*1 Employers Corporation, Mutual Wausau Piano Hilda B. Steffen. Rehearing 1975.] June May denied Filed 2-873A190. [No. Yoder, Thomas Murphy, Jr., Livingston, W. L. Edward Haynie Dildine, Yoder, Wayne, appellants. of Fort *2 L. Larson, Eggers James Jackson, Parrish, Larson, of Wayne, Fort appellee. for Appellant, Estey (Es Corporation Piano
Sullivan, P.J. tey) , appeals from an award favor the Industrial Board in appellee, (Steffen). B. Hilda Steffen
The facts most favorable Steffen to the Board’s de- and cision follows: 1959, sanding Estey
Since Steffen has various worked for piano parts by early 1969, hand and machine. In October occasionally requested by job Steffen was foreman to sand “keybeds” (also “keyboards”) referred to in the record as that portion piano which is upon placed which are keys. piano “keybed” weigh ap- The Board found each proximately sanding pounds Steffen’s duties of “keybeds” duty constituted routine work from time time prior in the one one-half period month Novem- 26,1969. ber 13, 1969, family
On physician, October Steffen her consulted Panos, regarding stipulated Dr. a back ailment. letter a evidence, diagnosed into Dr. Panos stated that he had ail- probable ment syndrome.” as “acute lumbar strain with ‘disc’ days later, per- Steffen work three or returned to four until 26, formed all duties November On 1969, Steffen, lifting a keybed, November while suffered “sudden, sharp pain” back, a the hip right down leg. 9, 1969, On December hospitalized Steffen was a for ruptured lumbar pain right disc with nerve root leg. down the surgery performed removing A Bossard ruptured Dr. disc. He quiescent testified Steffen’s condition had reached a twenty-five percent permanent partial state with impairment. August Application filed Form Steffen on 1970, and, single following hearing, member was awarded benefits. Estey hearing requested, granted, and was the full Indus trial which, 27, 1972, original on June affirmed the findings award. This court has twice ordered the Board’s made specific.1 18, 1974, more On November the Board Cer filed a tification of a Corrected Award. The essen Corrected Award tially aggravated found pre that Steffen did not suffer from an existing injury; usual, that she was performing normal, her when, and routine duties experienced November she sharp pain lifting sudden and keyboard; keyboard act of and the sudden and untoward was an arising accidental out of and in the course Estey. her Further, the Board found weight keyboard (27 pounds) sufficient “constituted extra or causing unusual exertion ruptured disc.” 17, 1974,
On December filed a brief directed to Corrected Award of November in which the fol- lowing issues were asserted:
1. The injury evidence is insufficient to show that Steffen’s arising resulted from an employment. accident out of the findings The testimony given predicated are expert opinion on response hypothetical in questions
which did not assume correct facts.
I EVIDENCE ESTABLISHES “ACCIDENT” WITHIN
MEANING OF THE ACT Estey contends that Steffen has shown no “accident” within meaning compensation of the act because the evidence does unexpected not an show “slip, “untoward event” such as a trip unexpected event.” parameters compensibility of are set forth in Ind. Ann. (Burns 1974)
Stat.
22-3-2-2
personal
Code Ed.
as “.
. .
§
by
1. The Board’s decision was reversed and the cause remanded
opinion
May 11,
(Estey
Corporation
written
1973
Piano
v. Steffen
855);
23,
Ind.
1974,
N.E.2d
and on October
in
appeal,
findings.
specific
we
more
ordered
arising
in
by
out of and
injury
accident
or death
“ac
employment.
.” The term
. .
course
event
“mishap or untoward
imports some
cident”
Barker
designed”,
Car Co.
Haskell
expected
555;
be
and must
117 N.E.
Brown
meaning
accident insurance
in
distinguished
its
as used
from
(1973), 158
Co.
Plibrico Sales
Service
policies.
v.Wolf
Mining
756; Indian
Coal &
Creek
App. 474,
243
Corp.
Co., supra; v. Plibrico
& Service
Studebaker
Sales
(1934),
Jones, supra;
Morgan Packing
Monroe
Co. v.
causation,
Ancillary
such as
A concomitant the existence of requires and in course arise that such accident out Joyce 7-Up Layman employment. Tom Co. essence, Estey, in App. 998.
