George v. Interstate Metal Products, 18655

• Decision Date: 06 May 1955
• Docket Number: No. 18655,18655
• Citation: 126 N.E.2d 258,125 Ind.App. 406
• Parties: Elizabeth M. GEORGE, Appellant, v. INTERSTATE METAL PRODUCTS, Inc., Appellee.
• Court: Indiana Appellate Court

Page 258

126 N.E.2d 258

125 Ind.App. 406

Elizabeth M. GEORGE, Appellant, v. INTERSTATE METAL PRODUCTS, Inc., Appellee.

No. 18655.

Appellate Court of Indiana, In Banc.

May 6, 1955.

Robert J. Salek, LaPorte, John B. Dilworth, LaPorte, of counsel, for appellant.

James Donadio, Indianapolis, Ross, McCord, Ice & Miller, Indianapolis, of counsel, for appellee.

KENDALL, Judge.

Appellant filed application before the Industrial Board alleging that on the third of October, 1951 (corrected date) she received personal injuries by reason of an accident arising out of and in the course of her employment with appellee company. Hearing was had before single member of the Board, resulting in an award favoring appellant. Upon appeal, the Full Board unanimously reversed the award of single member, from which award appellant appeals to this court.

The error relied upon is that the award of the Full Industrial Board is contrary to law. The award is:

'The Full Industrial Board of Indiana having heard the arguments of counsel and having reviewed all the evidence in said cause and being duly advised in the premises therein, now finds: That plaintiff was in the employ of the defendant on or about the 3rd day of October, 1951, at an average weekly wage in excess of $45.

'It is further found that at the present time plaintiff is afflicted with a back condition, which said affliction is due to causes wholly unrelated to her employment with the defendant herein. * * *'

When appellant filed her application, it was her theory that her disability arose from a single act on October 3, 1951. It is apparent that during the progress of the hearing, the original theory was abandoned and a new one adopted, viz.: that appellant's disability arose over a period of time while employed by the appellee company and now contends on appeal that it is not necessary that there be a specific accident but if an injury occurs over a period of duration of employment that in itself is sufficient to give rise to an accident within the meaning of the Indiana Workmen's Compensation Act. In order that there be a personal injury by accident, it is paramount that there be some untoward or unexpected event. It is contended by the appellant that there is no finding by the Full Board as to the injury and loss of time claimed by the appellant in her original application. When the Industrial Board, by its order of award denies compensation, it is not necessary for the Board to specifically find on each element presented to sustain the award. This appeal is from an award denying compensation. Here the Board found that appellant was in the employ of appellee on October 3, 1951, at $45 per week; that at the present time, she was afflicted with a back injury, which affliction was due to causes wholly unrelated to her employment. This is a sufficient finding upon which to base an order denying compensation. Sauer v. Tower Mfg. Co., 1932, 94 Ind.App. 81, 179 N.E. 801. Notwithstanding, failure to find a fact is equivalent to a finding against the party having the burden of proof.

In the case of Myers v. Oak Hill Coal Co., 1937, 103 Ind.App. 158, 5 N.E.2d 653, 655, the Board made an award similar to the one in this case which was challenged on similar grounds. In deciding, the court said as follows:

'In answering appellant's contention we must remember that the burden of establishing each fact necessary to a legal award of compensation rests on the applicant. Union Sanitary Mfg. Co. v. Davis (1917), 64 Ind.App. 227, 115 N.E. 676.' See also Goodwin v. Calumet Supply Company, 1939, 107 Ind.App. 487, 23 N.E.2d 602.

We cannot adopt appellant's theory that the mere fact she worked for appellee during the period of time in which her disability arose is sufficient to sustain the burden of proof as to the occurrence of the accident within the meaning of the Act.

To adopt that theory would be to disregard the very purpose of the Workmen's Compensation Act. Appellant cites the case of Indian Creek Coal, etc., Co. v. Calvert, 1918, 68 Ind.App. 474, 119 N.E. 519, 120 N.E. 709, which contains a discussion as to what constitutes an accident. We do not interpret that case as in any sense abandoning the well-known rule that in order to show an accident there must be some untoward or unexpected event.

One of appellant's doctors testified that she gave him a history that on October 4, 1951, she felt something give away while lifting sheets of heavy steel. There is evidence that this incident was accompanied by pain in the area injured which persisted to the date of examination. Unquestionably, if this was the only uncontradicted evidence, the appellant would have shown a personal injury by accident. Such is not the fact. In relating the history of the case to her physician, she denied she had any such prior difficulty prior to October 1, 1951.

Doctor Heck, an Ortheopedic Surgeon, witness for appellant, testified as follows:

'Q. When you saw her Doctor, on the 7th of January, 1953 and was taking the history from her, did you interrogate her wiether or not she had any prior difficulty or trouble with her low back or lower extremities? A. Yes sir.

'Q. What answer did she give? A. She denied any prior difficulty to the date of this alleged accident.'

The doctor further testified that it would have been significant for him to have known of any prior difficulties with appellant's low back or lower extremities. In this connection, the doctor answered as follows:

'Q. Do you have any judgment as to how long what you saw on Plaintiff's Exhibit 'A', with respect to the transverse type of lateral joint in the lumbar sacral area had existed? A. For a long time.

'Q. In other words that is a congenital defect? A. I think congenital development.

'Q. It was a condition there long prior to October 4, 1951? A. Yes sir.

* * *

* * *

'Q. And the only reason that you ascribe her situation or condition to the October incident...