Eastham v. Whirlpool Corp.

• Decision Date: 08 June 1988
• Docket Number: No. 93A02-8709-EX-370,93A02-8709-EX-370
• Citation: 524 N.E.2d 23
• Parties: Kenneth EASTHAM, Appellant (Plaintiff Below), v. WHIRLPOOL CORPORATION, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 23

524 N.E.2d 23

Kenneth EASTHAM, Appellant (Plaintiff Below), v. WHIRLPOOL CORPORATION, Appellee (Defendant Below).

No. 93A02-8709-EX-370.

Court of Appeals of Indiana Third District.

June 8, 1988.

Robert L. Simpkins, Evansville, for appellant.

George A. Porch, Evansville, for appellee.

STATON, Judge.

Kenneth Eastham appeals a negative award by the Industrial Board of Indiana (Board). He raises three issues, which we restate as:

1. Whether he was denied due process of law because the Board did not hold a trial de novo after a hearing before a single member.

2. Whether the Board's finding that he did not suffer an injury by accident is contrary to the evidence and the law.

3. Whether the Board's finding that his mental condition was not causally related to any incident occurring at work is contrary to the evidence and the law.

Affirmed.

Eastham filed a claim for compensation with the Board on February 7, 1983, alleging that on June 14, 1982, he suffered an injury to his back and neck as a result of an accident arising out of and in the course of his employment with Whirlpool. A single hearing member of the Board heard his claim and concluded that Eastham had suffered a compensable injury and that his present mental condition was precipitated by the injury. Accordingly, Eastham was awarded compensation benefits.

Whirlpool filed an application for review by the full Board. Upon review of the evidence from the initial hearing, the Board entered the following findings:

7. Plaintiff developed muscle soreness in his upper body, particularly on the right side, as a result of performing the hot melt gun job on June 14, 1982 because it was his first day to perform that job.

8. Plaintiff reported to Defendant on June 15, 1982 that he would not report for work due to soreness in his arms and back.

9. Plaintiff also contacted Defendant on June 16, reporting that his forearm, back and shoulder still had pain and that his shoulder and back muscles were "pulled out".

10. Plaintiff contacted Defendant on June 17 and told the company nurse that he "tore back up, arm and shoulder and upper and low back up [sic]" and asked to see the company doctor. Plaintiff also told the nurse that the hot melt job was what "tore him up."

11. Plaintiff called in to Defendant on June 18, continuing to complain of pain in his right shoulder and stating that he "would not go back on hot melt gun."

12. On June 21, the Monday following Plaintiff's first day of work on the hot melt gun and following Plaintiff's reported absence on June 18, 1982, Plaintiff saw the company doctor, Dr. Fitzsimmons.

13. Dr. Fitzsimmons reported that Plaintiff attributed his problem to the hot melt gun and that he couldn't stand up over one hour at a time. Plaintiff hurt everywhere Dr. Fitzsimmons touched him.

14. Dr. Fitzsimmons diagnosed Plaintiff's condition as sore muscles and ordered a lumbar spine X-ray which was reported to be normal.

15. Plaintiff later saw two orthopaedic specialists and was treated conservatively.

16. While hospitalized for conservative treatment, Plaintiff began exhibiting major psychiatric symptoms and was evaluated by a clinical psychologist.

17. Plaintiff was found to have a low average I.Q. and to be experiencing severe anxiety and depression.

18. Plaintiff's condition has been diagnosed as peranoid [sic] schizophrenia.

19. Plaintiff may have been predisposed to psychiatric problems but was functioning in a work environment prior to June 14, 1982.

20. Plaintiff's emotional disorder greatly aggravated his physical symptoms.

21. Plaintiff's psychiatric condition renders Plaintiff permanently totally disabled. However, there is insufficient evidence to establish that Plaintiff suffered an accident within the meaning of the Workmen's Compensation Act on June 14, 1982 or that his condition is causally related to any incident occurring at work on June 14, 1982.

22. Plaintiff did not exhibit any symptoms of his psychiatric condition for more than one (1) year subsequent to the date of the alleged accident.

23. The muscle soreness experienced by Plaintiff after performing one shift of new duties was not unexpected and therefore does not constitute an injury within the meaning of the Act.

Said Full Industrial Board of Indiana now finds for Defendant and against the Plaintiff on Plaintiff's Form 9 Application for the Adjustment of Claim for Compensation, filed on the 7th day of February, 1983.

(R. 12).