112 Ind. findings they conclude insofar as contests the Board’s employment. gen It is out of her arose Steffen’s erally that an arises out of when held accident complained nexus between the there exists some causal Joyce 7-Up performed. Tom or services Com of and the duties Lasear, Layman, pany supra; Inc. v. Anderson Lasear, Anderson, Inc. N.E. 762. In explained: supra, the court out relation is the accident arises “Causal established when reasonably prudent person of a com- risk which prehend the time as incidental it, entering or, con- facts show an incidental into when employee the conditions under
nection between injury.” works and the at 434. upon prove It the causal is therefore incumbent claimant probative But relationship substantial evidence of value. negate the act need not claimant benefits under disability. possible all other for the Rankin causes Contractors, v. Industrial Inc. supports finding that Steffen of record evidence pound piano accidental
sustained an a 27 performance keybed occasional, yet routine, normal or her This establishes entitlement duties. to workmen’s compensation benefit under act. finding weight contests further *5 keybed extra Steffen lifted sufficient which “constituted asserts, finding,
or unusual exertion.” This finding contradicts the the November that aggravation not pre-existing accident was an of a However, or condition. such back this court has held adjectives disregarded.” “surplusage, may to be which be Slaubaugh App. 497, Vore Small, Compensation 299. See also 6.2 Law § (1968 Compare Supp.). Dykes U.S. Steel 599, 154 N.E.2d 111. say it
Even if accurate prop- be to that the case was erly Douglas in construed Borg Warner Gear Div. Warner Corp. (1961), App. 664, that and Dykes holding nullifies to some extent the rationale Slaubaugh, it be likewise accurate to state such dissipated only rationale is in “heart other attack” cases or in situations causally in which the cannot be attributed employment. Douglas The Court in stated: “We feel Supreme more restful that the Court view Dykes case, supra, very modify in the some materially said did expressions of the statements in Slau- and the said baugh Douglas cases, seemingly supra, and while and considering necessary it to result said alter the arrived inat theory cases, gradual depart encroaching did from the generally expressed implied previous in cases said compensation arising cases that claims for from afflictions employees gauged the heart of a of a were to be standard rigidity applied less than that claims different words, impressed nature. In other we said Dykes case, Supreme our Court annulled idea taking employee
was then sustained a performance hold that fact that the mere an crippling or fatal heart attack while in ordinary employ- usual tasks of his finding by ment was sufficient an sustain arising accident employment, out of and of his in the course compensable. Court, rather, it us, original seems to returned concept in the Workmen’s cases that render a claim such compensable under circumstances there must be established causal connection between em- ployment ensuing conditions of the Dykes case, supra, an- Court, heart failure. The in said it, a com- substance, that to establish nounced seewe right merely em- pensable it must shown not be ployee usual performing heart tasks but his suffered attack everyday must routine there be shown beyond happening ‘event or Broadly, conditions of the the mere itself.’ employment, that it must be shown that the or the employment, some been, must have way, proximate vation of or heart.” 131 Ind. to, aggra- for, accountable conducive of, hastening activity failure 672-673. us, however, “lifting” The case before *6 is a case. Slaubaugh “causal emphasized connection” factors in retain vitality application despite in such the fact cases easily “bending” those factors are applied cases mere [Dooley App. Richard’s (1969), Standard Service Anderson 449; City 251 N.E.2d (1962), Borton or heart attack Lock- cases. 904] Inc. v. Brown Co., Joint Tube happening beyond
will not disturb where the “evi fairly support findings dence tends con board”, Trucking clusions reached & E. C. v. Stahl Corp. 21; Co. v. Celotto Equipment Indiana Car 834; weigh nor 121 N.E. the court appeal will on evidence, conflicting The supra. Studebaker Jones, II.
FAILURE TO OBJECT TO FORM HYPOTHETICAL OF QUESTIONS APPELLATE CONSIDERATION WAIVES
Estey pro complains hypothetical questions of certain pounded deposition. Estey to Dr. Bossard in an oral asserts justified by questions
that such were not in evi facts However, questions objected dence. were not taking at single deposition, at the hearing, hearing member before Full Board. It is objection hypothetical fundamental questions cannot be initially appeal, asserted on object timely failure to appellate forecloses Slaubaugh supra. consideration. Vore, hereby award of the Industrial is affirmed, pursuant (Burns to Ind. Ann. 1974) Stat. 22-3-4-8 Code Ed. said award ordered increased percent (10%). ten
White, J., result; concurs Buchanan, J., concurs with opinion.
Concurring Opinion Buchanan, compelled I am only J. to concur in the result in this case for two reasons:
(1) specific Finding Board made a Fact
weight keyboard plaintiff which the lifted *7 26, 1969, November “constituted sufficient or extra unusual exertion” result injury”. to in “an accidental (2) Appellate Appeals Certain and Court of cases are con
trary Corp. to the rationale of U.S. Steel v. (1958), 599, 154 238 Ind. N.E.2d 111. 1974, Findings 18,
The November appear of Fact in- to be citing “regular consistent. After that Steffen’s and routine handling duties” pianos consisted various parts of for sanding purposes “performing she normal, was her common, routine usual and duties” 26, on November when she experienced “sudden pain a and untoward back”, in her lifting keyboards that “the the part normal, was of her routine usual and duties her employer”, the then
247 lifted plaintiff keyboard the weight which finds that unusual extra sufficient 26, “constituted on November 1969 testimony there is injury. And exertion” to her cause finding. supports this which Steffen to reliance on holding
Accordingly, our
should
limited
be
(1937),
holding
104
Jones
in
Studebaker
“lifting”
747,
App. 270,
a similar
case.1
10 N.E.2d
suffering from
(Neither Jones nor
found
be
Steffen were
to
condition.)
pre-existing back
cases,2
Appellate
Appeals
like
other
and Court of
But
some
language
Corp. seemingly
in Studebaker
eliminates
used
necessity of an “accident”:
“
essential
amount
it
determine the
and extent
[N]
strain, effort,
necessary
expended
exertion
be
of
as a
compensable
legal
injury.
