*1 is well It established this court will not reverse finding supported of the lower court if it is some evidence. Appellee
The evidence most favorable revealed equipment 2. that of the specially some hauling put, i.e., built for the use to which it was transportation dead carcasses of animals and that animals, source, of these from whatever to the treatment indispensable prerequisite production facilities was an light unambiguous the feed. this evidence and sta- say justified we cannot tute trial court was not finding equipment tangible personal that the were trucks production property used in of food and commodities meaning exempting within statute.
Judgment affirmed.
Pfaff, Hoffman, J., C. J. concur. J.,
White, participating. Reported 2dE. 409. Note. — Contractors, Rankin Inc. Industrial Rehearing April 17, 868A137. denied Filed 1969. June 1969. [No. 24, 1969.] Transfer denied October
395. *2 Sidney Berger, Cox, Evansville, appellant. John L. C. for Hahn, Evansville, Bamberger, Foreman, Robert H. Hahn, counsel, Evansville, appellee. Oswald appeal from award Full J. This is Sharp, *3 denying compensation Appel- Board Indiana Industrial to Timothy lant, Eankin.
Appellant for filed claim under his benefits the Indiana Compensation 9, on Form Act No. Workmen’s wherein he 8, 1966, permanently he stated that on March was rendered totally a and disabled as result an accident al- which legedly employment out of and in arose course his with Appellee. Hearing single had was before a member Board, Appellant against for Industrial who found and Appellee Appellee appealed on his claim. the award of single Board, member Full to the Industrial the Full and single Board reversed'the award of the member. It is from appeal taken, the award of the Full that Appel- Board assigning lant as error that the award of the Full Board contrary to law. by The sole issue for determination court is whether showing supported there is by such a that the award is not probative compel value will as us to hold finding as a matter of law that the of the Full Board upon does not foundation rest a of fact. Appellant employed by
The evidence discloses that was engineer Appellee operating ques- anas and of the date as in operating had a tion been fork lift truck for two or three days job specific Appellant a job site. testified that required by delivery that he the truck over drive ruts left occurring jolts a trucks and developed result he leg. a back and left his (Appellee’s) A,
Defendant’s Exhibit which letter writ- Ploch, chiropractor, one Dr. ten James C. to The Aetna Casualty Surety Company, 10, discloses on March 1966, Appellant to treatment, went Dr. for said Ploch complaining bothering that his lower back him. After failing respond treatment, suggested to hospitali- Dr. Ploch zation. Appellant pre- Said exhibit also discloses had viously, gone 13, 1964, profes- on November to Dr. Ploch for backache, sional after services ten treatments was February 27,1965. released on Appellant
Dr. William C. Fisher examined the and the part report May 1966, essential dated is as follows: respect to the or “With whether re- jolting peated riding reason of a fork vibrations lift problem, only can could cause the truck stated spiral joints everyday use of the results in similar since jolting they can in due course re- since vibrations discs, subsequent collapse of the it would not seem sult riding prolonged truck in said could re- unreasonable in said condition.” sult on direct C. Fisher testified examination William
Dr. March, Appellant for treatment referred him *4 per- Leibundguth operation Henry Dr. remedy 30, 1966, to a herniated Appellant March formed on fifth lumbar vertebrae fourth and vertebral disc between left On cross-examination Dr. Fisher on the side. testified as follows: just
“Q. you, Doctor, asked last as to whether riding jolting tractor could condition, you I and believe could his said caused opinion: history you your on the in That is based have have respect you to what here with he told at that right? time. Is that Yes. “A. long period riding
“Q. tractor, a Now, on in how this given your opinion, this man’s in order to would it take have been particular history, injury? to cause this period it have be sustained Would time? could, think, happen during No, It I I believe so. “A. don’t period very of time. I think brief this should be a clarified so any opinion about as this. “Q. part, opinion, in your based fact that he had Is history prior of a back condition? aggravation probably Yes, type “A. this was people difficulty. ing who are We see over brush- they all develop their teeth and sudden will leg; people walking along the back and we see in step down off the curb and street all a sud- leg; pain develop any den have so of these things little, are two or three minor incidents —which —precipitate problem, and most them we ob- history having previous So, think, tain I backache. matter, believe, to be far I clear as as what I say aggravation. would would be an “Q. your prior Doctor, patient, history that was taken from the you have, specific was the area of this difficulty prior you mentioned? Can tell me what that was, the location in his back? spine, “A. It the lumbar level of his understood it, spine; my the same area but it is understand- ing any previous leg trouble, that he had not pain. had “Q. Now, previous leg if he had not had trouble at all side, difficulty on either back; he had with his would your opinion riding still be that on this tractor condition, you caused onset found him you operated? riding when of the tractor a short period of time could cause it?
