Chestnut v. Coca Cola Bottling Co.

• Decision Date: 22 October 1969
• Docket Number: No. 2,No. 669A96,669A96,2
• Citation: 251 N.E.2d 575,145 Ind.App. 504
• Parties: James C. CHESTNUT, Appellant, v. COCA COLA BOTTLING COMPANY, Indianapolis, Indiana, Appellee
• Court: Indiana Appellate Court

Page 575

251 N.E.2d 575

145 Ind.App. 504

James C. CHESTNUT, Appellant, v. COCA COLA BOTTLING COMPANY, Indianapolis, Indiana, Appellee.

No. 669A96.

Appellate Court of Indiana, Division No. 2.

Oct. 22, 1969.

Rehearing Denied Dec. 1, 1969.

Ross P. Walker, Indianapolis, for appellant.

Goeffrey Segar, Edward J. Ohleyer, Indianapolis, for appellee.

HOFFMAN, Judge.

This is an action for judicial review of a negative finding of the Full Industrial Board of Indiana denying appellant's claim for compensation.

The stipulation of facts entered into by the parties hereto discloses the following circumstances:

On March 18, 1968, appellant-Chestnut was in the employ of appellee and worked as a porter for wages in excess of $85 per week. Appellant had been employed by appellee for approximately 27 years. His duties consisted of 'moving things and cleaning up.' For a period of some four years prior to the date in question, appellant had experienced pain in his lower back.

The record before us discloses, from the testimony of the appellant, the following facts pertinent to the incident complained of, and such testimony is summarized and set forth in appellant's brief at page 12, as follows:

'On March 18th, I just stooped over to take up some glass and I heard a 'pop.'

I did not slip. I might have been in a twist. I got the glass in a pan when I heard the 'pop.' It started hurting down my leg after I stooped over to pick up the lgass (glass). I never had any trouble down my leg before. I went to Methodist Hospital. They referred me to an orthopedic doctor, Dr. Pierce. They operated on me. I feel pretty good other than the leg where the pain went.'

Appellant filed his claim for benefits under Acts 1963, ch. 387, § 1, p. 1025, Burns Ind.Stat., Anno., § 40--1202, commonly known as the Workmen's Compensation Act.

Examinations were made by the appellant's attending physician, Dr. Raymond O. Pierce, Jr., and appellee's examining physician, Dr. Emmett B. Lamb. Both concluded that appellant had suffered a 10% permanent partial impairment of the whole man. Neither doctor, however, attempted to state the causal relationship between the prior existing condition and the 'pop' on March 18, 1968.

On the basis of the agreed statement of facts and the reports of the two doctors, Robert W. McNevin, a member of the Industrial Board, rendered his award denying appellant compensation based on his finding that there was no 'accident' as required by statute.

Thereafter appellant timely sought review of this award before the Full Industrial Board.

On May 15, 1969, the Full Industrial Board entered the following findings and award:

'That on March 18, 1968, the plaintiff was in the employ of the defendant at an average weekly wage of $87.00; that on said date plaintiff did not suffer an accidental injury arising out of and in the course of his employment with the defendant.

'The Full Industrial Board of Indiana now finds for the defendant and against the plaintiff on plaintiff's Form 9 application filed September 26, 1968.

'AWARD

'IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Full Industrial Board of Indiana that plaintiff shall take nothing by his Form 9 Applicaton filed September 26, 1968.'

Appellant contends that the award of the Full Industrial Board is contrary to law, specifically in that the Board misapplied the legal criteria for establishing whether appellant's injuries resulted from an 'accident.'

Appellant directs our attention to the findings of Hearing Member, Robert W. McNevin, wherein he found that, '* * * there was no accident within the rule established in City of Anderson versus Borton (1961), ((1962), 132 Ind.App. 684,) 178 N.E. (2nd) 904, * * *.'

Appellant presents to this court, by his brief, only two points: 1) City of Anderson v. Borton, supra, 132 Ind.App. 684, 178 N.E.2d 904 (1962), is distinguishable from the instant case, and 2) that dictum in City of Anderson is misleading, if not erroneous relative to the existing precedents, and thus should be disapproved. Appellant, therefore, waives any other points or arguments that might be presented.

Appellant, in his brief at page 14, premises his argument on the following stated presumption:

'The single member and apparently the full board based the award herein squarely on City of Anderson v. Borton (1961) ((1962), 132) Ind.App. (684), 178 N.E.2d 904.' (Emphasis supplied.)

We cannot agree that the finding of the Full Board apparently or otherwise rested on City of Anderson, supra. The hearing before the Full Board is a hearing de novo and the Full Board is in no way bound by the findings of the Hearing Member. B. G. Hoadley Quarries, Inc. v. Eads, 129 Ind.App. 670, 676, 160 N.E.2d 202 (1959).