I. Due Process

Eastham first raises the issue whether he was denied due process of law because the Board did not hold a trial de novo. The applicable statutes governing disputes and reviews are I.C. 22-3-4-6 and I.C. 22-3-4-7, which provide:

Sec. 6. The board by any or all of its members shall hear the parties at issue, their representatives and witnesses, and shall determine the dispute in a summary manner. The award shall be filed with the record of proceedings, and a copy thereof shall immediately be sent to each of the parties in dispute.

Sec. 7. If an application for review is made to the board within twenty (20) days from the date of the award, made by less than all the members, the full board, if the first hearing was not held before the full board, shall review the evidence, or, if deemed advisable, hear the parties at issue, their representatives and witnesses as soon as practicable and shall make an award and file the same with the finding of the facts on which it is based and send a copy thereof to each of the parties in dispute, in like manner as specified in the last foregoing section.

Eastham sets out his argument as follows:

1. Eastham has a constitutional right to due process in his worker's compensation case.

2. The Full Industrial Board has a right to delegate the constitutional requirement of a fair hearing to a single hearing officer, however, once it delegates this responsibility, the review powers of the Full Industrial Board are thereby limited. It cannot reverse the decision of the single hearing member unless it preserves the worker's constitutional rights.

3. In order to reverse a factual determination made by a single hearing member, the Full Industrial Board has two options. First, it can grant the employee a trial de novo and hear the evidence. Secondly, it can issue a statement that it has reviewed the entire record and read all of the evidence and depositions and reaches a different factual conclusion from that of the single hearing member. If the Full Industrial Board fails to do one of these two things, it cannot summarily reverse a factual determination made by the single hearing member. To do otherwise would violate a worker's constitutional due process rights.

(Reply Brief of Appellant, 7-8).

Eastham cites no authority for his proposition that the Board's review power is limited once the responsibility to hear the evidence is delegated to a single hearing member. This is not surprising since case law provides that review by the full Board is a proceeding de novo (not, as Eastham claims, a trial de novo ). Hayes v. Joseph E. Seagram & Co. (1944), 222 Ind. 130, 52 N.E.2d 356, 357; Burton v. Rock Road Const. Co. (1968), 142 Ind.App. 458, 235 N.E.2d 210, 212, (Full Board Hearing is regarded as a hearing de novo and Board can make its own findings and determinations); B.G. Hoadley Quarries, Inc. v. Eads (1959), 129 Ind.App. 670, 160 N.E.2d 202, 205 (Industrial Board hears case de novo, and facts upon such review by full board are determined upon evidence introduced in original hearing).

We find no merit in Eastham's argument that this procedure violated his due process rights.

II. Injury by Accident

Eastham raises the issue whether the Board's finding that he did not suffer an injury by accident is contrary to the evidence and the law. Our standard of review on appeal is limited. We are bound by the Board's factual determinations and may not disturb them unless the evidence is undisputed and leads inescapably to a contrary result. In order to reach a contrary conclusion, we may not disregard any reasonable inferences drawn by the Board from the facts that the evidence tends to prove. Sears Roebuck & Co. v. Murphy (1987), Ind.App., 508 N.E.2d 825, 829, reh. denied.

Further, we are required to disregard all evidence which is unfavorable to the findings of the Board and consider only those facts and those reasonable inferences which support such findings. Id.

Accordingly, the record reveals the following facts. ¹ Eastham worked at Whirlpool from January 19, 1966 until June 14, 1982. On that date, he was moved from the Morgan Avenue plant to the highway plant where he began new duties on the hot seal gun job. The job consisted of using an air pressure gun that was attached to the ceiling and connected to a hose. The use of the gun did not entail heavy lifting since the gun's weight was supported from the ceiling. The workers stood along the assembly line on which empty refrigerator cabinet shells moved and sprayed the hot seal on the seams inside the cabinets. Three workers operated the hot seal guns for each cabinet while a fourth served as a backup to cover any spots the three sprayers might miss.

Eastham worked the entire day of June 14, 1982, on the job. He didn't complain about the job and reported no accident or injury. No one observed any incident where Eastham was hurt or fell and no one said anything about any unusual occurrence. He neither asked for medical treatment nor sought it.

Eastham did not appear for work at Whirlpool after June 14, 1982. He called in on the early mornings of June 15, 16, 17 and 18 and stated that he would not be at Whirlpool to work that day. Finally, On June 21, 1982, he called in and stated that Leon Hunt (a union steward) told him he should see Whirlpool's physician or Eastham might have problems with group benefits or a sickness leave. Eastham asked to see the Whirlpool physician on June 21, 1982, and he was seen by Dr. Fitzsimmons that same...