Wimmer Temporaries, Inc. v. Massoff, 93A02-0003-EX-161.
| Decision Date | 14 December 2000 |
| Docket Number | No. 93A02-0003-EX-161.,93A02-0003-EX-161. |
| Citation | 740 N.E.2d 886 |
| Parties | WIMMER TEMPORARIES, INC., and Amcast Industrial Corp., Appellants-Defendants, v. Martin MASSOFF, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Julia Blackwell Gelinas, Daniel G. Foote, Locke Reynolds LLP, Indianapolis, Indiana, Attorneys for Appellants.
David J. Burton, Burton & Simkin, Richmond, Indiana, Elizabeth G. Russell, Krieg DeVault Alexander & Capehart, LLP, Indianapolis, Indiana, Attorneys for Appellee.
Appellants Defendants, Wimmer Temporaries, Inc. (Wimmer) and Amcast Industrial Corp. (Amcast) (hereinafter referred to collectively as "Defendants"), appeal the Award of the Worker's Compensation Board of Indiana (Board), finding in favor of Plaintiff Appellee, Martin David Massoff (Massoff), who was a temporary employee of Amcast supplied by Wimmer.
We affirm.
Defendants raise the sole issue on appeal of whether the Board erred by concluding that Amcast acquiesced in Massoff's violation of a conspicuously posted safety rule.
Amcast is an aluminum casting foundry that provides cast aluminum parts for the automotive industry using a gravity permanent mold casting process. On January 16, 1997, Massoff, a temporary employee of Wimmer, began working as a caster at Amcast. Wimmer and Amcast stipulated to the fact that Massoff is their joint employee. On January 29, 1997, Massoff was injured while he was cleaning a part on the casting machine he operated as part of his job. On June 30, 1997, Massoff filed an Application for Adjustment of Claim with the Indiana Worker's Compensation Board for his injury on January 29, 1997.
As a caster, Massoff was responsible for operating an automated rotating table upon which sat eight molds that were automatically filled with molten aluminum as the table rotated or "indexed." The table indexed approximately every 40-50 seconds as molten aluminum was poured into one of the molds from a doser spout. It was Massoff's responsibility to periodically clean the doser spout by removing the excess aluminum from the doser spout. The proper way to clean the doser spout was to first shut down the table, and then enter the area behind the safety cage or safety gate and clean the machine.
Although it was common practice at the foundry to clean the doser spout while the table was in operation, on January 22, 1997, a safety notice was posted that stated that anyone found inside the safety gate or safety cage while the equipment was running would be disciplined.
It is undisputed that at the time of Massoff's injury, the table was in operation. Thereafter, Massoff filed his worker's compensation claim, and on June 23, 1999, the Board held a hearing. On September 8, 1999, a single member of the Board found in favor of Massoff, and concluded that the Defendants acquiesced in Massoff's safety violation. On September 27, 1999, Defendants filed an Application for Review by Full Board, and on October 4, 1999, Massoff filed an Application for Review by Full Board. On January 25, 2000, a hearing was held before the Full Board, and on February 15, 2000, the Full Board affirmed the Single Hearing Member's decision. Additional facts will be supplied when necessary.
Defendants face a deferential standard of review in their attempt to challenge the Board's findings. Upon appeal from a finding of the Worker's Compensation Board, the Court of Appeals is bound by the Board's findings of fact, and may not disturb its determination unless the evidence is undisputed and leads inescapably to a contrary conclusion. Rogers v. Bethlehem Steel Corp., 655 N.E.2d 73, 75 (Ind.Ct.App.1995). Instead, it is the duty of the Board, as the trier of fact, to make findings that reveal its analysis of the evidence and are specific enough to permit intelligent review of the Board's decision. K-Mart Corp. v. Morrison, 609 N.E.2d 17, 27 (Ind.Ct.App.1993), trans. denied. In reviewing a decision of the Board, the Court of Appeals reviews the record to determine if there is any competent evidence of probative value to support the Board's findings. We then examine the findings to see if they are sufficient to support the decision. Id. We will not reweigh the evidence or assess the credibility of the witnesses. Id. We employ a two-tiered standard of review. We will review the evidence in the record to see if there is any competent evidence of probative value to support the Board's findings and then examine the findings to see if they are sufficient to support the decision. Id. We will consider only the evidence most favorable to the award, including any and all reasonable inferences deducible from the proven facts. Neidige v. Cracker Barrel, 719 N.E.2d 441, 443 (Ind.Ct.App. 1999), reh'g denied. Therefore, to prevail upon their appeal, Defendants are required to show that there was no probative evidence from which the Board might reasonably conclude as it did. Because the record contains competent evidence to support the Board's claim, Defendants' appeal must fail.
