Lovely v. Cooper Indus. Products, Inc., 2-381A84

Citation429 N.E.2d 274
Case DateDecember 22, 1981
CourtCourt of Appeals of Indiana

Page 274

429 N.E.2d 274
William LOVELY, Plaintiff-Appellant,
No. 2-381A84.
Court of Appeals of Indiana, First District.
Dec. 22, 1981.

Grant Van Horne, Van Horne & Turner, Auburn, for defendant-appellee.

NEAL, Presiding Judge.


This is an appeal by plaintiff-appellant William Lovely (Lovely) from a negative award by the Full Industrial Board (Board) denying compensation to Lovely for alleged injuries to his back which he claimed were received during the course of his employment at Cooper Industrial Products, Inc. (Cooper). Lovely contends that the Board's findings are not supported by the evidence.

We affirm.

Page 275


On September 28, 1979, Lovely, age 54, had to leave work due to severe back pains. He had worked at Cooper for eleven years as an operator of two machines which had a related function, a wheelabrator and a degreaser. The function of the machines was to clean dirt and rust from parts. Parts, with an aggregate weight of several hundred pounds, were brought to the machines in bulk by a large magnet which carried them along an uneven track. The work sometimes involved heavy pulling and jerking by Lovely. Also involved was lifting a heavy door, as well as shoveling parts off the floor with a scoop shovel. Testimony was that the work was moderately heavy, requiring arm and back strength and exertion, and Lovely testified it was very hard on his back. Three to four production cycles per hour were run during his eight hour day. Lovely testified that he did not remember a particular incident, or a particular time, or blow that coincided with the onset of the pain. He testified that he was stiff on September 25, sore on the 26th and 27th, and on September 28, he had to leave work because of severe pain in his back about the belt line. On the night of September 28, the pain became worse, and throughout the weekend, progressed to the point that he was unable to go to work on the Monday following. Instead, he visited Dr. Stallman. He was not hospitalized, but was prescribed pain pills. Lovely had some history of a sore back going back to 1973 when he missed two weeks of work from what was diagnosed as a sprained back, with attendant arthritis. Lovely was of the opinion that the heavy work had a lot to do with his back trouble.

Unable to return to work, Lovely applied for and received 26 weeks of sick benefits before a group insurance policy provided by his employer. The application, which was signed by Lovely, stated that his condition was not job related. At the hearing before the hearing member of the Industrial Board he insisted that he had never made such a statement. He further said that no one read him the application, and he could not have read it without his glasses.

The only medical evidence introduced at the hearing was the testimony of Dr. Carl F. Stallman. After relating Lovely's history, similar to the above facts, Dr. Stallman described Lovely as limping, and as having difficulty sitting in a chair and getting up. Lovely could scarcely bend over 45 degrees without considerable pain. The straight leg raising test was very painful to him. X rays disclosed a mild narrowing of the fourth lumbar disc interspace and a severe narrowing of the fifth lumbar disc interspace. One Dr. Hershberger, an orthopedic specialist who examined Lovely at Dr. Stallman's request, informed the latter of the presence of muscle spasms. One vertebra had collapsed upon another one, and the disc space was absolutely gone. Dr. Stallman's diagnosis was low back pain with right sciatica probably due to a ruptured disc. He prescribed pain pills, a muscle relaxant, physiotherapy and a lumbar-sacrial support. He did not recommend surgery because the results of back surgery are frequently poor, but he left that decision to Lovely. Although Lovely's condition was at a quiescent stage, he was totally disabled and unable to work. Dr. Stallman stated that Lovely's complaints were consistent with a back injury and consistent with the heavy lifting and tugging that he did at his work. He felt that the condition "had to do with the heavy lifting."

On cross-examination Dr. Stallman acknowledged his awareness of Lovely's history of back trouble. He also said that Lovely told him of no specific event coinciding with the onset of the pain and that his condition could be described as a degenerative disc disease. He had hypertrophic, or growing boney arthritis in 1973-74, and it could be a condition that any 54-year-old man would be likely to have. He conceded that the arthritis was not caused by lifting and could, in itself, cause the pain. Dr. Stallman stated that it was equally likely that either the heavy lifting or the osteoarthritis and degenerative disc disease contributed to Lovely's condition. "It would be hard to say how much caused what, and so on." Other factors, he said, such as

Page 276

sleeping positions, can cause back pain. The severe arthritis was very similar to the condition he had in 1973-74, and there had been a progression of it since that time. However, repeated injuries can make osteoarthritis worse. He concluded by admitting that there was no way of knowing within the limits of reasonable medical certainty whether the heavy lifting occurred within two years of September 1979, or before then.

