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 |
Sam L. Litzenberger, Jr., Williamsport, for appellant-plaintiff below.
Don P. Campbell, Richard L. Rennick, Jr., Covington, for appellee-defendant below.
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.
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:
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:
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:
(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.
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:
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:
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