American Maize Products Co. v. Nichiporchik

• Decision Date: 12 November 1940
• Docket Number: 16631.
• Citation: 29 N.E.2d 801,108 Ind.App. 502
• Parties: AMERICAN MAIZE PRODUCTS CO. v. NICHIPORCHIK.
• Court: Indiana Appellate Court

29 N.E.2d 801

108 Ind.App. 502

AMERICAN MAIZE PRODUCTS CO. v. NICHIPORCHIK.

No. 16631.

Appellate Court of Indiana, in Banc.

November 12, 1940

McAleer Dorsey, Travis & Young, of Hammond, for appellant.

Frederick C. Crumpacker, Jr., of Hammond, and Herbert M. Wetzel, of Chicago, Ill., for appellee.

STEVENSON Judge.

This is an appeal from an award of the Full Industrial Board of Indiana wherein the appellee was granted compensation at the rate of $13.64 per week for the period of his temporary total disability, not exceeding the period fixed by law.

The facts upon which this award was based appear in the findings of the board. These findings are as follows:

"And the Full Industrial Board, having heard the argument of counsel, having reviewed the evidence, and being duly advised therein, now finds that on March 24, 1939, and for approximately thirteen years prior thereto, plaintiff was employed by defendant at an average weekly wage of $24.80 that for approximately ten years prior to March 24, 1939, the plaintiff was employed as a bucker in riveting steel tanks and that during the course of such employment and over a long period of time plaintiff's right and left hands were subjected to a series of traumatic concussions delivered on the palms of each hand as a result of an air hammer driving rivets against which plaintiff was holding what is commonly known as a dolly bar; that as a result of the series of traumatic concussions so delivered to plaintiff's right and left hands over a long period of time, the plaintiff suffered injuries which manifested themselves on March 24 1939, to the second, third and fourth fingers of such hands and to the thumb of the right hand, causing such fingers of each hand to become in a fixed contracted position, from which accidental injury plaintiff has been temporarily totally disabled since March 24, 1939, and is so disabled at the time of this hearing.

"It is further found that said condition is known to medical science as Dupuytren's contraction. It is further found that prior to the 24th day of March, 1939, said plaintiff had in each of his hands a pre-existing condition which was accelerated by the series of traumatic concussions applied to said hands."

From the award based upon these findings the appellant appeals, assigning as error that the final award of the Full Industrial Board of Indiana is contrary to law. Under this assignment of error the appellant contends that the injury for which compensation was awarded was not occasioned "by accident arising out of and in the course of employment."

The appellant contends that the finding of the Industrial Board does not describe an accident as contemplated under the Workmen's Compensation Act, Burns' Ann. St.1940, Vol. 8, § 40-1201 et seq., but describes only an injury which resulted from the nature and character of the particular employment. The appellant does not deny that the appellee at the time of the hearing was suffering from an impairment to his hands. There was medical testimony to the effect that the muscles of the appellee's hands had contracted to such an extent that the appellee was unable to use his hands in the performance of any labor. The doctors further agreed that he was suffering from Dupuytren's contraction, which is a pathological condition involving the palmar fascia of the hands. There was further testimony to the effect that this condition was the result of the blows received on appellee's hands when the steel bar was driven against the palms of his hands by the rivet hammer. The appellee testified that he first felt pain in the fingers and palm of his left hand about three years prior to March 24, 1939, and that from time to time he noticed that his hands became stiff after doing this type of work. He stated that this condition grew gradually worse until the fingers and thumbs of both hands developed into a fixed contracted position with the result that he could neither open nor close his hands.

The question therefore presented for our decision is whether or not such a condition is the result of an accident within the meaning of the Workmen's Compensation Law.

