Ellis v. Hubbell Metals, Inc.

• Decision Date: 23 August 1977
• Docket Number: No. 2-377A107,2-377A107
• Citation: 366 N.E.2d 207,174 Ind.App. 86
• Parties: Charles M. ELLIS, Jr., Appellant-Plaintiff, v. HUBBELL METALS, INC., Appellee-Defendant.
• Court: Indiana Appellate Court

Page 207

366 N.E.2d 207

174 Ind.App. 86

Charles M. ELLIS, Jr., Appellant-Plaintiff, v. HUBBELL METALS, INC., Appellee-Defendant.

No. 2-377A107.

Court of Appeals of Indiana, First District.

Aug. 23, 1977.

Merle B. Rose and John M. Cronin, Indianapolis, for appellant-plaintiff

Theodore L. Locke, Jr., Michael A. Bergin, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellee-defendant.

LOWDERMILK, Judge.

This case was transferred to this office from the Second District in order to help eliminate the disparity in caseloads among the Districts.

STATEMENT OF THE CASE

Plaintiff-appellant Charles M. Ellis, Jr. appeals from a final decision of the Full Industrial Board of Indiana which denied his application for an award under the Workmen's Compensation Act.

FACTS

The facts most favorable to the decision of the Full Industrial Board are that on February 15, 1974 Ellis, while performing his normal duties as a sheet metal slitter at Hubbell Metal Works, bent over to pick up a roll of sheet metal. Ellis testified that shortly after he began to lift the metal, he felt a sharp pain in his lower back near his tailbone. He could not straighten up, and he complained of intense pain in his lower back.

With his foreman's permission Ellis left work to see his chiropractor. Ellis had been experiencing sciatica and pains in his lower back since 1970 or 1971. On February 15, 1974, the day of the incident at work, after commenting that the problem in Ellis' back did not appear to be the same as it was prior to that date, the chiropractor made an adjustment in Ellis' back. The chiropractor Ellis spent the next two days in bed. At approximately 1:30 a. m. on February 18, 1974 Ellis had just gotten out of bed to go to the bathroom when he suddenly fell over beside the bed, and was unable to move his legs. An intense pain radiated down his spine to his tailbone. Upon his doctor's recommendation Ellis was admitted to a hospital that night and transferred to another hospital the next day.

told Ellis that it would not be necessary for him to return for any further adjustments unless he had more problems similar to that one.

Ellis was out of work until December, 1974. In the intervening period he consulted several doctors, spent several weeks in the hospital, underwent several diagnostic tests and a remedial laminectomy. No fractures or herniated discs were found. However, the doctors who submitted their respective opinions to the Board concerning the matter estimated that Ellis had a 10-25% Permanent partial impairment of the whole body, as a result of his back condition. Prior to the incident of February 15, 1974 Ellis had received several awards and commendations because he had set several production records on his machine. Afterwards, when he began working again, he was not able to work with the same speed and intensity.

The Board decided that Ellis was not entitled to an award under the Workmen's Compensation Act because it found that the injury to his back of which Ellis complained did not arise out of the course of his employment. The Board found that the back problems which Ellis had experienced since February 15, 1974 were caused by a recurrence of a preexistent condition which was unrelated to his employment at Hubbell Metal Works.

ISSUES

The issues presented to this court for review are:

1. Does the finding of the Board contradict itself by finding that Ellis injured his back while performing his job, and yet also finding that Ellis incurred temporary total disability and permanent partial impairment due to causes unrelated to his employment?

2. Was Ellis injured by an accident which arose out of and occurred in the course of his employment?

3. Is the finding contrary to law and unsupported by the evidence that Ellis should not receive an award.

4. Did the Board err at law by denying Ellis temporary total disability?

ISSUE ONE

Ellis contends that the findings of the Board are inconsistent in that, he alleges, it finds that he injured his back while performing his employment and yet, that his injuries were unrelated to his employment. Ellis misreads the findings of the Full Industrial Board. The pertinent parts of the Board's findings are as follows:

". . . It is further found that on February 15, 1974, plaintiff testified that while performing his job in the normal manner, he bent over to pick up a rolled sheet of steel and injured his back.

