McDaniel v. Sage

• Decision Date: 18 August 1977
• Docket Number: No. 2-1275A381,2-1275A381
• Citation: 366 N.E.2d 202,174 Ind.App. 71
• Parties: Richard E. McDANIEL, Appellant (Plaintiff below), v. Charles B. SAGE, M. D., Margaret Watters, Wabash Life Insurance Company, Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 202

366 N.E.2d 202

174 Ind.App. 71

Richard E. McDANIEL, Appellant (Plaintiff below), v. Charles B. SAGE, M. D., Margaret Watters, Wabash Life Insurance Company, Appellees (Defendants below).

No. 2-1275A381.

Court of Appeals of Indiana, Second District.

Aug. 18, 1977.

Michael J. Tosick, Ging, Free & Brand, Greenfield, for appellant.

Robert C. Riddell, Michael A. Bergin, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Richard E. McDaniel (McDaniel) appeals the dismissal for lack of subject matter jurisdiction of his claim against his employer, Wabash Life Insurance Company (Wabash), for malpractice of its medical staff, claiming inapplicability of the Indiana Workmen's Compensation Act to his injury.

We affirm.

FACTS

On March 7, 1973, McDaniel was employed by Wabash, and while on the job experienced weakness and light-headedness which was not from a work related cause.

He sought treatment from Wabash's medical staff located in the same building. The physician, Charles B. Sage (Sage), ordered an injection which McDaniel alleges was wrongfully and negligently administered by his nurse, Margaret Watters (Watters), resulting in permanent damage to his ulnar nerve.

As a result of this injury, McDaniel filed suit on March 5, 1975, against Wabash, Sage, and Watters.

On May 15, 1975, McDaniel's claim against Wabash only ¹ was dismissed for lack of jurisdiction over the subject matter pursuant to Indiana Rules of Procedure, Trial Rule 12(B)(1). Judgment was entered for Wabash on July 24, 1975, and McDaniel's appeal follows.

ISSUE

Was McDaniel's visit to Wabash's medical staff within the health, comfort, and convenience rule so that injury resulting therefrom would be covered exclusively by the Indiana Workmen's Compensation Act?

PARTIES CONTENTIONS McDaniel contends that because his original sickness was not work related, any malpractice by his employer's medical staff in treating that personal illness was not covered by the Indiana Workmen's Compensation Act and he therefore has an independent claim against his employer for providing the services of an incompetent physician and nurse.

Wabash counters that the medical services it gratuitously furnished were for McDaniel's physical comfort and necessity and any injury resulting therefrom consequently arose out of and was in the course of his employment.

DECISION

CONCLUSION McDaniel's visit to Wabash's medical staff was within the health, comfort, and convenience rule so that injury resulting therefrom was covered exclusively by the Indiana Workmen's Compensation Act.

The Indiana Workmen's Compensation Act (hereinafter the Act) provides coverage for "personal injury or death by accident arising out of and in the course of the employment." ²

That there was a personal injury by accident is not questioned. But did it arise out of and in the course of McDaniel's employment?

As a general rule, if an employee receives medical attention for an injury which arose out of and in the course of his employment, new injury or aggravation of the injury under treatment, as a result of that treatment, has been considered as arising out of and in the course of the employment for workmen's compensation coverage. ³ This general rule has been followed in Indiana even when the aggravation of a work related injury is caused by medical malpractice.

In Seaton v. United States Rubber Co. ⁴, the Indiana Supreme Court affirmed the trial court's sustaining of a demurrer to the employee's complaint against the employer. Because the employee had failed to elect to pursue his common law remedy (which was possible at that time), the Seaton court held the Act provided the exclusive remedy against the employer as the malpractice was merely an aggravation of a work related injury. ⁵

In this case, however, the illness precipitating the medical treatment was not job related in any manner. By emphasizing the nature of the original illness, McDaniel attempts to make coverage under the Act, for later additional injury resulting from treatment, dependent on whether the original illness was employment related.

Although we find no direct answer in prior Indiana law, any such distinction is not persuasive.

The requirement, that for an injury to be compensable it must arise out of and be in the course of the employment, is examined by Small's Workmen's Compensation Law of Indiana:

The Court continues to require that in order for an injury to be compensable it must both arise out of and be in the course of the employment and further that neither alone is enough. The words "arising out of" have been held to refer to the origin or cause of the accident and are descriptions of its character and this test is met when there is apparent to a rational mind a causal connection between the conditions under which the work is required to be performed and the resulting injury. An accident occurs in the course of the employment where it takes place within the period of the employment, at a place where the employee may reasonably be and while he is fulfilling the duties of the employment, or is engaged in doing something incidental to it. The words "in the course of" are said to refer to the time, place and circumstances under which the accident occurs. ⁶

It has been generally recognized that

(s)uch acts as are reasonably necessary to the life, comfort and convenience of a workman, though personal to himself, and not technically acts of service, may be incidental to service. If so, an accident occurring in the performance of such an act is deemed to have arisen out of the employment. ⁷

With regard to whether an act is in the course of employment, it has been observed that:

Workmen are not chained to their positions. Temporary departures from work are to be expected, and will not necessarily defeat an award of compensation. It is only when the detachment takes the workman far enough away from the purpose of his employment to amount to an abandonment that the question becomes critical. . . .

Compensation has been allowed for injuries incurred while the workman was attending to some need of comfort or necessity to himself. ⁸

Thus, we look not to the original illness but to the circumstance (visiting an employer's health facilities) causing the injury (damage to the ulnar nerve), and ask whether visiting an employer's health facilities is a service which an employee might be expected to utilize.

Numerous cases have recognized an award of compensation under circumstances in which the employee was injured while not performing his usual duties. See, e. g., American Steel Foundries v. Czapala (1942), 112 Ind.App. 212, 44 N.E.2d 204 (eating lunch and heating coffee); Red Cab, Inc. v. Ziegner (1940), 108 Ind.App. 607, 29 N.E.2d 330 (going to the toilet on employer's premises); National Biscuit Co. v. Roth (1925), 83 Ind.App. 21, 146 N.E. 410 (falling from bakery window while cooling himself on his rest period); Wasmuth-Endicott Co. v. Karst (1922), 77 Ind.App. 279, 133 N.E. 609 (getting a drink); In re Ayres (1918), 66 Ind.App. 458, 118 N.E. 386 (washing up); Holland-St. Louis Sugar Co. v. Shraluka (1917), 64 Ind.App. 545, 116 N.E. 330 (going to answer a telephone call).

So we conclude...