438 N.E.2d 722 (Ind. 1982), 882S297, Noblesville Casting Div. of TRW, Inc. v. Prince

Docket Nº882S297
Citation438 N.E.2d 722
Party NameNOBLESVILLE CASTING DIVISION OF TRW, INC., Appellant (Defendant below), v. Freddie J. PRINCE, Appellee (Plaintiff below).
Case DateAugust 11, 1982
CourtSupreme Court of Indiana

Page 722

438 N.E.2d 722 (Ind. 1982)

NOBLESVILLE CASTING DIVISION OF TRW, INC., Appellant (Defendant below),

v.

Freddie J. PRINCE, Appellee (Plaintiff below).

882S297

2-580 A 132

Supreme Court of Indiana.

August 11, 1982

Page 723

[Copyrighted Material Omitted]

Page 724

Paul J. Fields, Lowe, Gray, Steele & Hoffman, Edwin J. Bunny, Indianapolis, for appellant.

Arvin R. Foland, Noblesville, for appellee.

Edgar W. Bayliff, Bayliff, Harrigan, Cord, Maugans & Russell, P. C., Kokomo, for Indiana Trial Lawyers Ass'n as amicus curiae.

HUNTER, Justice.

This cause is before us on the petition to transfer of Freddie J. Prince, wherein he seeks review of the Court of Appeals' decision found at Noblesville Casting, Div. of TRW, Inc. v. Prince, (1981) Ind.App., 424 N.E.2d 1055. There, the Court of Appeals reversed the Full Industrial Board's award of workmen's compensation benefits to Prince. We hereby grant transfer, reverse and vacate the Court of Appeals' decision, and reinstate the award rendered by the Industrial Board. 1

Prince was employed as a maintenance man at Noblesville Casting. His duties consisted of general repair work throughout the plant.

On May 6, 1976, Prince and two fellow employees were assigned the project of repairing a flat car line which transported heavy flasks. Each flask, when empty, weighed two to three hundred pounds. Together, the three men were lifting the flasks and placing them on the line; as they attempted to lift one of the flasks which was filled with a casting and sand, the bulk of the weight shifted toward Prince. He experienced immediate pain in his back, groin, and left leg, and had difficulty straightening his back. The incident was reported to Prince's superiors; Prince left work for the remainder of the day.

A doctor examined Prince but found no evidence of a hernia. Thereafter, Prince resumed work but continued to experience intense and periodic pain in his back, as well as in his left leg. At times the pain prevented him from working.

On October 18, 1977, he entered the hospital for back surgery. A spinal fusion, which was designed to restrict motion and thereby alleviate pain, was performed on November 8, 1977.

Page 725

Following the operation, Prince was unable to return to work until July 12, 1979. Dr. William Norman, who performed the spinal fusion, stated that Prince had sustained fifteen percent impairment of the man as a whole as a result of the restriction in movement worked by the surgery. That impairment was additional to the existing thirty-five percent impairment Prince had sustained via two prior back operations in the late 1960s, when disks were removed.

Prince subsequently filed a claim for workmen's compensation; therein, he sought recovery for expenses incurred for medical care and hospital services and supplies, as well as compensation for his disability and impairment.

Pursuant to Ind. Code Sec. 22-3-4-6 (Burns 1974), a hearing was held before a single Hearing Member of the Industrial Board. Based on the stipulations of the parties and the evidence presented, the Hearing Member ordered Noblesville Casting to pay $6,607.71 to Prince for his medical expenses; in addition, Prince was awarded $90 per week for the thirty-eight week period of temporary total disability defendant sustained subsequent to his operation, and $60 per week for a period of seventy-five weeks as compensation for his post-operative impairment.

Noblesville Casting then exercised its statutory right to seek review of the award by the Full Industrial Board. See Ind. Code Sec. 22-3-4-7 (Burns 1974). Following a hearing on the matter, the Full Industrial Board affirmed the award as entered by the hearing officer.

Noblesville Casting then sought judicial review of the Full Board's decision. Ind. Code Sec. 22-3-4-8 (Burns 1974). Among the arguments presented to the Court of Appeals by Noblesville Casting were the concomitant contentions that inasmuch as the expert testimony regarding proximate cause had not established to a reasonable medical certainty a causative link between the accident and Prince's back problems, the expert testimony was inadmissible and, in turn, the evidence insufficient to sustain the award. The Court of Appeals, relying on this Court's decision in Palace Bar, Inc. v. Fearnot, (1978) 269 Ind. 405, 381 N.E.2d 858, agreed with Noblesville Casting, and so reversed the award entered by the Full Industrial Board.

