Rivera v. Simmons Co.
| Decision Date | 05 June 1975 |
| Docket Number | No. 2--973A196,2--973A196 |
| Parties | Angel L. RIVERA, Plaintiff-Appellant, v. SIMMONS COMPANY, Defendant-Appellee. |
| Court | Indiana Appellate Court |
Robert L. Pressler, Chudom & Pressler, Schererville, for plaintiff-appellant.
James E. Schreiner, Travis, Tinkham & Schreiner, Hammond, for defendant-appellee.
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.
When this case was first considered by us on July 12, 1973, it was determined that Therefore, it was remanded with directions to the Board to submit additional Findings specifically setting forth the facts upon which the award was based.
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.
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.
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:
'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 Rivera appeals those findings and conclusions.
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.)
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.
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.
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, J., concurring); Lasear, Inc. v. Anderson (1934), 99 Ind.App. 428, 192 N.E. 762; In re Bollman (1920), 73 Ind.App. 46, 126 N.E. 639; Tom Joyce Seven-up Co. v. Layman (1942), 112 Ind.App. 369, 44 N.E.2d 998.
There is no evidence that Rivera was engaged in any unusual or extraordinary employment duty. Indeed, he testified he noticed the back pain while engaged in the same task he had been performing for approximately one year. His act of carrying the die and bending over to place it on the storage rack presented no special hazard or increased risk above and beyond his normal, routine, and usual work duties. The Board specifically found that at the time Rivera experienced his back pain, he
'. . . was engaged in his usual employment . . . as a die setter in taking a die from a press and carrying same by hand to a die rack, that (he) . . . had performed this type of work as a die setter for approximately one (1) year prior to June 16, 1970 . . . and this activity was part of his assigned duties and was his usual, customary and routine work for (Simmons) . . ..'
So the Board properly concluded that Rivera did not suffer an accident arising out of his employment with Simmons.
The Record is equally void of evidence indicating 'injury or death by accident', 1 i.e., 'any unlooked for mishap or untoward event not expected or designed'. See Haskell, etc. Car Company v. Brown (1917), 67 Ind.App. 178, 187, 117 N.E. 555, 557. This definition has ostensibly been employed by this Court for nearly sixty years. 2
Our Supreme Court specifically approved this definition in United States Steel Corp. v. Dykes (1958), 238 Ind. 599, 154 N.E.2d 111:
Small's Workmen's Compensation Law of Indiana, § 6.20, p. 151.
'In each of the above instances the fatal heart attack was preceded by some type of untoward or unexpected incident, or there was evidence of the aggravation of a previously deteriorarted heart or blood vessel.' (Footnotes omitted.) (Emphasis supplied.)
The Court then concluded that for an injury to be compensable, some unexpected or untoward incident above and beyond the employee's routine or usual employment must take place:
'The mere showing that he was performing his usual routine everyday task when he suffered a heart attack does not establish a right to workmen's compensation because there was no event or happening beyond the mere employment itself.' (Emphasis supplied.)
This case is strikingly similar to City of Anderson v. Borton (1961), 132 Ind.App. 684, 178 N.E.2d 904:
'The evidence...
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