Bohn Aluminum & Brass Co., Plant No. 9 v. Kinney

• Decision Date: 01 August 1974
• Docket Number: No. 2--772A28,2--772A28
• Citation: 161 Ind.App. 128,314 N.E.2d 780
• Parties: BOHN ALUMINUM & BRASS COMPANY, PLANT #9, Appellant (Defendant below), v. Robert A. KINNEY, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 780

314 N.E.2d 780

161 Ind.App. 128

BOHN ALUMINUM & BRASS COMPANY, PLANT #9, Appellant (Defendant below), v. Robert A. KINNEY, Appellee (Plaintiff below).

No. 2--772A28.

Court of Appeals of Indiana, Second District.

Aug. 1, 1974.

John M. Clifton, Jr., Barrett, Barrett & McNagny, Fort Wayne, for appellant.

Edgar A. Grimm, Grimm & Grimm, Auburn, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Review is sought by defendant-appellant Bohn Aluminum & Brass Company, Plant #9 (Bohn), from an affirmative Award granted by the Full Industrial Board of Indiana (the Board) in favor of claimant-appellee Robert A. Kinney (Kinney) for temporary total disability resulting from injuries received by Kinney in operation of a payloader, claiming insufficient evidence and other errors by the Board.

We affirm.

CASE HISTORY

When this case was first considered by us on January 31, 1973, it was determined that the Findings of Fact originally entered by the Board on June 2, 1972, were not sufficiently specific to enable this Court to intelligently review the Board's decision. Bohn Aluminum & Brass Co. v. Kinney (1973), Ind.App., 291 N.E.2d 705.

Therefore, it was remanded with directions to the Board to submit Supplemental Findings specifically setting forth the time Kinney was injured, where he was injured, the nature of his injuries, and whether the injuries occurred in an accident arising out of and in the course of his employment with Bohn--all contested issues.

In compliance the Board submitted Supplemental Findings of Specific Facts on February 27, 1973; they are set forth below.

FACTS

The evidence before the Board most favorable to Kinney indicates the following:

On December 2nd, 1970, while operating a payloader on Bohn's premises, the backrest of the payloader's seat upon which Kinney was sitting became wedged in the arms of the payloader, causing him to be pinned between the back of the seat and the steering wheel, resulting in injury to his back.

Kinney went to the Plant nurse for medical attention and referral to a doctor, but as the accident occurred near quitting time (5:00 P.M.) no referral was made.

The following day, Kinney visited his personal physician who prescribed medication for his back injury, which he continued to take for the next two and one-half weeks.

Kinney did not return to work until December 7, 1970, and continued working off and on until December 21, 1970, at which time he contacted the Plant nurse and described his back injury, whereupon he was instructed to see Dr. Shultz, the Plant physician. He diagnosed Kinney's injury as a lumbosacral myofascial sprain and prescribed medication, exercises and a lumbosacral back support. At that time, Dr. Shultz considered Kinney 'occupationally disabled' and directed him to remain off work.

Kinney continued under Dr. Shultz' care with weekly examinations until January 25, 1971, at which time he authorized Kinney to return to work, but limited his physical activities.

Kinney then returned to work on January 27, 1971, and continued under Shultz' care for an additional six weeks.

Kinney remained at Bohn working on and off as he was physically able. But he was told by Bohn that if he was incapable of working at the job assigned, he would be of no use to the company, whereupon Kinney terminated his employment on April 22, 1971.

Kinney testified he had no back problems prior to December 2nd, 1970, and that such problems had continued to the date of the hearing, November 10, 1971.

Kinney's claim was heard by a Hearing Member who, based on the foregoing evidence, awarded benefits for temporary total disability for a period of nine weeks, plus medical expenses. Thereafter, Bohn filed an Application for Review by the Full Board, and on February 27, 1973, the Board filed the following 'Findings of Fact':

'That on the 2nd day of December, 1970, the plaintiff was working the socalled second shift at the defendant's place of business and said plaintiff was in the process of driving a motorized-type vehicle which was called a payloader and was using said device to charge the furnaces at defendant's place of business.