All workmen
cause for
stronger
alike. Some are
than others
are
and more
more exertion
and
constituted
doing
capable of
same
work. Some
use
would
labor,
performing
or more effort
same
physical
of their
because
condition
more
be
Jones, together
employees,
polish-
with
other
1.
three
had the task of
conveyor
ing
required
lifting
on a
automobile hoods
line
turning
history
any
day
He had
hoods.
no
illness. On the
two of the four men were absent
the accident
which caused Jones
employee
unusually
lifting
other
automobile
exert
While
themselves.
one
hoods,
“felt
.”
Jones
his left
.
side. .
Court, affirming
Award,
This
Industrial
noted
Jones
collapsed lung .
.”
suffered a
.
as
result of “the
“had
exertion
strain and
particular
lifting
hood. . . .”
The Court concluded:
conveyor undoubtedly required
act of
hoods
“The
physical effort and
which the
some
exertion
board found contributed
injury complained
compensable,
of and is
. .
his
.
. . .
(that
lifting)
was attached to a
employment
occurrence
definite
incidental
meaning
and within the
to his
well-defined
of the term
App.
‘accident’
used
Act.”
276,
248
susceptible
injury.
hoods
act
to the
conveyor undoubtedly required
physical
some
effort
exertion which the
injury
board
to the
contributed
found
complained
slight.
compensable,
and is
(Em-
however
phasis suplied.)
275-76,
at
progressing naturally as it would have done under conditions, aggravating accelerating injury, but the its progress, materially culmination contributes to hasten its disability death, there be under an award compensation 128, 521. acts.’ In re Bowers 480-81, N.E. 842.” at 119 N.E. at my opinion In Co., Mining Indian Creek Coal it, contrary Dykes cases be followed and should any unexpected effect, overruled. an acci- becomes injury. dental language appears
Such to transform the Com- pensation super allowing Act policy into a insurance com- pensation contrary case, rationale Supreme pronouncement most recent Court’s what Judge closing paragraph constitutes “accident”. Bobbitt’s reads: there was no ment routine “ [7] establish itself.” everyday mere event right task showing when to workmen’s happening beyond that he was he suffered a heart attack does compensation performing the mere his usual employ- because Segar
Geoffrey requirement summarizes the “accident” Supplement Cumulative to Small’s Workmen’s Com- pensation Law Indiana: requires . . still “. t should be noted the Court [I] unexpected event, so that the some untoward or ... mere *9 being disability employed of will
fact at the time arose not suffice.” regular ordinary “Usual and activity sweeping, such as shoveling coal, opening milking regular door, a rail car the cows, carrying grain flight of up door have of stairs non-compensable affirming been held as in awards such findings. [Campbell Industrial Board Colgate Palmolive (1962), App. 160; 45, Co. 134 Ind. Douglas 184 N.E.2d 584; Warner (1961), App. Gear 131 Ind. 174 N.E.2d
Blevins (1959),
Ice
Consumers
& Fuel Co.
129 Ind.
v. Concrete
103;
Bundy
Ready
Co.
Mix
(1960),
477;
130 Ind.
167 N.E.2d
Arford
State
of
v. Indiana Gas & Chem.
Shaffer
App. 471, 209
98g,
N.E.2d 919: footnotes 98b to
inclusive.]
(Emphasis supplied.)
6.2, pp.
(Cum.
Secs. 5.1 and
Supp.1968).
