Yarbrough v. Polar Ice & Fuel Co.

• Decision Date: 24 May 1948
• Docket Number: 17749.
• Citation: 79 N.E.2d 422,118 Ind.App. 321
• Court: Indiana Appellate Court
• Parties: YARBROUGH v. POLAR ICE & FUEL CO.

79 N.E.2d 422

118 Ind.App. 321

YARBROUGH v. POLAR ICE & FUEL CO.

No. 17749.

Appellate Court of Indiana, in Banc.

May 24, 1948

Proceeding before the Industrial Board by Willard M. Yarbrough, claimant against Polar Ice & Fuel Company, employer to recover compensation for time lost and medical expenses incurred by reason of a second accident and its resulting injuries. From an award for the employer the claimant appeals.

Award affirmed.

Morton and Tumbove and Thomas C. Tumbove, all of Indianapolis, for appellant.

Murray Mannon, Fairchild & Stewart, of Indianapolis, for appellee.

CRUMPACKER Judge.

The facts in this case are undisputed and in substance are as follows: On the 10th day of December, 1945, the appellant Willard M. Yarbrough was in the employ of the appellee Polar Ice & Fuel Company and on said day he sustained an injury to his right knee through an accident arising out of and in the course of his employment. As a result thereof he was temporarily totally disabled up to and including January 20, 1946, during which time the appellee paid him compensation under an agreement duly approved by the Industrial Board. Although his knee was still stiff, sore and swollen and, as a result of said accident, was weak and uncertain, he returned to work on January 24, 1946, and worked steadily every work day through June 14, 1946. During this period he fell down several times because his injured knee, due to its weakened condition, suddenly gave way. Upon returning to his home after work, in the late afternoon of June 14, 1946, he attempted to carry an armload of trash down the stair leading to the basement when his right knee again gave way and he fell the length of said stairs striking his head against a drain pipe with such force that his jaw was fractured. He neither slipped, stumbled nor tripped over anything preliminary to this fall. His right knee merely gave way as it had done on previous occasions and the injury thereto was in no way aggravated by this fall. Due to his broken jaw the appellant was totally disabled from June 14, 1946, to the last week in October, 1946, when he returned to his old job with the appellee. In the meantime the condition of his right leg had not improved and his foreman sent him to a doctor employed by the appellee who operated on his knee and the appellee then resumed the payment of compensation for the leg injury but refused to concede liability for the broken jaw. The appellant thereupon brought the present action which is concerned solely with his right to compensation for time lost and medical expenses incurred by reason of the second accident and its resulting injury.

The appellant insisted below and contends here that the law applicable to the facts as heretofore stated, concerning which there is no dispute, compels an award in his favor as a matter of law. The Industrial Board concluded otherwise and found 'that the injury that the plaintiff sustained on June 14, 1946, was not due to, nor did it have any causal connection with, the said accidental injury on December 10, 1945' and entered an award accordingly.

It seems to be well settled that a subsequent incident or accident which results in a new, different or additional injury is compensable if it is of such nature and occurs under such circumstances that it can be considered as the proximate and natural result of the original injury. Marshall v. City of Pittsburgh, 1935, 119 Pa.Super 189, 180 A. 733; Continental Casualty Co. v. Ind. Comm of Utah, 1930, 75 Utah 220, 284 P. 313; Chiodo v Newhall Co., 1930, 254 N.Y. 534, 173 N.E. 854; Hartnett v. Tripp, 1918, 231 Mass. 382, 121 N.E. 17; Phillips v. Industrial Commission, 1944, 75 Ohio App. 131, 61 N.E.2d 233; Gallagher v. Hudson Coal Co., 1935, 117 Pa.Super. 480, 178 A. 161; and Wallace v. Ludwig, 1935, 292 Mass. 251, 198 N.E. 159, in which the subject of double injuries is reviewed. Although not concerned with a second or subsequent accident this court said in United Paperboard Co. v. Lewis, 1917, 65 Ind.App. 356, 117 N.E. 276, 278: 'It is well settled that where the primary...