The words "injury" and "accident" have been frequently defined by this court and by courts in many other jurisdictions. Our statute provides that "'injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of employment and shall not include a disease in any form except as it shall result from the injury." Sec. 40-1701, Burns' Ind.Statutes, 1933 Rev., Sec. 16449, Baldwin's Ind.Statutes 1934. The term "accident" as used in this act has been repeatedly defined as "an unlooked for mishap, an untoward event, which is not expected or designed." General, etc., Tank Car Corp. v. Weirick, 1921, 77 Ind.App. 242, 245, 133 N.E. 391. Our court has further stated that an injury may be the result of accidental means though the act involving the accident was intentional. General, etc., Tank Car Corp. v. Weirick, supra. This court has also approved the following definition of "accidental means": "An effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing under the maxim to which we have adverted, is produced by accidental means. It is produced by means which were neither designed nor calculated to cause it. Such an effect is not the result of design, cannot be reasonably anticipated, is unexpected, and is produced by an unusual combination of fortuitous circumstances; in other words, it is produced by accidental means." General, etc., Tank Car Corp. v. Weirick, supra, 77 Ind.App. at page 245, 133 N.E. at page 392.

The courts of last resort in many states have been called upon frequently to define the term "accident" as used in workmen's compensation statutes. While the language of these various statutes differ, the current of authority seems to be that "unforeseen, unexpected, and unintended injuries to employees have been classed as 'accidents' and held sufficient to justify awards." Demagalski v. State Industrial Accident Commission of Oregon, 1935, 151 Or. 251, 47 P.2d 947, 950; Maryland Casualty Co. v. Rogers, Tex.Civ.App.1935, 86 S. W.2d 867.

Do the facts as found by the Industrial Board in the case at bar justify an award for an injury by accident as contemplated by our statute? The authorities cannot be reconciled on this proposition.

Facts similar to those in the case at bar have been before the courts of many states, in some of which compensation has been allowed and in some of which compensation has been denied.

In the case of Aldrich v. Dole et al., 1926, 43 Idaho 30, 249 P. 87, the appellant was a truck driver. The gears of the truck driven by the appellant had become so worn that in order for him to travel at high speed, it was necessary for him to press the shift lever with his right knee. In so doing the cogs would slip out of mesh and cause the lever to strike the knee; and the pressing of the knee against the lever and the striking of the knee by the lever caused the knee to become bruised to such an extent that the claimant became disabled. The question presented was whether, as a matter of law, this injury was sustained by an accident arising out of and in the course of his employment. In passing upon this question, the Supreme Court of Idaho said, at page 88 of 249 P.: "Had there been a single occasion when the knee pressed the lever and was struck by it, and injury had resulted therefrom, there would be no difficulty in concluding that the injury was received by accident. In such case it would be said that in the discharge of his duties, the workman placed his knee against the lever, the lever struck the knee, the injury resulted; and it would not be said that the injury was usual, was expected, or was designed. Now, if the single pressing of the knee against the lever and the single striking of the knee by the lever would result in an injury by accident, can we say that the injury actually received was not caused by accident merely because there was a continuation of the causes that brought on the injury? The statute does not restrict compensation to an injury that results from a single event, and there would seem to be no sound reason for holding that an injury occasioned by a number or series of events is not within the act. The continuous pressing of the lever and the repeated striking of the knee had a cumulative effect so that the injury came on gradually; and claimant received the unexpected and unintentional injury during the time of the operation of the causes that produced the injury."

In the case of Lovell v. Williams Bros., Inc., Mo.App.1932, 50 S.W.2d 710, the claimant was employed in digging a ditch. In digging the ditch he used a pick, shovel, and a tile spade. In the course of his work he had to gouge with his spade, using the blade of it to cut roots and hard earth along the bank of the ditch. In doing this work he used his right hand on the top of the handle of the spade. As a result of so using this spade the hand became swollen and painful after several days of such use.

As a result of this condition, the plaintiff's hand was disabled. In passing upon his right to compensation the St Louis Court of Appeals said, at page 713 of 50 S.W.2d: "There can be no question that the plaintiff's injury happened violently, nor do we think there ought to be any question that it happened suddenly, within the meaning of the act. The commission found, and the evidence shows, that the plaintiff used the spade with his right hand in hitting...