'That at a time roughly approximating 5:00 P.M., during which time the plaintiff 'That as a result of said accident and more particularly the direct result of the squeezing and pinning of said plaintiff between the payloader steering wheel and the payloader seat, the plaintiff received an injury which was in the nature of an injury to his back.

was steadily engaged in work for the defendant, and on December 2, 1970, the said plaintiff was charging one or more furnaces at the defendant's place of business using said payloader and the seat on said payloader shifted in some unknown or unexplained manner and the hydraulic arms or other working machanics on said payloader shifted in such a fashion so as to push or press the seat upon which the plaintiff was seated and thereby pushed and pinned the plaintiff over against the steering wheel of said payloader and squeezed him between the payloader steering wheel and the payloader seat and the back thereof. That this event, pinning and squeezing the plaintiff, as hereinbefore set out, was an unusual and untoward event and the Board finds that it was in fact an accident arising out of and in the course of the plaintiff's work and employment for the defendant and that said accident took place on or about 5:00 P.M. on December 2, 1970.

'The Board further finds that as a result of the aforesaid accidental injury arising out of and in the course of the plaintiff's employment with the defendant on December 2, 1970, the plaintiff's injury, to his back, was such that he was unable to work and was temporarily totally disabled from working for a period of time commencing on or about December 3, 1970, and for a period, intermittent, of nine (9) weeks after said date.

'The Board also finds as a fact that the plaintiff incurred medical expenses in the sum of $119.75 which medical expense is found to be reasonable and which the defendant should pay to Dr. Clifford J. Shultz who provided such medical services for said plaintiff.'

FULL INDUSTRIAL BOARD OF INDIANA

/s/ Robert W. McNevin

/s/ Richard J. Noel

/s/ Bryant D. Livengood

/s/ Richard J. Cronin

The foregoing facts were based upon testimony by Kinney, the Plant nurse, and Dr. Shultz.

ISSUES

ISSUE ONE.

Were the Findings of Fact entered by the Board supported by sufficient evidence of probative value?

ISSUE TWO.

Did the Board err in excluding certain hearsay evidence offered by Bohn?

ISSUE THREE.

Was the Award entered by the Board contrary to law because it granted Kinney benefits for nine (9) weeks of temporary total disability?

ISSUE FOUR.

Were the Supplemental Findings of Specific Fact made by the Board in conformity with IC 1971, 22--3--4--7, Ind.Ann.Stat. § 40--1511 (Burns Supp. 1973)?

As to ISSUE ONE, Bohn contends that the evidence, as reviewed by the Full Board, cannot sustain the Findings of Fact entered by the Board because there is no substantial evidence to support them and further that there is no rational basis to support the Award. This contention is based upon testimony presented before the Hearing Member by Kinney's doctor to the effect that the injury was inconsistent with the type of injury normally resulting from such an accident, upon testimony from a fellow employee that Kinney continued bowling during the period in question, and upon proffered testimony by Bohn's paymaster to the effect that Kinney's wife stated his absence from work was because he hurt his back at home.

Kinney argues that this Court may not weigh the evidence, and accepting that evidence most favorable to him is of sufficient probative value to sustain the Findings made and Award entered by the Board.

As to ISSUE TWO, Bohn asserts that the Board erred by excluding proffered hearsay testimony to which objection had been made.

Kinney contends that the hearsay evidence offered by Bohn's witness was rightfully excluded by the Board because the testimony did not come within one of the exceptions to hearsay evidence, and the Board did not, therefore, abuse its discretion by refusing to hear such testimony.

As to ISSUE THREE, Bohn contends that the uncontroverted testimony proved that Kinney was absent from work as a result of his temporary total disability for a total of only thirty-eight (38) days during the nine (9) week period awarded by the Board.

Kinney argues that the evidence clearly proves the injuries resulting from the accident caused him to be absent from work a total of sixty-nine and one-half (69 1/2) days during the three (3) month period in which he suffered from those injuries.

As to ISSUE FOUR, Bohn contends that the Supplemental Findings of Specific Fact made by the Board were not made by the Full Board and are, therefore, contrary to the Statutes of this State. ¹

DECISION

ISSUE ONE.

CONCLUSION--It is our opinion that there was sufficient evidence of probative value presented before the Hearing Member, as reviewed by the Full Board, to sustain the Findings of Fact.

Courts of appeal are reluctant to disturb administrative findings of fact.

IC 1971, 22--3--4--8, Ind.Ann.Stat. § 40--1512 (Burns 1965) states: 'An award by the full board shall be conclusive and binding as to all questions of (the) fact . . ..'

It has been repeatedly stated by this and the Indiana Supreme Court that review of an Award made by the Industrial Board which questions the sufficiency of the evidence upon which the Board based its Findings, will be limited:

'. . . to an examination of the evidence to ascertain whether the finding of the Industrial Board does not rest upon a substantial factual foundation. We may reverse the award only . . . (1) If it should appear that the evidence upon which the Industrial Board acted was devoid of probative value; (2) That the quantum of legitimate evidence was so proportionately meager as to show that the finding does not rest upon a...