In Palace Bar, Inc. v. Fearnot, supra, this Court stated:

"The probative value of the testimony of an expert witness is such witness' opinion as an expert based on facts and circumstances given to him or shown to him subsequent to the occurrence of the event. A doctor's testimony can only be considered evidence when he states that the conclusion he gives is based on reasonable medical certainty that a fact is true or untrue. A doctor's testimony that a certain thing is possible is no evidence at all. His opinion as to what is possible is no more valid than the jury's own speculation as to what is or is not possible. Almost anything is possible, and it is thus improper to allow a jury to consider and base a verdict upon a 'possible' cause of death." 269 Ind. at 415, 381 N.E.2d at 864 (emphasis original).

As the Court of Appeals observed, the expert testimony regarding the causative link between the accident and Prince's condition was characterized in terms of medical possibilities rather than reasonable certainties.

Dr. Norman was the sole expert witness to testify on the issue of causation; his testimony reads in pertinent part:

Q. "Well, from the physical examination and from what you observed during the operation, the kind of repair that you did make, what are the causes of such an injury or that would require this kind of repair?"

A. "Well, I think, basically, we do know that this man had previous trouble. He had previous disk trouble. He had subsequent changes as a result of that; namely, that of narrowing of the disk and what we call degenerative or arthritic changes.

"Of course, during this period he had evidence of sciatica nerve-root irritation from the changes that occurred in this area.

Page 726

"We see it at times when patients have had an injury superimposed upon these conditions which seems to aggravate or increase their ability and symptoms."

Q. "Certain external trauma could cause the sort of thing for which you operated on him?"

A. "Well, it could be--Let me say it this way:

"It could be an aggravating factor in producing more irritation or symptoms in this area."

Q. "Now, I would like for you to assume for a moment a few facts.

"If you would assume that Mr. Prince, back about May, 1977, [sic] was lifting a heavy object--A flask--at his employment and that in so doing as he was stooped over, the weight shifted to him and at that particular time he experienced pain down into his legs, down into his groin and, then, taking into consideration the history that you did take before the operation and what you have seen from your personal observations during the operation and thereafter; what, if any opinion, do you have with a degree of medical certainty as to the relationship between the lifting of the flask and necessity for the spinal surgery?"

[objection to hypothetical, overruled by Board]

A. "We know it is possible with the type of history you have given me, to reinjure his back, and we would in most cases, unless some evidence of fracture or dislocation or something of that nature, we would have to consider it as a strain or injury super-imposed upon a preexisting condition or an aggravation as I stated."

Q. "Now, as I understand the history that you took, you are acquainted with two prior laminectomys [sic]?"

A. "Yes. Disc surgeries."

Q. "The history that you have given, taking into consideration those things and the history that you took from the patient before the operation and assuming that on or about May the 6th, 1977, [year amended to 1976] while at his employment at Noblesville Casting Company, Mr. Prince, while stooping over to lift up a flask that had fallen from its little flatcar, while being assisted by two other individuals and that flask--Weighing 2-to-300 lbs and being in a stooped-over position--at that time the weight shifting on him and experiencing sharp pain in his legs and low back and into his groin, assuming what you observed in the X-rays, the things today about which you have testified, what is your opinion as to the relationship of such experience of pain and injury and the necessity for the spinal fusion that you performed?"

[objection to hypothetical, overruled by Board]

A. "I would have to say that with that type of history, it is possible to produce enough additional trouble and aggravation to require subsequent treatment as we have described." (Emphasis added.)

Dr. Norman's reliance on the word "possible" and use of the phrase "could be" bring his testimony within the sphere of our above-quoted statement in Palace Bar, as Prince concedes.

Alternatively, however, he argues two propositions. He maintains that either a literal application should not be applied to our language in Palace Bar, or that our opinion therein should be modified, clarified, or overruled. Likewise, our response is twofold. We here reject the notion that the admissibility and probative value of medical testimony is dependent upon the expert witness's ability to state conclusions in terms of "reasonable medical certainty"; lacking a clear majority here, our specific language in Palace Bar to the contrary should nonetheless be overruled.

Our decision rests on fundamental premises of our rules regarding opinion testimony by expert witnesses. First, it is well settled that an expert witness...

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