Opinion
John J. Dornette, Lawrenceburg, for appellant-plaintiff.
Edward J. Ohleyer, Phillip R. Scaletta, Ice, Miller, Donadios&sRyan, Indianapolis, for appellee-defendant.
LOWDERMILK, Judge.
This case was transferred to this office from the Second District in order to help eliminate the disparity in caseloads among the Districts.
STATEMENT OF THE CASE
Plaintiff-appellant Agatha Calhoun appeals from a final decision of the Full Industrial Board of Indiana (Industrial Board) which denied her application for an award under the Workmen's Compensation Act.
FACTS
The facts most favorable to the decision of the Industrial Board are as follows:
In April, 1976 Calhoun was employed by defendant-appellee Hillenbrand Industries, Inc. On April 2, 1976, while engaged in her normal labor of lifting boxes of parts out of a bin and attaching those parts to table tops, Calhoun started feeling pain in her lower back. Calhoun's supervisor, Carl Moeller, Testified that Calhoun failed to report to him that she had injured her back while working but she did tell him that she wanted to go home early because her back was hurting her. Calhoun worked until noon on April 2, 1976 and then went home. Later that day she went to see Dr. Martinez, a physician. Dr. Martinez told Calhoun that he thought that she had an arthritic condition in her back. Calhoun stated that she was engaged in her normal lifting and assembling labors when the back pain manifested itself.
Calhoun returned to work for about three or four days, but her back pain became so severe that on April 9, 1976 she called Moeller and told him that she would be unable to come to work until her back was better. During the three or four days that she worked between April 2 and April 9 Calhoun told Moeller and a co-worker Rita Holt that her back was hurting because of an arthritic condition.
Calhoun continued to see Dr. Martinez who suggested that she consult an orthopedic specialist. On June 18, 1976 Calhoun went to see Dr. Donald N. Berning, an orthopedic specialist.
After several diagnostic tests and examinations Dr. Berning discovered in December, 1976 that Calhoun had an abnormal enlargement of a disc between two of the lumbar vertebrae and that she had abnormal knee and ankle reflexes. Dr. Berning testified that any kind of bending, lifting, or falling motion where pressure was exerted on the back in a certain way could cause the type of back injury which Calhoun had suffered.
In June, 1976 Calhoun told Dr. Berning that she was not certain whether or not she hurt her back while working, but in January, 1977 she told Dr. Berning that although she was not certain that she hurt her back at work, she did first experience her back pain while doing her lifting duties at work on April 2, 1976. Dr. Berning testified that such lifting could have caused her back injury.
Dr. Berning estimated that Calhoun's injury resulted in a 45% To 50% Permanent partial impairment of her whole body and that Calhoun would never be able to perform an occupation where bending and lifting were required. Dr. John Suelzer examined Calhoun and determined that the permanent partial impairment to her body was 10%.
Based upon the evidence presented in the hearing the Board made the following findings:
"That on April 2, 1976, plaintiff was in the employ of the defendant at an average weekly wage of $162.00.
That plaintiff's normal duties during March and April of 1976 were those of placing table runners on edges of tables; that said runners weighed approximately a half-pound; that in performing said occupation it was necessary for plaintiff to lift the runners out of a bin into a box and when said box was full, weighing approximately twenty to twenty-five pounds, it was necessary for plaintiff to lift the box onto a table approximately waist high; that while performing said occupation her back at sometime became painful.
That from all of the credible evidence there is no specific time or incident that can be pointed to that would cause the pain in plaintiff's back.
Said Full Industrial Board of Indiana finds that plaintiff did not sustain an accident or untoward event arising out of and in the course of her employment."
ISSUE
The issue which has been presented to this court for review is as follows:
1. Was the finding of the Industrial Board that Calhoun did not sustain an accidental injury arising out of and in the course of her employment contrary to law?
DISCUSSION AND DECISION
Calhoun contends that the undisputed evidence shows that the decision of the Industrial Board is contrary to law in that it concluded that Calhoun did not suffer an accidental injury arising out of and in the course of her employment.
To determine whether or not an accidental injury occurred in the case at bar we shall follow the definition of "accident" which was enunciated by this court in Ellis v. Hubbell Metals, Inc. (1977), Ind.App., 366 N.E.2d 207, 211-212, as follows:
". . . In defining the word 'accident' most cases follow the unexpected event theory enunciated in Haskell (and Barker Car Co. v. Brown (1917), 67 Ind.App. 178, 117 N.E. 555) . . . . Certain confusion has arisen from the attempt by the courts to identify the kind of unexpected event which is to be termed an 'accident.'
