Rivera v. Simmons Co., No. 2--973A196

• Docket Nº: No. 2--973A196
• Citation: 329 N.E.2d 39, 164 Ind.App. 381
• Case Date: June 05, 1975
• Court: Court of Appeals of Indiana

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329 N.E.2d 39 164 Ind.App. 381 Angel L. RIVERA, Plaintiff-Appellant,
v.
SIMMONS COMPANY, Defendant-Appellee. No. 2--973A196. Court of Appeals of Indiana, Second District. June 5, 1975.
Rehearing Denied July 9, 1975.

[164 Ind.App. 382] Robert L. Pressler, Chudom & Pressler, Schererville, for plaintiff-appellant.

James E. Schreiner, Travis, Tinkham & Schreiner, Hammond, for defendant-appellee.

BUCHANAN, Judge.

CASE SUMMARY

Review is sought by Plaintiff-Appellant, Angel L. Rivera (Rivera), from a negative Award entered by the Full Industrial Board of Indiana (the Board) in favor of Defendant-Appellee, Simmons Company (Simmons), in which compensation was denied for back injuries sustained while lifting a heavy die, claiming sufficient evidence exists to prove the accident arose out of his employment with Simmons.

We affirm.

CASE HISTORY

When this case was first considered by us on July 12, 1973, it was determined that

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the Findings of Fact originally entered by the Board on January 10, 1973, were not sufficiently specific to enable this Court to intelligently review the Board's decision. Rivera v. Simmons Co. (1973), Ind.App., 298 N.E.2d 477.

Therefore, it was remanded with directions to the Board to submit additional Findings specifically setting forth the facts upon which the award was based.

In compliance, the Board submitted its 'Findings of Full Industrial Board on Form No. 16 Application for Review in MaKing Corrected Award', on August 7, 1973; they are set forth below.

[164 Ind.App. 383] FACTS

The evidence before the Board most favorable to Simmons indicates the following.

Rivera was employed by Simmons as a die setter, a job he had held for six years prior to June 16, 1970. A part of his regular and normal duties included lifting dies weighing between fifty and one hundred pounds several times each day and carrying them from the die machine to a storage rack a few feet away.

On June 16, 1970, at approximately 2:30 p.m., Rivera was carrying a die for the fourth time that day. He testified that it weighed between ninety and ninety-five pounds. As Rivera bent over to place the die on the storage rack, he noticed a pain in his lower back. He dropped the die onto the rack and reported his pain to the foreman, who in turn referred him to the plant nurse. She provided Rivera with a rubbing pomade after which he returned to his job.

The following day, Rivera went to the Hammond Clinic where X-rays were taken and pain medication supplied to Rivera.

He continued to work at Simmons and visited the clinic twice a week for an indeterminate period of time. Some months later, due to increasing pain, Rivera was referred to a neurosurgeon who diagnosed his problem as a herniated intervertebral disc and surgery was performed on his back. As a result thereof, he missed twenty-six weeks of work for which he seeks workmen's compensation benefits.

Rivera's claim was heard by a Hearing Member who, based on the foregoing evidence, denied benefits for temporary total disability, finding that there was an absence of any untoward event, injury, or accident arising out of his employment with Simmons. Thereafter, Rivera filed an Application for Review by the Full Board and on August 7, 1973, the Board filed the following Findings of Fact and Conclusions of Law:

[164 Ind.App. 384] 'That on June 16, 1970, plaintiff was employed by defendant at an average weekly wage in excess of Ninety Five Dollars ($95.00); that on June 16, 1970, plaintiff was engaged in his usual employment with defendant as a die setter in taking a die from a press and carrying same by hand to a die rack; that plaintiff had performed this type of work as a die setter for approximately one (1) year prior to June 16, 1970, for defendant and this activity was part of his assigned duties and was his usual, customary and routine work for defendant; that on June 16, 1970, as plaintiff was hand carrying a die from a press to the die rack and was about to place the die in the rack, plaintiff felt a pain in his lower back; that on June 16, 1970, there was no untoward event, injury, accident or accidental injury to plaintiff while employed by defendant . . ..'

'The full Industrial Board now concludes as a matter of law that on June 16, 1970, plaintiff was employed by defendant at an average weekly wage in excess of Ninety Five Dollars ($95.00); that on June 16, 1970, there was no untoward event, injury, accident, or accidental injury to plaintiff while employed by defendant; that plaintiff did not sustain

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an accident injury arising out of and in the course of his employment with defendant on June 16, 1970; that any disability or impairments sustained by plaintiff did not arise from an accidental injury arising out and in the course of his employment with defendant, and plaintiff's condition, if any, is due to causes wholly unrelated to his employment with defendant; that plaintiff take nothing by his Form 9 Application and that an award be entered denying compensation to plaintiff andin favor of defendant, and that plaintiff pay costs, if any, taxed in this cause.' (Emphasis supplied.)

Rivera appeals those findings and conclusions.

ISSUE

The parties have stipulated the issue before us to be:

Did the Board properly conclude that Rivera did not suffer an accident arising out of and in the course of his employment with Simmons?

Rivera contends that the back injury sustained by him constitutes an accident which arose out of his employment as he had no pre-existing back affliction and the pain occurred while he was carrying a heavy die.

[164 Ind.App. 385] Simmons argues that there was no evidence of any increased work load, unusual or extra exertion, or aggravation of a pre-existing back injury, and Rivera, experiencing his back pain while performing his normal routine employment duties, did not therefore suffer an accident within the meaning of the Workmen's Compensation Act.

DECISION

CONCLUSION--It is our opinion that the Board properly determined Rivera did not suffer an accident arising out of his employment with Simmons.

In order for an employee to receive compensation under the Workmen's Compensation Act, he must specifically show some increased risk or hazard present in his employment which caused his injury:

'. . . (I)t seems that where there was evidence from which the Board could have reached the inference that the hazard or risk was increased then, under such circumstances, the finding of the Board in favor of the claimants was not disturbed, and where there was a lack of evidence of an increased risk and a failure to grant an award, the court likewise refused to disturb the results reached by the Board.' (Emphasis supplied.)

E. I. duPont, etc. v. Lilly (1948), 226 Ind. 267, 272, 79 N.E.2d 387, 389.

See also, B.P.O. Elks, No. 209 v. Sponholtz (1969), 144 Ind.App. 150, 244 N.E.2d 923; Rankin v. Industrial Contractors (1969), 144 Ind.App. 394, 246 N.E.2d 410; Dooley v. Richard's Standard Service (1969), 145 Ind.App. 470, 474, 251 N.E.2d 449 (Cooper,...