Bethlehem Steel Corp. v. Cummings

• Citation: 310 N.E.2d 565,160 Ind.App. 160
• Decision Date: 09 May 1974
• Docket Number: No. 2--773A164,2--773A164
• Parties: BETHLEHEM STEEL CORPORATION, Defendant-Appellant, v. David CUMMINGS, Plaintiff-Appellee.
• Court: Court of Appeals of Indiana

Page 565

310 N.E.2d 565

160 Ind.App. 160

BETHLEHEM STEEL CORPORATION, Defendant-Appellant, v. David CUMMINGS, Plaintiff-Appellee.

No. 2--773A164.

Court of Appeals of Indiana, Third District.

May 9, 1974.

Rehearing Denied July 10, 1974.

Larry G. Evans and Karen L. Hughes of Chester, Clifford, Hoeppner & Houran, Valparaiso, for defendant-appellant.

John J. Davie, LaPorte, for plaintiff-appellee.

GARRARD, Judge.

This is an appeal from a decision of the full Industrial Board (Board) awarding temporary total disability and permanent partial impairment for a low back injury.

The evidence favorable to the board's action may be summarized as follows: Prior to January 30, 1970, the claimant (Cummings) had experienced no problem with his back although he had a partial lumbarization of the first sacral segment of his spine together with a slight scoliosis, or curvature, of the spine.

On January 30 while attempting to carry a bucket of material weighing approximately 100 pounds, Cummings felt a sharp pain in his lower back which caused him to drop the bucket and fall to the floor. Upon reporting to the plant clinic he was placed on light duty. Four days later he again reported to the clinic that he had slipped at home and his back began hurting again. By February 6 he felt better and was returned to regular duty. He continued to work until April 12, although he testified to periodic discomfort with his back. On the 12th he went on vacation in lieu of layoff for reasons not related to this case and did not return to work until May 17. On May 30 he reported to the clinic that he had hurt his back on May 28 while attempting to lift a large ladle at work. On May 31 he awoke with a severe pain and went to a hospital. A herniated disc was subsequently discovered at the L5--S1 level. A laminectomy and spinal fusion were performed in July. In December Cummings filed his Form 9 Application.

The employer's appeal is based first upon the asserted significance of Cummings' pre-exisiting condition, and, secondly, upon the asserted significance of the May accident, which also occurred in the course and scope of Cummings' employment.

On the issue of Cummings' pre-existing back condition, the employer argues that the Board's findings are inadequate since they fail to specifically determine the extent of the claimant's congenital back defects and the extent of the aggravation caused by the industrial injury. The employer further asserts that the award is contrary to law since claimant is entitled to be compensated only for the aggravation.

In support of its position the employer cites IC 1971, 22--3--3--12, Ind.Ann.Stat. § 40--1305 (Burns 1965), which provides in part:

'If an employee has sustained a permanent injury . . . from other cause or causes than the employment in which he received a subsequent permanent injury by accident . . . he shall be entitled to compensation for the subsequent permanent injury in the same amount as if the previous injury had not occurred: Provided, however, That if the permanent injury for which compensation is claimed, results only in the aggravation or increase of a previously sustained permanent injury or physical condition . . . the board shall determine the extent of the previously sustained permanent injury or physical condition, as well as the extent of the aggravation or increase resulting . . . and shall award compensation only for that part . . . resulting from the subsequent premanent injury.'

Our prior decisions make it clear that the concern of this statute lies in those instances where a claimant at the time of the complained of incident is already suffering an impairment or disability in the affected members. Where he merely has a physical condition which renders him more susceptible to being injured, he is entitled to recover for the full extent of the injury received. Magazine v. Shull (1945), 116 Ind.App. 79, 60 N.E.2d 611; Bendix Products Div. v. Kolberg (1961), 133 Ind.App. 405, 172 N.E.2d 589; Steele v. Anderson Company (1956), 126 Ind.App. 445, 133 N.E.2d 896. See, also, Small, Workmen's Compensation Law, pp. 216, 217.

The Board found that 'plaintiff never injured his back in any accident or by any other means prior to January 30, 1970.' We have consistently held that the term 'injury' as used in Industrial Board proceedings refers to the occurrence of disability or impairment. Earhart v. Cyclone Fence Co. (1934), 99 Ind.App. 48, 190 N.E. 558; Hornbrook-Price Co. v. Stewart (1918), 66 Ind.App. 400, 118 N.E. 315. Accordingly, if supported by the evidence, this finding by the Board is sufficient to determine that there was no pre-existing impairment such as to invoke the proviso of § 40--1305.

In considering support for the finding, we will not weigh the evidence, but will consider only the evidence and reasonable inferences to be drawn therefrom most favorable to the finding. It is only where such evidence is so conclusive as to force a contrary conclusion from that reached by the Board, that the finding should not be sustained. U.S. Steel Corp. v. Dykes (1958), 238 Ind. 599, 154 N.E.2d 111; Smith v. Graver Tank & Manufacturing Co. (1973), Ind.App., 302 N.E.2d 852.

Here the claimant testified that he had no back problems or injuries prior to the January accident. In addition, Dr. Edward Mladick, the orthopedic surgeon who performed the surgery, testified that in his opinion the unilateral lumbarization had no direct relationship to the claimant's injury. This evidence is sufficient to support the finding.

Appellant also complains that the Board failed to make an apportionment between the effects attributable to the January accident and those attributable to the May accident. This contention is without...