In defining the unexpected event our courts have utilized two theories: the unexpected cause and the unexpected result. Under the unexpected cause theory an 'accident' cannot occur in the absence of some kind of increased risk or hazard, e. g., a fall, slip, trip, unusual exertion, malfunction of machine, break, collision, etc., which causes an injury. Under the unexpected result theory an 'accident' may occur where everything preceding the injury was normal, and only the injury itself was unexpected, e. g., where a worker bends over, stoops, turns, lifts something, etc., which activity is part of his everyday work duties, and yet, as in the case at bar, he is unexpectedly injured.
We shall use the unexpected result theory in determining whether an accident occurred in the case at bar, because the unexpected result theory is more in keeping with the humanitarian purposes that underlie the Workmen's Compensation Act, which the courts are required to liberally construe in favor of the worker. . . . " (Original Emphasis) (Our Insert) (Footnotes omitted)
The Industrial Board admits in its findings that at sometime, while she was engaged in her normal work duties of bending, lifting, and assembling, Calhoun's back began to hurt. This finding gives rise to two reasonable inferences, that is, either Calhoun's back was injured while she was performing her normal work duties on the day which the pain commenced or her back injury was attributable to the gradual wear and tear from bending and lifting during the performance of her normal work duties and it manifested itself on the day the pain commenced.
No reasonable man could find that Calhoun, while at work, did not experience back pain on April 2, 1976 in that she testified that her back pain had commenced that day, she told her supervisor that she had back pain, she left work early that day and consulted a doctor, and she later showed objective symptoms of back injury. The Industrial Board has the right to disbelieve a claimant's testimony, but where other credible evidence exists which supports the claimant's testimony and no credible evidence is presented which would conflict with the claimant's testimony, then the Industrial Board cannot capriciously disregard the claimant's testimony. It is clear then that on April 2, 1976 either Calhoun injured her back while performing her normal work duties or a back injury of gradual development manifested itself on that day.
See Wilson v. Chevrolet Commercial Body (1977), Ind.App., 367 N.E.2d 11.
If, indeed, Calhoun injured her back on April 2, 1976 while performing her normal work duties she would be entitled to compensation for such injury under the unexpected result theory espoused in Ellis v. Hubbell Metals, Inc., supra. See also Studebaker Corp. v. Jones (1937), 104 Ind.App. 270, 10 N.E.2d 747. If, however, her injury was of gradual development and the pain which she experienced on April 2, 1976 was merely a manifestation of a gradually developing injury, she would be entitled to recover under the rules set forth in Rankin v. Industrial Contractors, Inc. (1969), 144 Ind.App. 394, 246 N.E.2d 410, and Wolf v. Plibrico Saless&sService Company (1973), 158 Ind.App. 111, 301 N.E.2d 756.
In both Rankin, supra, and Wolf, supra, the claimants were engaged in performing their normal work duties when they began to experience back pain, each claimant went to his own family doctor rather than utilizing his employer's medical facilities, both claimants continued to work after the onset of pain, both of the claimants eventually had to stop working entirely within a few days after the onset of pain because the pain became too severe, and both claimants showed objective symptoms of back injury. In both Rankin, supra, and Wolf, supra, the Industrial Board denied Workmen's Compensation benefits to the claimants, and in both cases this court reversed the decision of the Industrial Board.
Rankin was driving a truck over large ruts in the road which jarred his back and Wolf was in a crawling position repairing an industrial furnace, when back injuries developed over a period of time from constant jolting in Rankin's case and constant bending, crouching, and crawling in Wolf's case.
On pages 763-764 of 301 N.E.2d this court reasoned in Wolf, supra, as follows:
". . . A compensation claimant has the burden to prove that he was injured as a result of an 'accident,' and it is not necessary that the employer show that a negative award is supported by a preponderance of the evidence. Lincoln v. Whirlpool Corp., 151 Ind.App. 190, 279 N.E.2d 596 (1972). . . .
