Lock-Joint Tube Co. v. Brown
Decision Date | 20 June 1963 |
Docket Number | No. 19672,No. 2,LOCK-JOINT,19672,2 |
Citation | 135 Ind.App. 386,191 N.E.2d 110 |
Parties | TUBE COMPANY, Inc., Appellant, v. Glen BROWN, Appellee |
Court | Indiana Appellate Court |
Arthur A. May of Crumpacker, May, Beamer, Levy & Searer, South Bend, for appellant.
David Matthews, South Bend, for appellee.
Pursuant to a due hearing and review on appellee's form 9 application, the Full Industrial Board found that appellee, on or about September 29, 1958, while in the employ of appellant, sustained personal injury as the result of an accident arising out of and in the course of his employment; that
'said injury consisted of an aggravation of a pre-existing osteo-arthritic condition of the cervical spine;
'* * *.
'that plaintiff's condition resulting from said accidental injury has now reached a permanent and quiescent state and has resulted in a permanent partial impairment of 20% of the man as a whole.'
An award of compensation to appellee followed the finding.
On assignment that said award is contrary to law, appellant prays a review and reversal of the award.
The principal contention of the appellant herein is that the finding and award of the Industrial Board is contrary to law and that as a matter of law the injury was not compensable because it was not caused by an accident arising out of and in the course of appellee's employment.
The facts most favorable to the appellee which must be considered in passing upon the contention of the appellant are that appellee, a man of 56 years of age, was an employee of the appellant in the capacity of 'a shipping and receiving clerk and a setup man and machine operator'; we are not apprised by the briefs of the extent, nature and character of the duties, activities, and engagements required by appellee in these various lines of work. It appears from the testimony of appellee that he had been lifting sides off the 'machines' as a part of his work 'up until September 1958, when I was injured.' Appellee testified that in the month of September, 1958:
The 'side' lifted by appellee weighed 'a good seventy (70) pounds or more.' Appellee was then instructed not to lift any more of the 'sides'. Appellee continued to work eight hours a day until October 24, 1958, on which date the employees of appellant 'walked out on a strike'.
From October, 1958, until May 10, 1960, appellee continued with medical treatment by Dr. Ebin. This physician testified concerning the various dates, examinations, particular conditions and complaints of appellee, the findings, and medical conclusions, during the time from October, 1958, to May, 1960. In substance, he stated that in December of 1956 the X-rays showed a moderate amount of osteoarthritis in the lower cervical region; that in October, 1958, he thought the numbness complained of by appellee was related to the arthritis of the spine in the lower cervical and upper thoracic region and he advised heat and traction; that in January, 1959, he thought it might be necessary to hospitalize appellee for physical therapy and a myelogram, and do a decompressive laminectomy; that on March 3, 1959 appellee was admitted to the hospital and on March 4, 1959 the witness did a myelogram, which was normal; that X-rays of appellee's cervical spine showed a 'slight bony encroachment on the neutral foramina between C3 and 4 vertebrae'; that on March 21, 1959, a cervical laminectomy was performed and the spinous process and right laminae of the second, third and fourth vertebrae of the cervical portion of the spine were removed; that 'indentations were noted in the dura on removal of the bone at the sites of the laminae which indicated that there was some pressure and that the pressure was from osteoarthritis.'
Appellee testified that the physician told him that 'you have some pieces in the vertebrae in your neck'; that 'It seems like when I go to turn my head it was just like a flash of lightning right up the back of my head'; he said the pain began when the lifted the siding and that he first observed this pain 'after I done that lifting'; that when Dr. Ebin told him 'there was pieces of my vertebrae, I knew that was caused by my lifting of something'. The medical witness, Dr. Ebin, was asked on direct examination:
'* * * from your knowledge of Mr. Brown's physical condition over a period of years, and from your clinical findings, * * * could the physical findings have been caused by or have been contributed to by the lifting of a seventy pound piece of metal and thereby making it impossible for Mr. Brown to straighten up after the lifting?'
to which question he answered 'Yes Sir'; and then the interrogatory was put to him: 'Was it contributed to by this lifting?' He answered, 'In my opinion it was'. In the course of his direct examination, Dr. Ebin, in explanatory manner, said that the spinal canal is the space within the vertebrae and contains the spinal cord, and nerves and membranes surround the spinal cord; that when a person bends over, the nerves are drawn taut and when a person does some movement requiring physical exertion, all of the muscles are held tautly; that in the spinal canal there is plenty of room for the nerve to go through in this opening without producing any compression of the nerve; that in the case where the patient has severe osteoarthritis of the spine there is a cord of new bone at the joints of the vertebrae and this protrudes into the spinal canal and when the nerve is drawn taut, the nerve would then be drawn over the bony surface and subjected to compression and irritation.
The physician further testified that he estimated that the percent of permanent impairment to appellee at the time of the hearing was about 20% of the man as a whole and that this estimated permanent impairment rating was arrived at by the fact that when he examined appellee in December, 1956, the latter was apparently not disabled at all, that he had osteoarthritis but he was functioning and able to do heavy work fairly well; and when he saw appellee on subsequent times on May 10, 1960, there was some impairment of his ability to do some of these things. On cross-examination, in response to the question of whether he was able to say what part of the 20% was caused by the arthritis condition, the physician said: 'I would say he had arthritis in 1956 and he has arthritis now and he is not able to function now like he was then.' The doctor again confirmed his previously expressed opinion that the 'physical observations' made by him on his examination of appellee in May, 1960 were caused or in part caused by the lifting appellee 'may have done' in September, 1958.
During the cross-examination of Dr. Ebin, appellant put in evidence three letters and medical reports of the witness directed to two of appellee's attorneys. In the three exhibits. Dr. Ebin made reference to the examinations, surgical procedures and treatments of appellee, stating the different physical regions of tenderness, numbness and pain experienced by appellee. In the first letter, Exhibit A, the witness stated that In some of the letters, the physician expressed his conclusion and opinion that the diagnosis in the case is osteoarthritis of the cervical spine and that the complained of sufferings by appellee were caused by osteoarthritis of the spine.
The foregoing facts and the reasonable inferences to be drawn therefrom, as established by the evidence most favorable to appellee, constitute the record which we must consider in examining the appellant's assignments of error. Therefore, we must apply to these facts the existing pertinent rules of law which we consider to be controlling as to such facts in order to...
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