Wolf v. Plibrico Sales & Service Co., 2--673A148
| Decision Date | 16 October 1973 |
| Docket Number | No. 2--673A148,2--673A148 |
| Citation | 158 Ind.App. 111,301 N.E.2d 756 |
| Parties | Gene WOLF, Appellant, v. PLIBRICO SALES & SERVICE COMPANY and Liberty Mutual Insurance Company, Appellees. |
| Court | Indiana Appellate Court |
Frank A. Webster, Fort Wayne, for appellant.
Leonard E. Eilbacher, Fort Wayne, for appellees.
The Appellant, Gene Wolf, filed his Form 9 Application which was granted by the Single Hearing Member and denied by the Full Industrial Board. Two members of the Full Board dissented from its decision.
This case was hotly contested by able counsel who presented a wide range of evidence including medical evidence. If the evidence permitted the decision of the Full Industrial Board we will not reverse unless it is contrary to law. The Appellee asserts that such evidence permits the inference that the Appellant's back problems were gradual and progressive.
Plaintiff was employed during the summer of 1971 by Plibrico Sales & Service, Inc., which company engaged in repair work on boilers and industrial furnaces. During a period in July of 1971 a crew of the defendant was working at Joslyn Steel in Fort Wayne, repairing a 'walking beam furnace', which is described as being approximately 20 feet long and 9 feet wide and 28 inches high. The plaintiff was required to work in the furnace on July 3 and July 9, 1971, while Joslyn Steel was shut down for two weeks in July for its annual shut-down in the course of carrying out and replacing the lining of the furnace with refractory material. While working in the furnace, the crew would work either in a kneeling position or bent over. Plaintiff recalled that he did work two or three days a week and experienced normal aches as did his co-workers, but on July 9, 1971, he experienced a sharp pain while working in the furnace and he reported to his foreman that his back was 'killing him', whereupon plaintiff went to his family doctor rather than the company doctor. After seeing his doctor, he returned to the job and worked several hours overtime. He worked the following week in Edgerton, Ohio, and then later was off a few days or a week until he was hospitalized by his doctor about August 10, 1971, for eleven days, and was unable to work again for defendant employer. He was diagnosed as having a severe lumbro-sacral sprain.
The description of the events by the Appellant are, in part, as follows:
'Q. When did you first notice the problem and what was the nature of the problem that you had in regard to your injury here?
A. Well, usually when you start working in this, why, your back starts hurting and you don't think too much about it. But, it just kept getting worse to the point where I couldn't stand it. And the last day that we worked out there I told the foreman, I said, 'I can't take it any longer.' I said, 'I'd like to go to the doctor.' And he told me I could.
Q. And what was his name?
A. Dan Holom.
Q. And he's the man that we have the deposition of here?
A. Yes.
Q. And you went then to your family doctor?
A. Yes, sir.
Q. And what's his name?
A. Dr. Krueger.
Q. And he's here in Fort Wayne, Indiana?
A. Yes, sir.
Q. And that was approximately when, July when?
A. July the 9th.'
'Q. And that was the last day that you worked for Plibrico Sales & Service Company?
A. No, sir.
Q. Did you go back and try to work again?
A. I went to the doctor and went back to work. He gave me some pain pills and took some x-rays and I went back to work.
Q. And how long--when did you go back to work?
A. As soon as I went home and changed my clothes and I went back to work out at Joslyn.
Q. And how long did you work again?
A. That was the last day out there. We finished up there and then was in Edgerton, Ohio, the next week. And I worked over there until I couldn't take it any longer and then I was off, I think possibly, maybe three or four days or a week. And then I went to Linton, Indiana, at General Electric down there and was down there approximately ten days and then the first of August was the last that I worked. Around the first of August, I can't say just the exact date.'
'Q. Now, would you describe again, I believe you say that July 9th is when you told your foreman that you felt so bad you were going to see your doctor, is that correct?
A. Yes, sir.
Q. And would you describe that it was sometime before that--how many days before then that you first noticed the back pain being worse than usual?
A. Well, I don't know for sure. Probably a week. Three or four days or five. Somewhere around there.
Q. That it started bothering you pretty bad?
A. Yes, sir.
Q. And it finally got so bad on the 9th of July that you decided that you better go see your family doctor?
A. Yes, Sir.'
'Q. Now, did you tell Dr. Krueger that your back had been bothering you for two weeks?
A. I don't recall just what I told him.
Q. But, at any rate, you saw Dr. Krueger on that day on July 9th and you went back to the Plibrico job at Joslyn?
A. Yes, sir.
Q. Do you recall working overtime that day?
A. Yes, sir.
Q. As a matter of fact, you worked fifteen hours that day, does that sound right to you?
A. That's probably close to it.
Q. And at some point of time then in August I understand Dr. Krueger put you in the hospital?
A. Yes, sir.
Q. You didn't have any surgery?
A. No, sir.
Q. No specialists saw you?
A. No, sir.
Q. And then there came a time in December where Dr. Krueger released you to go back to work?
A. Yes, sir.
'Q. I forgot what you told me when I asked if you told Dr. Krueger on July 9th that your back had been bothering you a couple weeks, does that sound correct?