This court is required to disregard all evidence which is unfavorable to the findings of the Board and consider only those facts and those reasonable inferences which support such findings. Pittsburgh Testing Laboratories v. Kiel, 130 Ind.App. 598, 167 N.E.2d 604 (1960); Lincoln v. Whirlpool Corp., supra. Further, if the Industrial Board, in determining the ultimate facts, reaches a legitimate conclusion from the evidential facts, this court cannot disturb that conclusion, even though it might prefer another conclusion equally legitimate. Lasear, Inc. v. Anderson et al., 99 Ind.App. 428, 433, 192 N.E. 762 (1934); C.s&sE. Trucking Corporation v. Stahl, 135 Ind.App. 600, 181 N.E.2d 21 (1962).
The word 'accident' as used in the law of workmen's compensation must be distinguished from its meaning as used in accident insurance policies. Indiana (sic) Creek Coals&sMining Co. v. Calvert, 68 Ind.App. 474, 119 N.E. 519 (1918). The first Indiana case in which this court appears to have adopted a specific meaning is Haskell and Barker Car Co. v. Brown, 67 Ind.App. 178, 117 N.E. 555 (1917), in which it was stated:
'The word "accident" in the act in question is used in its popular sense, and means "any unlooked for mishap or untoward event not expected or designed." '
Such definition has persisted to this date and has been cited in numerous cases, although the standard as to the type of mishap or event has been broadened. Dean Small reviews the earlier cases and says there was a time when the courts were inclined to view an accident 'as some sort of sudden traumatic violence, and an injury as the result of the consequence thereof.' Small, Workmen's Compensation Law of Indiana, Section 5.2, p. 99 (1950). While the standard has been broadened, this Court has not gone so far as to adopt the rule that, if a claimant worked for the employer during the period of his life in which his disability arose, that is sufficient to sustain the burden of proof as to the occurrence of the accident within the meaning of the Act. George v. Interstate Metal Products, 125 Ind.App. 406, 126 N.E.2d 258 (1955). In George, this Court reviewed the earlier case of Indiana (sic) Creek Coals&sMining Co. v. Calvert, supra, and stated at 126 N.E.2d 258, 260:
'We do not interpret that case as in any sense abandoning the well-known rule that in order to show an accident there must be some untoward or unexpected event.'
As Mr. Segar has correctly concluded in his 1968 Supplement to Small, there still must occur an event:
'In passing, however, it should be noted that the Court still requires some untoward or unexpected event, however unspectacular it may be. . . .' Small (Segar), Supplement, Section 5.1, p. 33. Dean Small observed that, by far, the greater number of injuries and deaths as a result of industrial accidents are occasioned by trauma. But he further observes that internal exertion or strain can lay the basis for an accidental injury equally as well as external trauma. . . . " (Our inserts)
In Rankin, supra, at 144 Ind.App. pages 399, 400, and 402, at 246 N.E.2d pages 413 and 414, this court stated the following:
"We conclude that the evidence in this case was not in conflict in any real sense. It appears that this evidence, together with all reasonable inferences which could be drawn thereof, supports the conclusion that the injury to the plaintiff was in the course of his employment. In reading the Appellee's brief, it appears that the Appellee would require the claimant in a workman's compensation case to negative the possibility of any other cause for claimant's disability. We do not think this is the law.
In Tom Joyce 7 Up Company v. Layman, 112 Ind.App. 369, 374, 44 N.E.2d 998, 1000 (1942), this court stated:
'Generally an accident may be said to arise out of the employment, where there is a causal connection between it and a performance of some service of the employment. Causal relation is established when the accident arises out of a risk which a reasonably prudent person might comprehend as incidental to the employment at the time of entering into it, or when the facts show an incidental connection between the conditions under which the employee works and the injury.'
The uncontradicted facts in this case are squarely within the principles announced by this court. In American Maize Products Co. v. Nichiporchik, 108 Ind.App. 502, 511, 29 N.E.2d 801, 805 (1940), this court stated:
'While it is true that the Appellee can point to no particular date nor to any particular blow which produced the resulting injury, yet it is not necessary that the accident occurred at any particular or specific time. The series of blows to Appellee's hands produced the injury and loss which was an unintended and unexpected occurrence.' "
In the case at bar we find the reasoning and holdings in Rankin,supra, and Wolf, supra, to be controlling, and in that the evidence in a light most favorable to Hillenbrand shows that Calhoun suffered an accidental injury arising out of and in the course of her employment we find the decision of the Industrial Board to be contrary to law.
The award of the Industrial Board is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
LYBROOK, P. J., and ROBERTSON, J., concur.