Martinez v. Taylor Forge & Pipe Works
| Citation | 174 Ind.App. 514,368 N.E.2d 1176 |
| Decision Date | 07 November 1977 |
| Docket Number | No. 2-577A188,2-577A188 |
| Parties | Jessie L. MARTINEZ, Adolph Montez, Alvin Hickey, Jr., Albert Dencil Philpot, Roy M. Sanchez, Dempsey E. Wood, Thomas O. Banks, Plaintiffs-Appellants, v. TAYLOR FORGE & PIPE WORKS, Defendant-Appellee. |
| Court | Court of Appeals of Indiana |
Blachly, Tabor, Bozik & Hartman, Duane W. Hartman, Valparaiso, for plaintiffs-appellants.
Samuel J. Furlin, Spangler, Jennings, Spangler & Dougherty, Gary, for defendant-appellee.
Plaintiffs-appellants appeal from a decision of the full Industrial Board denying their applications for award under the Workmen's Compensation Act 1 and Workmen's Occupational Diseases Act. 2
The facts favorable to the Industrial Board decision show that the appellants were employed as operators of a steam hammer in defendant-appellee's forge shop for periods of five to 20 years. Due to the nature of the work done in the plant, there was a high level of noise. Appellants complaint of a permanent partial noise-induced hearing loss which occurred gradually during their lengthy employment. Their claims for compensation followed their employer's cessation of operation in Lake County in August of 1972.
The Board found that appellants did not sustain a hearing loss by reason of an accident arising out of and in the course of their employment within the meaning of the Workmen's Compensation Act, nor did appellants sustain a hearing loss by reason of contracting an occupational disease arising out of and in the course of their employment within the meaning of the Workmen's Occupational Diseases Act.
The issue presented for our review is:
Whether the Industrial Board decision that noise-induced hearing loss in this case was not compensable under either the Workmen's Compensation Act or the Workmen's Occupational Diseases Act was contrary to law.
This court in reviewing a decision of the Industrial Board will only consider that evidence which supports the decision and reasonable inferences therefrom. The court cannot weigh the evidence or determine the credibility of witnesses. On appeal from a negative decision, appellants must show that the decision was contrary to law by showing that the evidence was without conflict, that it would lead to but one conclusion, and that the Industrial Board reached the opposite conclusion. Ellis v. Hubbell Metals, Inc. (1977), Ind.App., 366 N.E.2d 207.
In order to qualify for an award under the Workmen's Compensation Act (Act), a claimant must establish an injury or death by accident arising out of and in the course of employment. IC 1971, 22-3-2-2, (Burns Code Ed.). "Accident," within the Act, refers to some mishap or untoward event not expected or designed. Estey Piano Corp. v. Steffen (1975), Ind.App., 328 N.E.2d 240.
This court in Ellis v. Hubbell, Inc., supra, recently examined the theories used by Indiana courts in defining the type of unexpected event which is to be characterized as an "accident." Reasoning that the "unexpected result" 3 theory is more in keeping with the Act which the courts are to liberally construe in favor of the worker, we applied that theory in Ellis and do likewise in the case at bar.
Here, the full Industrial Board adopted the parties' stipulation of facts as its findings. Those findings, as set out below, explicitly state that the claimants suffered neither unexpected nor unforeseen hearing loss from their normal work activities:
That the plaintiffs knew during all of their employment with defendant that there was a high level of noise at their place of work.
That working over a long period of time and the particular employment of plaintiffs which is involved and described herein, noise-induced hearing losses would be expected, anticipated and foreseen by reasonable and ordinary men, especially if they did not wear adequate protective ear devices.
That approximately ten (10) years prior to the closing of defendant's plant in 1972, plaintiffs began to notice a loss of hearing. That the plaintiffs' loss cannot be traced to any one particular incident or event or incident which occurred during their employment and after which they immediately experienced a loss of hearing, but the loss occurred gradually over a long period of time while plaintiffs performed their usual and routine everyday work tasks, operating the steam hammer in the Forge Shop.
That plaintiffs, as well as other members of the general public, were exposed to noise outside of their place of employment before, during, and after the course of their employment with defendant herein, which noise over a long period of time also produced some noise-induced hearing loss to plaintiffs and the public in general, and plaintiffs would also be subjected to the normal hearing loss due to old age that the general public is subjected to. That the noise to which plaintiffs were exposed at their place of employment during working hours for defendant was much greater than the noise to which they were exposed after their working hours.
That nothing extraordinary occurred during plaintiffs' employment with defendant to cause any noise-induced hearing loss. That no untoward or unexpected incident or event occurred during plaintiffs' employment with defendant, and there was no event or happening beyond the nature of the employment itself. That the noise-induced hearing loss to plaintiffs herein would not have been untoward or unexpected to reasonable and ordinary men under same or similar circumstances.
The findings-stipulations speak for themselves.
For this court to hold that an accident arising out of or in the course of employment occurred in this case would stretch the meaning and concept of accident to to use the words of Judge Buchanan, dissenting in Inland Steel Co. v. Almodovar (1977), Ind.App., 361 N.E.2d 181, 189, "the breaking point." 4
We decline to do so.
We also decline to stretch the meaning of occupational disease to incorporate the type of noise-induced hearing loss suffered here.
In order to qualify for compensation under the Workmen's Occupational Diseases Act, a claimant must establish: (1) that he has suffered an "occupational disease" 5; and (2) that he has suffered a "disablement." 6 See: Durham Mfg. Co. v. Hutchins (1945), 115 Ind.App. 479, 58 N.E.2d 444; B. Small, Workmen's Compensation in Indiana § 13.4 (1950).
With regard to the first requirement of proof, IC 1971, 22-3-7-10(b) states:
(b) A disease shall be deemed to arise out of the employment, only...
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