399. *5 My conception problem: having “A. on this he was when having previously, progressive back trouble he was de- generative changes joint. going This was and this was what he was treated for Dr. Ploch. Then, developed leg pain when he in his what- —from riding ever cause: lift, on a mower or it whatever collapsed was—this was the time the that disc slipped it and, slipped out side, the side when it out the leg. hit the nerve and he had So this is part a new of the same condition.” In an earlier case our court in Standard Cabinet Co. v. Landgrave, App. 593, 596, 76 Ind. (1921), 132 N. 661 E. stated: “It repeatedly has been this Court the held words, ‘by arising accident out of and in the course of em- ployment Compensation as used in the Workmen’s Act’, with liberally harmony should be construed and purpose Act, the humane and that the
word ‘accident’
mishap
means an unlooked for
or untoward
event,
expected
designed.”
also,
See
Publishing
Marshall v. Tribune-Star
Co., 251 Ind.
557, N. E.
Appellate
2d 761
opinion,
for
Court
App. 556,
see 142
(1968).
We conclude the evidence in case was not in con- any flict in appears evidence, real together sense. It that this
with all reasonable inferences which could be drawn thereof, supports the conclusion plaintiff employment. was in the course of his reading In Appellee’s brief, appears Appellee require would compensation claimant a workman’s negative case possibility other cause claim- disability. ant’s We do not think this law.
' Co., v. Anderson of Steele case E. 133 N. this court stated: injury, recognize “We that where accidental further ag- employment
arising out of in the course of the preexisting gravates, or activates accelerates right employee, condition of or is. compensable.” Considering testimony Fisher, supra, of Dr. and favor- escape Appellee, able to the cannot conclusion one resulting aggravation directly there from condition was an employment. could have other causes there been While absolutely Appellant’s injuries, no for the there is proceeding. of other causes in the record of this *6 App. Joyce Up Company Layman, Ind. 112 In Tom 7 v. 369, 998, (1942),. 374, 44 2d court stated: N. E. 1000 “Generally may arise out an accident said
employment, connection between where there ais causal of the em- performance and a service it some ployment. when the Causal relation is established reasonably which a accident out of a risk arises prudent person might comprehend ployment to the em- as incidental entering it, into or when facts at the time under an the conditions show incidental connection between which the employee injury.” and the works Co., effect, Pitman Moore 83 To v. this same see Jeffries App. (1925). 159, 147 E. 919 Ind. N. testimony leads Fisher cross-examination Dr. Appellant’s in-
inescapably back the conclusion employment. jury causally connected with his concept certainly rejected court has Our necessary a causative external or violence wound is Corp. Douglas, 125 Ind. v. factor. See United States Steel (1955). App. 212, 123 E.N. 2d 899 App. Equipment Riggs Co., Inc., 133 Stanley Ind. 92, 178
86, E. 2d this court stated: 766 merely employment is not sufficient show the “[I]t during employment period injury but go claimant further must and show having probative origin injury value had its employment risk connected with the and that flowed from source conse- rational quence.” It our Appellant precisely is belief that what has done required supra. this court Stanley, 405, In Bendix Kolberg, App. Products Div. v. 408, 172 589, N. E. 2d this court stated: “The rule well in Indiana that an settled pre-existing
which hastens or accelerates in- disease firmity compensable to the state disablement though employee’s may made condition have susceptible him injury.” more to the also, Compensation Small, Indiana, See Workmen’s Law of 8.41, page 216. § case, supra,
The Bendix perfectly consistent with an Supreme earlier Indiana Court decision v. Red Heflin Carry Front Stores, Cash 517, 75 N. E. 664 (1947), where the court stated: ago long adopted majority rule, “Indiana that where employee personal afflicted with received a in- disease jury might under such circumstances that he compensation obtained under a Workmen’s Com- pensation Act on account of the had there materially ag- been no disease involved but disease is *7 gravated or resulting injury, accelerated the in disa- bility or occurred, death earlier than would otherwise disability the or death does not from result the disease have, naturally alone as it would done under progressing ordinary conditions, injury, aggravating but the and ac- celerating culmination, award under Ann. St. progress, materially in its contributes to hasten its disability death, may be an there Compensation the Workmen’s Burns’ Act. seg.; et al., 1917, 40-1201 In re Bowers 65 § et App. 128, 133, 134, Ind. 842, 116 N. E. and authorities there cited; Mining Indian Company Creek Coal and v. Calvert 402 709; 519, E. App. 474, N. al., 1918, Ind. 119 N. E. 120 et 68 App. 1918, Spring Company Wolfe, 68 Ind. Bed v.
