Bowling v. Fountain County Highway Dept.

• Decision Date: 25 November 1981
• Docket Number: No. 2-981A292,2-981A292
• Citation: 428 N.E.2d 80
• Parties: Robert BOWLING, Appellant-Plaintiff Below, v. FOUNTAIN COUNTY HIGHWAY DEPARTMENT, Appellee-Defendant Below.
• Court: Indiana Appellate Court

Page 80

428 N.E.2d 80

Robert BOWLING, Appellant-Plaintiff Below, v. FOUNTAIN COUNTY HIGHWAY DEPARTMENT, Appellee-Defendant Below.

No. 2-981A292.

Court of Appeals of Indiana, Third District.

Nov. 25, 1981.

Sam L. Litzenberger, Jr., Williamsport, for appellant-plaintiff below.

Don P. Campbell, Richard L. Rennick, Jr., Covington, for appellee-defendant below.

STATON, Judge.

Robert Bowling appeals a negative award entered by the Industrial Board on his claim for workers' compensation benefits. On appeal, Bowling raises the following issues for review:

(1) Is the Board's conclusion that Bowling did not sustain a personal injury by accident arising out of and in the course of his employment contrary to law?

(2) If Bowling sustained a compensable injury, should his permanent partial impairment be assessed at 10% or 20% of the man as a whole?

Affirmed.

The Board's findings of fact reveal that Bowling was employed by the Fountain County Highway Department. On or about March 28, 1977, Bowling, while stepping off the back end of a "lowboy" trailer, experienced a sudden onset of pain in his lower back. The distance between the trailer from where Bowling alighted to the ground was about eighteen inches. Bowling stepped from the trailer in a normal manner with one foot preceding the other. Bowling thereafter underwent back surgery and was unable to return to work for 231/7 weeks.

The Board found that Bowling "had a preexisting back condition which predisposed (Bowling) to suffer incidents such as (the) one suffered on or about March 28, 1977." The Board then made the following ultimate finding of fact:

"It is further found that plaintiff did not suffer an accidental injury within the meaning of the Workmen's Compensation Act in that plaintiff merely experienced pain as a result of a 'trivial incident' and plaintiff's preexisting condition had degenerated to a point that it cannot be said that plaintiff's employment caused the injury in question."

Bowling initiated this appeal from the Board's denial of his claim for workers' compensation benefits.

I. Compensable Injury

Bowling challenges the Board's conclusion that he did not sustain a compensable injury by a work-related accident. Bowling contends that his back injury was caused by the act of stepping off the trailer at work. That act, Bowling contends, constituted a work-related accident within the terms of the Workers' Compensation Act.

Before workers' compensation benefits may be awarded, the claimant must establish that he or she sustained a "personal injury ... by accident arising out of and in the course of the employment...." IC 1976, 22-3-2-2 (Burns Code Ed.) (amended 1981). The phrase "personal injury" as used in IC 22-3-2-2 "shall mean only injury by accident arising out of and in the course of the employment...." IC 1976, 22-3-6-1(e) (Burns Code Ed., 1980 Supp.) (amended 1981). Referring to the overlapping language used in IC 22-3-2-2 and IC 22-3-6-1(e), Dean Small observed:

"These few words, deceptively simple, have been the source of more than half of the recorded litigation under the Workmen's Compensation Act. Each phrase-personal injury, accident, out of, in the course of-has given rise to countless rounds of judicial contortions...."

Small, Workmen's Compensation Law of Indiana § 5.1, at 98 (1950). ¹ The present case requires this Court to focus its inquiry upon the existence of a work-related accident, for it is undisputed that Bowling sustained a personal injury. It must be determined whether that injury was caused by a work-related accident.

Some guidance in determining whether a work-related accident occurred has been given recently by the Supreme Court:

"It is well settled under our law that in order to show an accident there must be some untoward or unexpected event. It has been further described as an unlooked for mishap or untoward event not expected or designed. It is not sufficient to merely show that a claimant worked for the employer during the period of his life in which his disability arose. George v. Interstate Metal Products (1955), 125 Ind.App. 406, 126 N.E.2d 258; Haskell & Barker Car Co. v. Brown (1917), 67 Ind.App. 178, 117 N.E. 555; Small, Workmen's Compensation Law of Indiana § 5.1, p. 33 (Segar.Supp.1968)."

