City of Anderson v. Borton, 19557

• Decision Date: 28 December 1961
• Docket Number: No. 1,No. 19557,19557,1
• Citation: 178 N.E.2d 904,132 Ind.App. 684
• Parties: CITY OF ANDERSON, Appellant, v. Wayland Eugene BORTON, Appellee
• Court: Indiana Appellate Court

Page 904

178 N.E.2d 904

132 Ind.App. 684

CITY OF ANDERSON, Appellant, v. Wayland Eugene BORTON, Appellee.

No. 19557.

Appellate Court of Indiana, Division No. 1.

Dec. 28, 1961.

Rehearing Denied Feb. 2, 1962.

Smith & Yarling, Robert S. Smith, Richard M. Hennessy, David A. Steckbeck, Indianapolis, for appellant.

Robert R. Robbins, Anderson, for appellee.

AX, Judge.

Appellee Borton while employed by appellant City of Anderson as a light and water meter reader claimed to have received personal injuries by reason of an accident arising out of and in the course of his employment by the appellant, which accident appellee claimed caused him to suffer an increase in his permanent partial impairment over a previous impairment from a prior industrial accident for which he had previously received compensation and from a second previous, but non-compensable, accident which had increased his impairment prior to the alleged accident complained of. After properly filing his claim on Form 9, upon a hearing before a single member of the Industrial Board, he received an award of compensation which award was subsequently sustained on appeal by the Full Industrial Board.

Appellant urges that the award is contrary to law.

A review of the evidence favorable to appellee and which is not disputed shows that on February 7, 1955, while working for Container Corporation of America, appellee Borton suffered an injury to his back for which he received a few weeks compensation for temporary total disability. Subsequently he continued to have pains in his back, and in September, 1956, he was operated on for removal of a bulging disc in the lumbosacral level, which disc was found to be diseased and was removed by an operation described as a laminectomy. This resulted in a 10% permanent partial impairment to the man as a whole for which he received benefits under provisions of the Indiana Workmen's Compensation Act, Burns' Ann.St. § 40-1201 et seq., by an award of the Industrial Board against the Container Corporation of America on February 9, 1957.

Prior to receiving this award, on or about December 12, 1956, Borton went to work for appellant City. On November 11, 1957, while working as a meter reader for the City, Borton's heel slipped off of a step and caused his back to 'act up,' which resulted in two weeks bed rest. Borton filed no claim for compensation benefits as a result of that injury. According to Borton's own testimony, at that time, Dr. Eicher who had performed the first operation on his back, established his permanent partial impairment at 15% by giving this information to Borton's attorney.

On the 25th day of August, 1959, while engaged in reading light and water meters, Borton leaned over to open a trap door in the back room of a house to go to a basement to read a meter, at which time Borton suffered a sharp pain down through his lower back which subsequently caused him to again have another operation performed on his back.

On December 31, 1959, this operation was performed on Borton by both Dr. Reed and Dr. Eicher, who had performed the first operation. At this operation it was found that there was a protrusion of another disc and that a nerve root under the disc was flattened and swollen. The disc was removed and then the protrusion was removed. The nerve was freed and a spinal fusion was performed on both sides of the spine.

The main question to be determined by this appeal is whether or not the evidence in the record is sufficient to sustain the findings of the Board, i. e., is the evidence competent to show that appellee Borton was impaired as a result of an accident arising out of and in the course of his employment or that there was a causal connection between his back injury or aggravation thereof and his employment?

A review of the testimony of appellee Borton on direct examination, which is not disputed, concerning the alleged accident, in pertinent parts, follows:

'Q. Will you relate to the court the situation and incident that happened August 25, 1959, wherein you sustained certain injuries? A. I was reading meters on my job at 1228 Home Avenue. I went in to raise the trap door to go in the basement to read the water meter and as I reached over to raise the trap door I had a sharp pain down through my lower back and I couldn't straighten up at that time. I stood around a few minutes and finally made it to where I could straighten up and I read the meter and finished my book. It took half or three-quarters to finish the book and then I went in the office and told the boss, I think I said, 'I messed up my back.' I didn't think too much about it at that time. I got my book for the next day and went on home. The next morning I couldn't hardly get out of bed and when I couldn't straighten up at all I went to the office and they gave me a pass to the Emergency Clinic.

