither as specific or artful as they should be, the cumulative effect of the Findings is that Dudley was intoxicated, but for some reason not appearing in the record the Board shrunk from reaching a conclusion that his intoxication caused his injuries, which would be consistent with its Findings.
GROUND II--In my opinion it would serve no useful purpose to remand this case for more specific findings because the only reasonable inference arising from the uncontradicted evidence is that Dudley's intoxication caused his injuries.
See authorities cited in the original opinion of this case at 340 N.E.2d at 813. Board of Commissioners of Henry County v. Dudley (1976), Ind.App., 340 N.E.2d 808.
Dudley could remember nothing, his truck had always operated properly, his blood alcohol level was .41%, he had a collision on the wrong side of the road while returning to [167 Ind.App. 713] New Castle, there was an odor of alcohol in his truck, and on a clear day he 'just cut right out' of his lane into the opposite lane and struck almost headon Shrout's truck which was forced to brake suddenly and go off its side of the road in attempting to avoid Dudley. The only reasonable inference from this uncontradicted evidence was that Dudley was intoxicated and that his injuries were due to his intoxication which proximately caused the collision. The Board seems to recognize the fact of intoxication but concludes that the intoxication was not a proximate cause of Dudley's injuries. But there is no other evidence before the Board of any other cause of the collision.
As Judge White reminds us in his original concurring and dissenting opinion, the Board may disbelieve otherwise uncontradicted testimony, but only if unreasonable or inconsistent with facts and circumstances shown by the other evidence in the case. See, Board of Commissioners of Henry County v. Dudley, supra, 340 N.E.2d at 815; Wright v. Peabody Coal Co., (1948), 225 Ind. 679, 687, 77 N.E.2d 116. There is no such other evidence in this case. To return the case for more specific findings is indeed a meaningless endeavor.
The Board has acted arbitrarily. It has rejected the only reasonable inference possible from the evidence and its own Findings and its decision should be reversed as a matter of law . . . all as more fully stated in our original opinion at 340 N.E.2d 808, which is now vacated by action of the majority of this Court. Also see, DeMichaeli & Associates v. Sanders (1976), Ind.App., 340 N.E.2d 796 (handed down January 28, 1976).