It is further found that the onset of pain on February 15, 1974, was due to a reoccurrence of plaintiff's preexistent condition.

It is further found that any temporary total disability and medical expense incurred by plaintiff since February 15, 1974, were due to causes unrelated to his employment with the defendant." (Our emphasis)

A careful reading of the Board's findings, supra, indicates that the Board did not find that Ellis injured his back while trying to pick up a roll of steel, but that he testified that such occurred. There are no inconsistencies in the Board's findings.

ISSUES TWO, THREE AND FOUR

Ellis contends that his injury was accidental and that it arose out of and was incurred in the course of his employment. ¹ He also contends that the decision of the Industrial Board was contrary to law and was not supported by the evidence.

In reviewing the record on an appeal from a decision of the Industrial Board we cannot weigh the evidence or determine the credibility of witnesses, but can only consider that evidence which supports the decision of the Board and the reasonable inferences which can be drawn therefrom. Since Ellis appeals from a negative judgment, he must show that the Board's decision was contrary to law by showing that the evidence was without conflict, that it could lead to but one conclusion, and that the Industrial Board reached the opposite conclusion. ²

The Industrial Board did not address itself to the question of whether Ellis' injury resulted from an accident. ³ The Board found that Ellis' back troubles resulted from a recurrence of a preexisting condition and were unrelated to his employment. That finding, alone, precluded his recovery of an award.

In finding that Ellis' injury did not arise out of his employment the Board followed certain dicta as set forth in U. S. Steel Corp. v. Dykes (1958), 238 Ind. 599, 154 N.E.2d 111 where it was held that a worker with a diseased heart, who died of a heart attack during a break from his regular work duties, was not entitled to compensation. The court in Dykes, supra, at 613, 154 N.E.2d at 118 stated:

"It seems to us that the only conclusion which reasonable men could reach from the foregoing evidence, with all the inferences reasonably deducible therefrom, is that the decedent herein was afflicted with a diseased heart and coronary system, which had deteriorated to the point where it could no longer stand the load imposed upon it by his regular and usual work, and that his death resulted solely from coronary arteriosclerosis progressing gradually to the point where it caused his death.

The mere showing that he 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." (Our emphasis)

The Board in the case at bar concluded that Ellis had a previously existing back condition "which had deteriorated to the point where it could no longer stand the load imposed upon it by his regular and usual work." He had a weakness which manifested itself under normal stress.

There are cases which have awarded compensation for injuries which were incurred when the worker performed a task requiring unusual exertion, ⁴ even where preexisting injury or disease existed and was aggravated by the accident. ⁵ There have been cases which have allowed compensation for injuries received by a worker while performing his regular work in the absence of preexisting disease or injury. ⁶ But, where preexisting injury or disease exists the courts have been in conflict with each other with regard to awarding compensation for death or injuries that occurred during the performance of the worker's regular duties. ⁷

We believe that the better rule with regard to recovery by a worker for the accidental aggravation of a preexisting injury while performing his regular work duties is found in Lock-Joint Tube Company v. Brown, supra, which reads on page 114 of 191 N.E.2d 114 as follows:

". . . In the Dykes case the employee suffered a natural heart attack without any exertion while returning from the water cooler. We are not inclined that it can be said that the Supreme Court, in the light of the facts of the Dykes case, intended to overrule the well developed and long established rule of compensable injury and accident which prevails in the case of an aggravation of an existing disease. ⁸ 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 pounds in the instant case or the lifting of the automobile hood in the Studebaker v. Jones case, supra, is the controlling factor, then our courts will be burdened with the arbitrary, illogical and absurd duty of drawing gossamer lines of distinction, measurement and degree so that in one case the lifting of 40 pounds may be termed an extreme exertion while in another case the lifting of 100 pounds may be insufficient to constitute extreme exertion.

"While the aforesaid dicta of the said Dykes case would seem to apply such a standard, the facts of the case and the fundamental doctrine announced in the decision...