Vantine v. Elkhart Brass Mfg. Co., Inc.

• Citation: 572 F. Supp. 636
• Decision Date: 30 September 1983
• Docket Number: No. S 82-510.,S 82-510.
• Parties: Kenneth C. VANTINE and Rebecca Vantine, Plaintiffs, v. ELKHART BRASS MANUFACTURING CO., INC., and Wausau Insurance Companies, Defendants.
• Court: U.S. District Court — Northern District of Indiana

572 F. Supp. 636

Kenneth C. VANTINE and Rebecca Vantine, Plaintiffs, v. ELKHART BRASS MANUFACTURING CO., INC., and Wausau Insurance Companies, Defendants.

No. S 82-510.

United States District Court, N.D. Indiana, South Bend Division.

September 30, 1983.

COPYRIGHT MATERIAL OMITTED

David T. Stutsman, Patricia K. Parker, Elkhart, Ind., for plaintiffs.

Evan E. Steger, Susan B. Tabler, Richard Smikle, Indianapolis, Ind., Edward N. Kalamaros, South Bend, Ind., R. Kent Rowe, South Bend, Ind., for defendants.

MEMORANDUM AND ORDER

SHARP, Chief Judge.

This action was originally filed in state court on October 7, 1982, against plaintiff Kenneth Vantine's employer and the employer's workmen's compensation insurance carrier. In that complaint, plaintiffs alleged, inter alia, that Kenneth Vantine's employment contract rights had been unlawfully terminated by his employer, Elkhart Brass, and that said termination constituted a tortious breach of contract for which both defendants were liable.

On November 12, 1982, defendant Elkhart Brass filed a Petition for Removal pursuant to 28 U.S.C. §§ 1441, 1446. In its petition, Elkhart Brass contended that the gravamen of the plaintiff's complaint was grounded on a theory of liability under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Because there is clearly no basis for diversity jurisdiction under 28 U.S.C. § 1332, the jurisdiction of this court over the claims presented must be predicated on a federal question theory under 28 U.S.C. § 1331 and 29 U.S.C. § 185.¹

The defendant Elkhart Brass filed its motion for summary judgment on July 5, 1983, and defendant Wausau filed a similar motion on July 22, 1983. Hearing and oral argument were held in open court on both motions on September 9, 1983. These motions are now ripe for ruling, and each will be addressed in its turn.

The original complaint filed in the Elkhart Superior Court No. 2 is in one pleading paragraph, with a total of seventeen numbered, rhetorical paragraphs. The plaintiffs make various allegations in the first twelve paragraphs, and the balance attempt to assert claims which sound entirely in tort. They are as follows:

(a) that the actions alleged in paragraphs 1 through 12 constitute willful, wanton, reckless and oppressive action by the defendants, designed to deprive Kenneth Vantine of his employment and workmen's compensation benefits;

(b) that each of these actions were fraudulent and tended to deprive Kenneth Vantine of his employment and workmen's compensation benefits;

(c) that each of these actions was grossly negligent and oppressive and intended to deprive to Kenneth Vantine of his employment and workmen's compensation benefits;

(d) that each of these actions constituted retaliatory acts against Kenneth Vantine due to his (Kenneth's) exercise of his rights under the workmen's compensation law of Indiana; and,

(e) that these actions constitute a tortious interference with Kenneth Vantine's employment contract rights and further constitute a breach of his employment contract.

I. WAUSAU's MOTION

The facts most favorable to the non-moving parties, as found from a review of their complaint, their responses to Wausau's request for admissions and their answers to Wausau's interrogatories, as well as the documents received from the Industrial Board of Indiana are as follows:

On January 25, 1980, Kenneth Vantine was employed by Elkhart Brass. On that date he was performing his duties as an employee on the second shift, lifting an indexer weighing approximately 150 to 200 pounds with a chain lift, when he sustained a severe and permanent injury to his back. He reported the injury immediately to his foreman and on the Monday morning following his accident reported it to his employer. He was referred by his employer to the company's physician, Dr. Hastings, of the Simpson Medical Clinic. After a period of treatment by Dr. Hastings, he was referred to Dr. Echeverria for an orthopedic evaluation.

Mr. Vantine was seen at the offices of Dr. Echeverria on February 5, 1980. Following the doctor's physical examination and a review of x-rays, he reported his findings to Dr. Hastings on February 14, 1980 as contained in his consultation letter of February 14, 1980. The report states:

DIAGNOSTIC IMPRESSION; Severe sprain of the L-S Lumbo-sacral (spine).

On May 14, 1980 Wausau requested that Vantine be examined by Dr. Earl Heller, a South Bend orthopedist, in South Bend, on June 19, 1980 at 8:00 a.m. by letter dated May 14, 1980.