City
see
Also
Anderson Borton
of
684,
In addition to with the in some Appellate Appeals dispensing and Court of cases apparently accident, with the need for unnecessary an I also find it distinguish bending heart attack and cases from cases. Dykes applies rationale of in either event. 3. “In view of the that is no fact there conflict in the con- evidence cerning performance bending act trap of the of over to door lift pain occurred, nothing unexpected any when the and since there was nor incident, unusual exertion connected with this with no conflict in appellee’s degenerated the to a back evidence that had since his first point damage might merely where and further occur walking person, opinion act of about as a normal we of that prove any evidence was insufficient to that the occurred because of any in his increase work load of extra exertion. We are also of opinion any that prove there was a lack evidence to the act of bending trap anything over to lift a door appellee’s was so unusual customary aggravation work as to previously cause existing of a de- generated back. “Following present thinking Supreme of the Court its view of holding Dykes case, supra, logical only it seems that the conclusion which reasonable men could reach from case, the evidence in this with reasonably all inferences therefrom, appellee deductible did suffer as a result employment. of and in the course of his foregoing reasons, “For the award of the Industrial con- trary to law and must be reversed.” arising interpreting
My analysis an “accident cases employment” leads me to in the course out has elasticized been “accident”4 the word conclusion of em breaking for extension the search point. injuries, the law liability accident-connected ployer’s conflicting hopelessly . . . subject and confused has become original gone beyond intent appear far to have and would ap It Act. the Workmen’s of the framers of consistently has limited me that been pears to Appeals that clarifica Court Appellate Court and the tion is order. history away is the dust bin dissent
Hidden forecasting accurately Judge in Indian Creek Dausman legislation equated judicial normal exertion results said: “accident.” He with *10 shoveling way, was coal in the usual the deceased “While by activity accompanied was the while his muscular
and natural it had been thinned the pressure, normal blood aorta burst because and by There is a weakened disease. death, the direct causal connection between disease and the of “accident” in terms 4. Professor Small summarizes the definition by large have followed this an unforeseeable result the cases of tack: compensation lay ground giving may the the of if “[An accident] at results action were not the time.” forseeable requires only interpreted, a claimant “. . . the statute [§ 40-1202] So accidentally injury . . . If he can to show his was sustained. that reasonably foreseeable, was not it sustained that is show accidentally.” (Emphasis supplied.) [Footnotes omitted.] INDIANA, 5.2, Small, LAW WORKMEN’S COMPENSATION OF 1950). (First pp. Ed. 99-100 Calvert, Mining supra: v. also Indian Creek Coal Co. See produce enough . . that causes . should result which on is “[I]t expected. designed particular nor is neither The test as occasion ‘by unexpected . . . occurs accident’ is whether particu- expect intend or would on that the sufferer did not doing.” lar occasion from what he was at 492. result also, See Car, Weirick, supra; Morgan etc. Packing American Tank General Monroe, supra; Corp. Jones, supra; The Studebaker v.Co. American Nichitorchick, supra; Slaubaugh Vore, supra; Products Co. Maize Douglas, al., supra; et Co., U S. Steel Lock-Joint Tube Inc. v. Brown, supra; Aue, supra; Larson, Anaconda Aluminum Co. v. THE COMPENSATION, supra. LAW OF WORKMEN’S I am by idea death accident. ... and that excludes the his compelled came to the conclusion that deceased majority disease, by by . . .” death accident. [The validity testimony that recognized opinion of medical “chronic may have been due to Calvert’s diseased aorta alcoholism”.]
[*] [*] [*] opinion law majority effect of the is to extend “[T]he . . by judicial insurance. . construction to include also life every awarding compensation case of It will result death any failure, apoplexy, by heart or other disease death whatsoever, kind on the mere statement by normal ‘strain and and have been accelerated work; exertion’ of the exertion’ usual for that ‘strain deceased’s by aliuays bring exists. To about such a result judicial palpable province is a construction invasion legislation.” (Emphasis supplied.) App. at 506-7, 509, 119 at N.E. Thus, appear liberally construing it would Act the word “accident” almost has part least, been construed out of existence. In this is due presence injuries disease as a factor in industrial . . . may may disease which not be related. legislation awarding compensation Until there no was liability continually expanded for industrial diseases and was today Appellate fiat. Court Even the schedule of com- Occupational pensable diseases Disease Act is limited lawyers precedents and the courts and the hark back to prior adoption Occupational date Disease effect, physical Act. disease abnormal condition may compensated not be have related been *11 injuries”. as “accidental
Thus, I forced to concur in am the result of this case because bring strictly not it facts do within holding its Dykes, deciding that case, Slaubaugh and because v. Vore 110 N.E.2d and U.S. Steel Corp. Douglas, al. et 123 N.E.2d were cases, both unusual or extreme exertion disapproved distinguished. but were were either Until Supreme Court redefines legislature the Indiana acts or “accident”, course. I see no other 240. Note.—Reported at Jerry L. Jones State Indiana. May 22, 1975.] Filed 2-174A17.
[No. Koch, Indianapolis, appellant. Theodore M. for Attorney Colker, Sendak, General, L. Robert F. Theodore Attorney General, appellee. Assistant The only presented Per Curiam issue for review appeal is whether the evidence is sufficient to Jerry sustain L. robbery1 fleeing police Jones’s convictions of officer.2 1971, 35-13-4-6, (Burns 1956). 1. IC Ind. Ann. Stat. §10-4101 1971, 35-21-2-1, 1974). (Burns Supp., IC Ind. Ann. Stat. 10-1817