The Full Industrial Board is expressly bound to make the findings required by the statute, which it properly did in this case. Its finding relative to the injury complained of here, necessarily rested on all of the legal criteria established by the case law in Indiana. One of the cases purporting to establish criteria for the determination of an 'accident' within the meaning of the statute was the City of Anderson case. The Full Board, however, was in no way bound by this specific case. There is sufficient evidence of probative value to sustain the findings and conclusion of the Full Industrial Board and there is no demonstrated legal error on the part of the Full Board.

Specifically because, as appellant points out, City of Anderson appears to have introduced a new standard for determining 'accident' within the meaning of the statute, without purporting to amend or discard the old standards, we deem it important to the efficient administration of the Industrial Board to here review the City of Anderson case along with the other pertinent precedents.

In 1917 in Haskell, etc., Car Co. v. Brown, 67 Ind.App. 178, at page 187, 117 N.E. 555, at page 557, this court, citing United Paperboard Co. v. Lewis, 65 Ind.App. 356, 117 N.E. 276 (1917), first specifically defined the word 'accident' relative to its use in the Workmen's Compensation Act, as follows:

'The word 'accident' in the act in question is used in its popular sense, and means 'any unlooked for mishap or untoward event not expected or designed." (Citing authorities.)

This definition was employed exclusively in an unbroken line of cases ¹ until the case of United States Steel Corp. v. Dykes, 238 Ind. 599, 154 N.E.2d 111 (1958), was decided by our Supreme Court. The facts of the Dykes case are relatively straightforward. One John Dykes worked as a 'grinder' in a steel mill of United States Steel Corporation. His job as a 'grinder' was described as heavy physical labor. He left his work area to go to a storeroom. On the way back, he stopped for a drink of water, clutched his chest, fell over and died shortly thereafter of a fatal heart attack. It was determined 1) that he had a pre-existing heart disease, and 2) that he was engaged in his normal and regular work at the time.

Chief Justice Bobbitt, speaking for our Supreme Court in Dykes, distinguished the Dykes case from the situation in United States Steel Corp. v. Douglas, et al., 125 Ind.App. 212, 123 N.E.2d 899 (1955), when he noted at page 610 of 238 Ind., page 117 of 154 N.E.2d that, '* * * in the Douglas Case there was evidence that the decedent's pre-existing heart trouble was aggravated by an unusual exertion * * *.'

Chief Justice Bobbitt further noted, at page 613 of 238 Ind., page 119 of 154 N.E.2d, that, 'The mere showing that he (Dykes) was performing his usual routine everyday task when he suffered a heart attack does not establish a right to workmen's compensation because there was no event or happening beyond the mere employment itself.'

Quite clearly, a new standard was implicitly stated in the Dykes case, which was specifically limited to cases of preexisting condition coupled with unusual exertion.

In 1959 the Dykes case was followed by B. G. Hoadley Quarries, Inc. v. Eads, supra, 129 Ind.App. 670, 160 N.E.2d 202 (1959). In the Hoadley case, the appellee was a 'gang sawer' at a stone quarry. The evidence established that his injuries resulted from lifting the front end of a skid weighing from 375 to 700 pounds. It further established this to be an unusual occurrence. This court, at page 683 of 129 Ind. App., page 208 of 160 N.E.2d, held that,

'* * * said evidence is sufficient to show an 'unlooked for mishap or untoward event not expected or designed.' (Burroughs Adding Machine Co. v. Dehn, (1942), 110 Ind.App. 483, 39 N.E.2d 499), occasioned by an 'extra exertion' while engaged in an 'unusual work load' of his employment. Such evidence, we think, meets the requirements laid down in United States Steel Corporation v. Dykes, (1958), 238 Ind. 599, 154 N.E.2d 111, * * *.'

It is noteworthy to point out, however, that in Dykes, as we earlier established, the decedent suffered from a pre-existing condition, whereas in Hoadley, there was no such pre-existing condition.

In Bundy v. Concrete Ready-Mix Co., 130 Ind.App. 542, 167 N.E.2d 477 (1960), and again in City of Anderson v. Borton, supra, this court applied the doctrine of the Dykes case, and in each case the court considered both criteria--pre-existing condition and unusual exertion.

In Lock-Joint Tube Co. Inc. v. Brown, 135 Ind.App. 386, at pages 394--395, 191 N.E.2d 110, at page 114 (1963), Judge Kelley, speaking for this court, questioned the apparent departure in Dykes from the precedents:

'If the referred to unfortunate language or dicta recited in the Dykes case was intended to deny compensation in all cases of aggravation of hernia, heart disease and other physical ailments in all cases of normal pressures and exertion in normal employment, the court should have so stated with definiteness and without uncertainty.

'If the courts of this state in the future intend to say, as contended for by appellant, that the amount of exertion, whether it be the lifting of 70...