In denying the claim the Board made the following findings that are relevant to this discussion:

13. That the Plaintiff suffered from degenerative disc disease, and osteoarthritis in his back and that these conditions could have caused the Plaintiff pain.

14. That the Plaintiff's osteoarthritis and disc disease are degenerative and progressing with age.

16. That after initially seeing a doctor on October 1, 1979, the Plaintiff applied for accident and safety benefits through the employer's group plan, and stated that his condition was not due to an injury or sickness arising out of employment.

29. That the Plaintiff has not established that there has been an untoward or unexpected incident or an untoward or unexpected result occurring during the course of his employment which caused his present condition."


Lovely states the sole issue presented by this appeal as follows:

"Does the evidence in the record lead inescapably to the conclusion that Lovely is totally and permanently disabled by a back injury due to an accident arising out of and occurring in the course of his employment at Cooper."


If the award of the Full Industrial Board is supported by competent evidence, it will not be reversed upon appeal. It is the duty of the Board to weigh the evidence and draw reasonable inferences from the facts. 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. When reviewing the record 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. Lincoln et al. v. Whirlpool Corporation, (1972) 151 Ind.App. 190, 279 N.E.2d 596; Soetje and Arnold, Inc. v. Basney, (1941) 218 Ind. 538, 34 N.E.2d 26. The plaintiff in Workmen's Compensation cases bears the burden of proof. Milholland Sales and Engineering Company v. Griffiths, (1931) 94 Ind.App. 62, 178 N.E. 458; Lincoln, supra. Only if there is a showing that the award was not supported by evidence of probative value will we be compelled to hold as a matter of law that the findings of the Full Industrial Board do not rest upon a foundation of fact. Rankin v. Industrial Contractors, Inc., (1969) 144 Ind.App. 394, 246 N.E.2d 410. If the Board, in determining the ultimate facts, reaches a legitimate conclusion from the evidentiary facts, this court cannot disturb that conclusion even though we might prefer another conclusion equally legitimate. Wolf v. Plibrico Sales and Service & Liberty Mutual Insurance Company, (1973) 158 Ind.App. 111, 301 N.E.2d 756, 304 N.E.2d 355 trans. denied.

Lovely cites five cases in support of his contention: Calhoun v. Hillenbrand Industries, Inc., (1978) 269 Ind. 507, 381 N.E.2d 1242; Ellis v. Hubbell Metals, Inc., (1977) Ind.App., 366 N.E.2d 207; Wolf, supra; Rankin, supra; American Maize Products Co. v. Nichiporchik, (1940) 108 Ind.App. 502, 29 N.E.2d 801.

Under the statute, " 'Injury' and 'personal injury' mean only injury by accident arising out of and in the course of the employment and do not include a disease in

Page 277

any form except as it results from the injury." Ind.Code 22-3-6-1(e) (Supp.1981). The term "accident" is defined as an unlooked for mishap, or untoward event which is not expected or designed. American Maize Products Co., supra. An injury may be the result of accidental means though the act involving the accident was intentional. American Maize Products Co. Where a condition was brought about by a succession of relatively slight blows which accumulated and resulted in a serious and disabling injury, it is compensable as though the blow or incident occurred at one time. American Maize Products Co.

In both Rankin, supra, and Wolf, supra, the claimants were engaged in performing their normal work duties when they began to experience pain. Each claimant went to his family doctor, and both claimants continued to work after the onset of the pain, but were forced to stop because the pain was too severe. In each case the Board denied compensation, and in each case this court reversed the decision of the Board. In Rankin the pain commenced while claimant was operating a fork lift over ruts which caused jolting. A herniated disc was discovered. The medical testing indicated that there were progressive degenerative changes in the joint, and the eventual collapse of the joint, due to the jolting, was "a new part of the same condition." Rankin, 144...

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