Defendants argue that the plain language of the Indiana Worker's Compensation Act bars Massoff's worker's compensation claim because he knowingly failed to obey a conspicuously posted written safety rule. Specifically, Defendants contend that the term "acquiescence" has never been used so broadly as to eviscerate the plain language of Ind.Code § 22-3-2-8, and an employer's acquiescence to its employee's misconduct can only be used to defeat the affirmative defenses under Ind. Code § 22-3-2-8 when the acquiescence undermines one or more of the statutory elements of the defense. Essentially, Defendants claim that because they did not specifically direct Massoff to do that which was prohibited by its own written safety rules and Massoff was aware of the safety rule, they met their burden of proof that Massoff knowingly violated a posted safety rule. Therefore, Defendants argue that they are entitled to advance their affirmative defense to bar Massoff's worker's compensation claim, and the Board's decision denying their affirmative defense for their acquiescence to Massoff's violation of the rule is contrary to law and should be reversed. We disagree.
Ind.Code § 22-3-2-8 contains numerous affirmative defenses to liability available to an employer, barring an employee's worker's compensation claim for the employee's conduct. Specifically, the statute states:
No compensation is allowed for an injury or death due to the employee's knowingly self-inflicted injury, his intoxication, his commission of an offense, his knowing failure to use a safety appliance, his knowing failure to obey a reasonable written or printed rule of the employer which has been posted in a conspicuous position in the place of work, or his knowing failure to perform any statutory duty. The burden of proof is on the defendant.
Ind.Code § 22-3-2-8 (emphasis supplied).
Defendants assert that because they met their burden of proof that Massoff knowingly disobeyed a conspicuously posted safety rule, their acquiescence as to Massoff's violation is of no matter, and therefore, they should be entitled to assert an affirmative defense under Ind.Code § 22-3-2-8. However, the Board found otherwise, specifically concluding that:
1. It is further found that the plaintiff was hired as a temporary employee at Amcast Industrial Corp. approximately two weeks before the date of the accident and was trained to perform a certain procedure described as cleaning the doser spout without shutting the machine down.
2. It is further found that on or about January 22, 1997 a certain safety notice was posted in the glass case outside the break room at the place of employment.
3. It is further found that the plaintiff, Martin David Massoff, was aware of the safety procedure regarding shutting off the machine prior to cleaning the doser spout prior to the time of his accident herein.
4. It is further found that on the date of the occurrence supervisory and training employees observed the plaintiff cleaning the doser spout or performing another procedure without following the posted safety rule but neither the supervisory or training employee immediately counseled the plaintiff with respect to the safety violations as operations manager, Lingo, testified should have occurred.
5. It is further found that the safety procedure required the machine to be shut down and that a consequence of shutting the machine down is that the dies cool off and create more scrap parts.
6. It is further found that after the posting of the safety notice the coemployees who were responsible for training either the plaintiff or the person who was training the plaintiff engaged in the same practices that were prohibited by the safety notice; to-wit: cleaning the spout with the table running.
7. It is further found that on the evening of the occurrence the scene was described as `utter chaos' in that there were breakdowns and numerous problems causing parts to come out bad.
8. It is further found that immediately before the accident the plaintiff entered the doser spout area while the machine was still in operation and without following the safety procedure.
9. It is further found that notwithstanding the fact that the plaintiff did not follow the safety procedure, the defendants' defense, pursuant to I.C. 22-3-2-8, is hereby denied based on the supervisory or training employees' acquiescence in the violation of the safety procedure, both by failing to immediately counsel the plaintiff when they saw a safety procedure being violated and in failing to follow the appropriate safety procedures themselves in performing their duties after the posting of the safety notice. ...
(R. 63-64) (emphasis supplied).
First, the Defendants rely on U.S. Steel Corp. v. Mason, 141 Ind.App. 336, 227 N.E.2d 694 (1967), reh'g denied, for the...
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