'Q. Tell the Hearing Officer, you talked about 'they,' the person you talked to at the office. A. I went to my foreman, Ed Gurt, and told him that my back was bothering me and that I would like a pass to the Emergency Clinic.

'Q. Is that in Anderson? A. Yes, and the lady that usually took care of those things was on her vacation and one of the fellows filled out the form and gave me the pass, which I took and went to the Clinic. Dr. Austin examined me and gave me some treatment and some medical pills and told me to stay in bed, which I did, but it did not improve so I continued with the treatments. I took a series of five treatments at the Emergency Clinic. This condition continued and I seen Dr. Reed and he examined me and I had another series of treatments. It went on like that for a period of weeks and did not improve and I had pain all down my left hip, well, the left leg and lower part of my back until he finally put me in the hospital and decided surgery was necessary to remedy the condition.

'Q. Regarding the incident on Home Avenue, about what time was it that this happened? A. Approximately 11:45.

'Q. What was the time which you finished reading the meters that day, approximately? A. 12:30 or 1:00 o'clock; somewhere in there.

'Q. What time did you report back to the office, the light plant office? A. As soon as I finished the book.

'Q. How much time elapsed? A. Not over ten minutes.

'Q. In your job there with the City what was the procedure so far as reporting to work of a morning and stopping your duties of a morning? What time would you report of a morning? A. There was no set time at that time. We was working on a monthly basis, monthly salary. We had so many books to read within a time period and we done our work.

'Q. What time did you ordinarily report to the office of a morning? A. About eight o'clock.

'Q. What time would you finish your duties during the day? A. It would run from maybe 3:00 or 3:30; never later than 3:30.

'Q. Your duties required you to read what type of meters? A. Light and water meters.

'Q. In your occupation as meter reader you were required to go into basements and also upstairs. Is that correct? A. That's right.

'Q. How long had you been in this occupation prior to your injury? A. About 3 1/2 years.

'Q. And this was on your regularly established route that this accident happened? A. That's right.

'Q. And you hadn't stopped or left your employment for any reason immediately prior to this incident? A. That's right.'

On cross-examination, Borton testified as follows:

'Q. Now, coming back to August 25, 1959, you still were in the employ of the City of Anderson reading meters? A. Right.

'Q. This incident you say occurred at 1228 Home Avenue? A. Yes.

'Q. Do you know the name of the people? Was it Everett Miller? A. That's right.

'Q. Was anyone home that day? A. I didn't see anybody.

'Q. The back door was open? A. I knock on the back door and hollo 'meter man.' There was an enclosed back porch and the basement entrance was in that.

'Q. You had read that meter before? A. No, I had never been able to get in that house. It was on my regular route, but in quite a few places people aren't home. It so happened the door was open this time. It was the first time I was ever in there.

'Q. You continued reading meters the rest of the day? A. I had twenty or twenty-five more calls.

'Q. Did you finish the day? A. Yes.

'Q. And then you reported to Mr. Gurt? A. Yes.

'Q. And he was your superintendent? A. My foreman, yes.

'Q. And told him you were having trouble with your back? A. I told him I messed up my back.

'Q. They referred you to the Emergency Clinic? A. The next morning, yes.

'Q. Dr. Austin saw you first? A. Yes.'

Appellant contends that the appellee did not suffer an accident arising out of and in the course of his employment by the appellant herein on August 25, 1959, and therefore the Industrial Board was in error in finding that he did so suffer such an accident arising out of and in the course of his employment and awarding him any benefits whatever under the Indiana Workmen's Compensation Act. The only testimony in the record describing the occurrence of August 25, 1959, is the testimony of the appellee as follows:

'I went in to raise the trap door to go in the basement to read the water meter and as I reached over to raise the trap door I had a sharp pain down through my lower back and I couldn't straighten up at that time.'

By the appellee's own testimony he had not yet touched the trap door, nor did he describe a fall, a blow, a twist, a lift, a strain, any exertion or any untoward or unusual incident of any...