Calhoun v. Hillenbrand Industries, Inc. (1978), 269 Ind. 507, 510-11, 381 N.E.2d 1242, 1244. While it is "well settled" that an accident requires "some untoward or unexpected event" to occur during the performance of the claimant's regular work duties, opinions begin to diverge when Indiana appellate courts attempt to identify the kind of untoward or unexpected event that will be termed an "accident." ² One court has summarized the conflict as follows:

"In defining the unexpected event our courts have utilized two theories: the unexpected cause and the unexpected result. Under the unexpected cause theory an 'accident' cannot occur in the absence of some kind of increased risk or hazard, e. g., a fall, slip, trip, unusual exertion, malfunction of machine, break, collision, etc., which causes the injury. Under the unexpected result theory an 'accident' may occur where everything preceding the injury was normal, and only the injury itself was unexpected, e. g., where a worker bends over, stoops, turns, lifts something, etc., which activity is part of his everyday work duties, and yet, as in the case at bar, he is unexpectedly injured." (footnotes omitted)

Ellis v. Hubbell Metals, Inc. (1977), Ind.App., 366 N.E.2d 207, 211-12; see also, Jaskowiak, supra, 13 Val.L.Rev. at 541-48.

It is before this legal backdrop that the merits of Bowling's appeal must be evaluated. The facts of this appeal, however, do not require this Court to immerse itself in the unexpected cause versus the unexpected result maelstrom. Suffice it to say that under either legal theory, a causal relationship must exist between the accidental injury and some act incidental to the claimant's employment. It may be undisputed that the claimant sustained an injury but for it to be a compensable injury under the Workers' Compensation Act, the injury must have arisen from a work-related accident. On point is the following passage:

"A statutory concomitant to the existence of an accident requires that such accident arise out of and in the course of employment. Tom Joyce 7-Up Co. v. Layman (1942), 112 Ind.App. 369, 44 N.E.2d 998... It is generally held that an accident arises out of the employment when there exists some causal nexus between the injury complained of and the duties or services performed. Tom Joyce 7-Up Company v. Layman, supra; Lasear, Inc. v. Anderson (1934), 99 Ind.App. 428, 192 N.E. 762. In Lasear, Inc. v. Anderson, supra, the court explained:

'Causal relation is established when the accident arises out of a risk which a reasonably prudent person might comprehend as incidental to the employment at the time of entering into it, or, when the facts show an incidental connection between the conditions under which the employee works and the injury.' 99 Ind.App. at 434, 192 N.E. at 765.

"It is therefore incumbent upon claimant to prove the causal relationship by substantial evidence of probative value. But a claimant for benefits under the act need not negate all other possible causes for the disability. Rankin v. Industrial Contractors, Inc. (1969), 144 Ind.App. 394, 246 N.E.2d 410."

Estey Piano Corp. v. Steffen, supra, 164 Ind.App. at 243, 328 N.E.2d at 243. Judge White, in his concurring opinion in Rivera, supra, followed a similar line of reasoning:

"In many instances the onset of pain, especially the sudden onset of severe pain, is an untoward event and most certainly is an 'accident' so far as the person who suffers the pain is concerned. In many instances the sudden onset of severe pain is the manifestation of an injury which has just occurred at the site of the pain, i. e., the rupture of some body tissue, or the blockage of the coronary artery. Such an event is an 'injury by accident arising ... in the course of the employment', as required by §§ 2 and 73 of the 1929 Workmen's Compensation Act, as amended, (Ind.Ann.Stat. §§ 22-3-2-2 and 22-3-6-1 (Burns Code Ed., 1973)) but the injury is not compensable merely because it occurs in the course of the employment. Id. It must also arise 'out of' the employment. That is the teaching of United States Steel Corporation v. Dykes (1958), 238 Ind. 599, 154 N.E.2d 111. There the steadily deteriorating condition of decedent's heart eventually reduced its functional ability to the point that it could not sustain life even when the work load was lighter than usual. Ergo, the employment did not cause the heart failure; it was caused by the deceased's heart itself."

Rivera, supra, 164 Ind.App. at 389, 329 N.E.2d at 44. One commentator finds extensive support for these observations in several Indiana appellate court decisions:

"In passing, however, it should be noted that the Court still requires some untoward or unexpected event, however unspectacular it may be, so that the mere fact of being employed at the time a disability arose will not suffice. This does not mean, however, that the Court has reverted to sudden traumatic violence as a test for accidental injury. In keeping with many of the older 'wear and tear' cases cited in the text at this point and at § 6.20, the Court continues to hold that general pathological breakdown may be compensable if something in the employment serves to precipitate or aggravate the existing or preexisting defective condition. The recent heart cases are the best examples. And the point is brought out in one of those cases that 'accident' as used in the Compensation Act must be distinguished from the concept surrounding the same term as used in the accident insurance cases, where presumably, it is given a stricter meaning. Where the medical evidence specifically connects a back difficulty to a specific lifting incident, the...