Inland Steel Co. v. Almodovar, 2--874A186

• Decision Date: 31 March 1977
• Docket Number: No. 2--874A186,2--874A186
• Citation: 361 N.E.2d 181,172 Ind.App. 556
• Parties: INLAND STEEL COMPANY, Appellant, v. William ALMODOVAR, Appellee.
• Court: Indiana Appellate Court

Page 181

361 N.E.2d 181

172 Ind.App. 556

INLAND STEEL COMPANY, Appellant, v. William ALMODOVAR, Appellee.

No. 2--874A186.

Court of Appeals of Indiana, Second District.

March 31, 1977.

Travis, Tinkham & Schreiner, Joseph E. Tinkham and James E. Schreiner, Hammond, Baker & Daneils, Karl J. Stipher, Robert J. Bremer, Indianapolis, for appellant.

Thomas Clifford, Merrillville, for appellee.

WHITE, Judge.

The full Industrial Board of Indiana awarded appellee (hereafter 'plaintiff') twenty-six weeks compensation for temporary total disability and an additional 175 weeks for thirty-five percent permanent partial impairment of the whole person for an alleged back injury which appellant (Inland) contends neither the evidence nor the facts found by the Board demonstrate is a 'personal injury . . . by accident arising out of, and in the course of, the employment,' as the Board held. Also, the if an award is justified, the percentage of impairment is less than that awarded. And, finally, that if the award is upheld, Inland should have credit for non-occupational group insurance benefits paid to plaintiff.

I.

As to whether the plaintiff sustained personal injury by accident arising out of, and in the course of, his employment the Board initially found:

'That on the 30th day of March, 1972, plaintiff was in the employ of the defendant at an average weekly wage in excess of $120.00; that on said date plaintiff sustained an accidental injury arising out of and in the course of his employment when using a compressed-air hand tool and jerking, tugging and pulling on said air hose he felt a pain in his lower back; that defendant had knowledge of said accidental injury but did not furnish the statutory medical attention and supplies;

'That as a result of said accidental injury plaintiff was temporarily totally disabled for a period in excess of twenty-six (26) weeks from and after the 30th day of March, 1972.

'It is further found that plaintiff's condition has reached a permanent and quiescent state and plaintiff now has a thirty-five per cent (35%) permanent partial impairment to the man as a whole as a result thereof;'

In response to our request for greater specificity the Board found that:

'(O)n the 30th day of March, 1972, plaintiff was an employee of defendant, working as a wrapper in No. 3 cold strip, at an average weekly wage in excess of $120.00; that on said date while working within the scope of his duties for the defendant plaintiff experienced an identifiable event which consisted of pulling an air hose which was 'caught between the conveyor' at which time his back suddenly gave way--in his lower back and through his legs; that such identifiable event is found to be an accident arising out of and in the course of his employment by defendant, which said accident is found to have resulted in injuries to plaintiff's lower back.'

Inland contends these findings are insufficient in that the Board has failed to make 'any specific finding of fact causally relating (plaintiff's) first awareness of his back ailment with his work for Inland (e.g., that (plaintiff) was putting forth an unusual exertion occasioned by an increased work load.' ¹ Inland also claims there is no evidence to support such a finding had it been made. It contends that the absence of such evidence means that plaintiff has failed to prove that his injury arose out of his employment. Inland's authority is United States Steel v. Dykes (1958), 238 Ind. 599, 613, 154 N.E.2d 111, 119, which said:

'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.'

Standing alone, that statement lends support to Inland's position. But after quoting Small WORKMEN'S COMPENSATION LAW OF INDIANA, § 6.20, p. 151, which recited fact situations in which compensation had been allowed, Dykes also notes:

'In each of the above instances the fatal heart attack was preceded by some type of untoward or unexpected incident, or there was evidence of the aggravation of a previously deteriorated heart or blood vessel. ² No such incident is shown by the evidence in the record here.

By the use of the disjunctive 'or', it is clear that Dykes is not saying that a fatal heart attack or any other injury must always be preceded by 'some type of untoward or unexpected incident' (such as an unusual exertion occasioned by an increased work load) in order to be compensable. It expressly acknowledges that there is an alternative: 'evidence of the aggravation' of a preexisting condition. But to emphasize that the alternative was not proved in Dykes, the opinion continued:

'Under the evidence in this case decedent's fatal heart attack might have happened while he was working, driving his car, sitting or even sleeping. It happened while he was working at his usual occupation; and in such event it could be said that his heart failed because it could not handle the load then demanded of it. In our opinion it was not the intention of the Legislature that such happening be considered a 'death by accident arising out of and in the course of the employment.' Acts 1929, ch. 172, as amended, being § 40--1202, Burns' 1952 Replacement.