A. Like I say, it's been a good while ago. I don't recall. I think possibly it had been bothering me maybe a week.
Q. Do you know where you had been working a week before you went to see Dr. Krueger on July 9th?
A. Possibly, well I'd worked probably on the week ends at Joslyn, and then I was in and out. I probably was working at Goshen Rubber, just guessing. I don't know for sure.
Q. Now, on this July the 9th, when you first told your foreman that you wanted to go see your family doctor, is it correct that there wasn't any particular thing that you lifted, or nothing fell on you, there wasn't anything particular that you did that caused your back to hurt?
A. Other than being in this confined area.
Q. You weren't doing anything unusual on that particular day or that particular time that you hadn't done in similar situations in places like that?
A. Well, normally you don't work in a confined area like that. That's the only one I know of.
Q. Had you worked at Joslyn before?
A. Oh, off and on. You'll work there once a year at shut-down time.
Q. You work in the walking beam furnace?
A. Yes, sir.
Q. This was a shut-down period at Joslyn that you were rebuilding the furnace?
A. Yes, sir.
Q. There were several men on that job working in there?
A. Yes, sir.
Q. And some of them worked there more than you did, is that right?
A. Yes, sir.
Q. Now, were you having problems right from the start of your first day at that Joslyn job?
A. Well, when you crawl in a walking beam you're not in there long until your back starts bothering you anyway. This time it just kept getting worse to the point I couldn't take it any longer.
Q. Did I understand that at some point in time your back started bothering you and you felt it was getting progressively more painful and finally on July 9, you decided to go and see the doctor?
A. I asked Mr. Holom if it would be all right if I'd go.
Q. If I could refresh your recollection, is it possible that you hadn't worked at Joslyn between the 4th of July, which was a Sunday, until Friday, July the 9th, when you went to see the doctor?
A. That's possible.
Q. And would it be possible that you hadn't worked at Joslyn prior to that July the 4th, until back on June the 27th, the previous Sunday?
A. This, I can't answer for sure.
Q. When did you first tell the people at Plibrico that you thought you hurt your back on the job?
A. I don't recall. I presume probably the day that I told Mr. Holom I would like to go the the doctor.
Q. Didn't you tell me you didn't have any particular discussion on that day about the situation?
A. He asked me what I wanted to go for and I said, 'My back's a killing me.'
Q. That's about all that was said?
A. That's about all that was said, and he said, 'Okay.'
Q. How many men were working in that walking beam furnace at Joslyn for Plibrico?
A. Oh, normally I suppose there's probably maybe three or four guys working in that, in that confined area at a time. There's other work to be done too.
Q. No kind of accident happened on July the 9th in that walking beam furnace, did it?
A. Other than when you just--when they hand this material for you to pound, you have to pick it up in a bucket or something and it's heavy and you're in this bent over position and it's--
A. That's the same kind of work you did on any of the other days that you were working inside there?
A. Either that or we were tearing out. I can't say just exactly what we were doing.
Q. The work was pretty much the same each day that you worked in there?
A. Yes, sir.'
Dr. Krueger is a general practitioner in Fort Wayne, Indiana. He first saw the Appellant in regard to the back condition on July 9, 1971. He diagnosed the condition as a lumbo-sacral strain. The Appellant had told the doctor that he had been working in a bent over position for some period of time in a 28-inch space and, after working in the confined area, his low back began paining him rather severely. The doctor testified that working under the conditions reported by Appellant could be the cause of a lumbo-sacral sprain.
On cross-examination, when asked about the onset of Appellant's problems, Dr. Krueger testified:
'Q. Dr. Krueger, I note that in the same letter to which Mr. Webster referred you reported a history taken from the patient...
To continue reading
Request your trial
-
Estey Piano Corp. v. Steffen
...Ind.App. 178, 117 N.E. 555; and must be distinguished from its meaning as used in accident insurance policies. Wolf v. Plibrico Sales & Service Co. (1973, Ind.App., 301 N.E.2d 756; Indiana Creek Coal & Mining Co. v. Calvert (1918), 68 Ind.App. 474, 119 N.E. 519. In The Studebaker Corp. v. J......
-
Lovely v. Cooper Indus. Products, Inc.
...that conclusion even though we might prefer another conclusion equally legitimate. Wolf v. Plibrico Sales and Service & Liberty Mutual Insurance Company, (1973) 158 Ind.App. 111, 301 N.E.2d 756, 304 N.E.2d 355 trans. Lovely cites five cases in support of his contention: Calhoun v. Hillenbra......
-
Bowling v. Fountain County Highway Dept.
...N.E.2d 790, 791; Martinez v. Taylor Forge & Pipe Works (1977), Ind.App., 368 N.E.2d 1176, 1177-78; Wolf v. Plibrico Sales & Service Co. (1973), 158 Ind.App. 111, 122, 301 N.E.2d 756, 763, reh. denied, 158 Ind.App. 127, 304 N.E.2d 355. Determining whether an injury was caused by a work-relat......
-
Donahue v. Youngstown Sheet & Tube Co.
...denied; Martinez v. Taylor Forge & Pipe Works, (1977) 174 Ind.App. 514, 368 N.E.2d 1176, trans. denied; Wolf v. Plibrico Sales & Service Co., (1973) 158 Ind.App. 111, 301 N.E.2d 756, reh. denied, 158 Ind.App. 127, 304 N.E.2d 355, trans. denied. Since the record in the instant case supports ......