As of June 19, 1980 Dr. Echeverria had made no recommendation to Vantine that he undergo surgery on his back. Nevertheless, on June 19, 1980 Dr. Heller told Vantine that he did not believe that surgery was necessary and that Vantine was physically able to return to work at Elkhart Brass. In his report, Dr. Heller said:

It is my feeling that the patient Mr. Vantine most likely sustained a lower back strain as a result of the injury that occurred on 1/25/80. However, I was unable to substantiate his continued complaints with any objective physical findings in my office. This patient should be encouraged to increase his activities and I do not find any objective findings that would prevent him from working at this time.

On August 29, 1980 Wausau requested that Vantine go to the offices of Morris S. Friedman, M.C., a South Bend orthopedic surgeon, on October 8, 1980 at 2:00 p.m. for a further evaluation of his condition. The appointment with Dr. Friedman was kept on September 19, 1980. At that time, Mr. Vantine was already aware of the fact that Dr. Echeverria contemplated performing surgery on his back and, in fact, Mr. Vantine informed Dr. Friedman thereof. Mr. Vantine knew that such surgery was scheduled by Dr. Echeverria to be performed on October 2, 1980.

On September 25, 1980, Dr. Friedman offered his findings on examination of Mr. Vantine as embodied in a report. Dr. Friedman's report states, in part:

An so, Dr. Echeverria had scheduled Mr. Vantine for a decompression lumbar laminectomy for October 2, 1980. Mr. Vantine was then referred to our office for a second opinion.

My recommendations forst of all, by all means, of course, avoid surgery. Secondly, prescribe a program of exercises for Mr. Vantine ... I should therefore, recommend that Mr. Vantine be assigned to a physical therapist who will supervise his exercise program, who could treat him with lumbar gravity traction, but most important who will encourage him to exercise and become more active for about 4-6 weeks and then I should suggest to Mr. Vantine that he go back to work. I told all of this to Mr. Vantine and suggested to him that he go back to his treating physician, and that he ask this physician to prescribe this program for him and hopefully he will be able to go back to work in another 4-6 weeks.

Notwithstanding the above, Dr. Echeverria performed surgery on Kenneth Vantine's back on October 2, 1980. While the surgery did not reveal a herniated disc, it did involve a lumbar fusion, medically necessary in Dr. Echeverria's opinion.

On October 14, 1980, Wausau sent a letter to Mr. Vantine denying any responsibility for the expense of such surgery or for any temporary total disability beyond six weeks from the date of Dr. Friedman's examination. Wausau denied payment for such surgery expense and suggested to Mr. Vantine that he submit the bills to the group insurance plan with defendant Elkhart Brass.

Because Vantine had an accident arising out of and in the course of his employment with Elkhart Brass, his injury was compensable under the Indiana Workmen's Compensation Act. Ind.Code § 22-3-2-1 et seq. Accordingly, Kenneth Vantine and the defendants entered into a so-called Form 12 Agreement as to Compensation on February 7, 1981.

Before any Industrial Board hearings, Wausau paid 39 and 6/9ths weeks temporary total disability benefits for the period January 25, 1980 to October 30, 1980 in a total sum of $5181.42 to Kenneth Vantine. These were part of the workmen's compensation benefits which Wausau paid to Mr. Vantine.

Because of the ongoing dispute regarding payment for Dr. Echeverria's services, a hearing was held on June 15, 1982, before a Single Hearing Member of the Industrial Board of Indiana. The hearing judge entered his Award on June 25, 1982. In that award, the plaintiff was ordered to be given an additional 10 5/7th weeks of temporary total disability benefits (from October 30, 1980 to January 13, 1981), and that all medical expenses stemming from the accident be paid, including Dr. Echeverria's surgery. With one minor change not relevant here, that Award was affirmed on appeal by the Full Industrial Board of Indiana on September 9, 1982.

The whole matter of whether Dr. Echeverria was an "attending" physician was an issue before the Industrial Board. The court will note that the second issue for determination by the Industrial Board was "additional statutory medical expense especially those of Dr. Echeverria". Under the Indiana Workmen's Compensation Act, the employer's or insurer's obligation to pay medical expenses depends upon whether the medical services were authorized by the employer or the insurer, except in certain recognized situations, such as in medical emergencies. Ind.Code § 22-3-3-4. See also, Perez v. United States Steel Corp., 172 Ind. App. 242, 359 N.E.2d 925 (1977). Regardless of the above, this issue was resolved by the Industrial Board of Indiana in favor of Mr. Vantine, i.e., the Industrial Board awarded Mr. Vantine the medical expenses he incurred with Dr. Echeverria.

Ind.Code § 22-3-3-4 provides, in part:

During the period of temporary total disability resulting from the injury, the employer shall furnish such physician, services and supplies, and the Industrial Board may, on proper application of either party, require that treatment by such physician and such services and supplies be furnished by or on behalf of the employer as the Industrial Board may deem

...