'Neither is it what the courts had in mind when they said that if an accident aggravates a pre-existing condition the resulting harm is compensable. Heflin v. Red Front Cash & Carry Stores, Inc., supra 1948, 225 Ind. 517, 521, 522, 75 N.E.2d 662.' (238 Ind. at 611--612, 154 N.E.2d at 118.)

The facts at bar are more analoguous to those in Heflin than to those in Dykes. In Heflin the plaintiff-employee was a chain food store manager who had had a hernia all his life. His undisputed testimony was that he was helping unload potatoes from a truck through a store window when

'about the fourth (bag) I felt this hernia give down completely. * * * I felt a sharp pain and it protruded to about three times its normal size.

'I had unloaded potatoes before for about 12 years. I had unloaded them in the same way. Nothing unusual happened, such as the bag slipping or falling. . . .' (225 Ind. at 519--520, 75 N.E.2d at 663.)

The Heflin opinion does not comment on the fact that the injury occurred while the employee was doing what he had done for about twelve years and while he was doing it in the same way and without any unusual happening other than the pain and the protrusion. What Heflin does say about an accidentally aggravated preexisting condition (apparently with approval of the Dykes court) is this:

'Indiana long ago adopted the majority rule, that where an employee afflicted with disease receives a personal injury under such circumstances that he might have obtained compensation under a Workmen's Compensation Act on account of the injury had there been no disease involved, but the disease is materially aggravated or accelerated by the injury, resulting in disability or death earlier than would otherwise have occurred, and the disability or death does not result from the disease alone progressing naturally as it would have done under ordinary conditions, but the injury, aggravating and accelerating its progress, materially contributes to hasten its culmination in disability or death, there may be an award under the Workmen's Compensation Act. In re Bowers (1917), 65 Ind.App. 128, 133, 134, 116 N.E. 842, and authorities there cited; Indian Creek Coal, etc., Co. v. Calvert (1918), 68 Ind.App. 474, 119 N.E. 519, 120 N.E. 709; Puritan Bed Spring Co. v. Wolfe (1918), 68 Ind.App. 330, 120 N.E. 417; Krenz v. Ferguson Coal Company (1926), 85 Ind.App. 347, 154 N.E. 35; State v. Gageby (1933), 95 Ind.App. 681, 184 N.E. 190; The Studebaker Corp. v. Jones (1937), 104 Ind.App. 270, 10 N.E.2d 747.

'In the case of Haskell, etc., Car Co. v. Brown (1918), 67 Ind.App. 178, 117 N.E. 555 this court defined the word 'accident' as used in our Workmen's Compensation Act, as 'any unlooked for mishap or untoward event not expected or designed.'

'In Indian Creek Coal, etc., Co. v. Calvert, supra, this court, after an exhaustive review of English and American cases, approved the Haskell definition and further held the term 'personal injury,' as used in the Workmen's Compensation Act, had reference not to some break in some part of the body or some wound thereon, but rather to the consequences or disability that results therefrom. To the same effect--Puritan Bed Spring Co. v. Wolfe, supra; Terre Haute, etc., Mfg. Co. v. Wehrle (1921), 76 Ind.App. 656, 132 N.E. 698; The Studebaker Corp. v. Jones, supra.' (225 Ind. 521--522, 75 N.E.2d 664.)

In the present case we have findings by the Board to the effect that plaintiff's back suddenly gave way while he was jerking, tugging, and pulling on an air hose that was 'caught between the conveyor', and that the incident was an injury by accident arising out of and in the course of his employment. This amounts to a finding that the jerking, tugging and pulling injured plaintiff's back. Inland makes no argument to the contrary, contending only that because this jerking, tugging and pulling was not an unusual exertion occasioned by an increased work load, the injury (which it refers to as his 'first awareness of his back ailment') is not causally related to his work for Inland. The medical evidence of plaintiff's preexisting back pathology is sufficient to sustain the implied finding that plaintiff's injury is an aggravation of that preexisting condition. In other words, this case, unlike Dykes, is an example of 'what the courts had in mind when they said that if an accident aggravates a preexisting condition the resulting harm is compensable.' (Dykes, supra, 238 Ind. at 612, 154 N.E.2d at 118.)

At bar, the dissent takes a different tack, opinion that there was no 'accident', apparently because plaintiff 'was performing a normal task of his every day employment routine at Inland' when he...