Puritan 417; Ferguson Company, 1926, 330, Krenz Coal 120 N. v. E. 35; 347, Indiana et al. v. App. N. State 85 Ind. 154 E. of 190; App. 681, Gageby, 1933, 95 184 E. Studebaker Ind. N. Corporation 1937, App. 270, 10 N. E. 2d Jones, v. 747.” Company Brown, 135 Ind. also, v. Lock-Joint Tube
See Lilly, v. 386, E. I. DuPont App. 191 N. E. 110 267, (1948). 226 N. E. Ind. 2d 387 79 undisputed that such facts the conclusion lead to When duty Appellant’s employment it is the arose out of the Industrial court to the decision this reverse Whaley REMC, 139 Ind. See v. Steuben Co. Board. (1966). E. 2d 435 221 N. squarely within case are The uncontradicted facts Maize In American principles this court. announced App. 511, 502, 29 Nichiporchik, 108 Products v. Ind. Co. N. E. 2d 805 court stated: point par- Appellee to no can “While true it is produced any particular blow which ticular the nor to date necessary resulting injury, yet it the acci- specific particular or time. The dent occurred series at Appellee’s loss produced blows hands and'unexpected occurrence.” which was an unintended contrary decision the Industrial Board is The Landgrave, supra. Company v. statement Standard Cabinet heavily City Appellee Anderson case The relies (1961). Borton, App. N. 904 178 E. 2d merely the claimant “reached that case was that evidence in injury. experienced a back The contrast between over” and City demon- case instant one is Anderson page App., page 909 of E. of 132 Ind. strated 2d, court where this stated: no conflict in the there is evi- “In fact that view concerning performance of the act
dence *8 over trap to lift the pain door when occurred, and since nothing there unexpected was any nor unusual exertion connected with this incident and with no conflict in the appellee’s evidence that degenerated back had since his first point to a damage might where and further merely by occur walking per- act about as normal son, we are opinion the evidence was insuffi- prove cient to any occurred because in- crease in work any load or of extra We are exertion. opinion also of the there was a lack of prove to that the act of trap over lift door anything cause appellee’s so unusual customary work as to aggravation previously of a existing degenerated back.” precisely type there of evidence this case wanting City case, supra.
court found Anderson scope by unmindful of the limited review We are not Notwithstanding findings. this, Board court of Industrial manifestly is con- decision in this case Industrial Board’s Compensa- spirit trary of the Workmen’s to the letter tion Act. Full Industrial Board therefore re-
The decision of versed. hereby Board instructed to reinstate
The Full Industrial Hearing Member Eichard. Pile as the deci- decision G. sion of Full Industrial Board and enter an award thereon Appellant. favor Appellee. Eeversed. Cost v. P.J.,
Lowdermilk, Cooper, Carson, White, Sullivan and J., J. concur. C.J.,
Pfaff, opinion Hoffman, J., with dissents in which concurs. Opinion
Dissenting Pfaff, J. I find that am unable to concur in the ma- jority opinion Judge Sharp. written recent On several opportunity re-examine had the this court has
occasions Compensation Act and the Indiana Workmen’s re-assess questioning awards thereunder the decisions cases appeals questions presented these Industrial Board. The judges divergence produced opinion between the changes necessary and beneficial to court of this both interpreta- understanding through increased in the law *9 tion of the Act. particular problem of opinion majority the
The resolves question giving interpretation of to the liberal this case employ- of out of and in the course when an accident arises ment. is, my opinion, body Board deter-
The Industrial in the to interpret an mine definition of such accident. and workable interpretation majority opinion speaks The of a liberal agreement only view, to Act, I this but the and am in with applies policies Industrial the to the of the extent legislature Compensa- Board. Our the Workmen’s established doing thereunder, in the procedures so tion Act and the designated to the administrative Industrial Board was be organization compensatory interpretative performs liberally legislature If it of the to functions. intent the Act, must construe the Industrial Board’s actions the then having legislative appellate court reflect mandate. As an this jurisdiction Board, are appeals we from awards de- believe to be constrained to follow the case law terminative in the instant case. 445, App. Company (1956), 126 Ind.
In Steele v. Anderson deny 451, 133 affirming 896, court, in award N. E. 2d ing compensation, stated: ample evidence in “It must be conceded that there is appel- support based on
record to an affirmative award theory liability Board fit seen lant’s the Industrial had recognize an accidental so to further that where do. We employ- injury, arising in out the course pre-existing aggravates,. or activates a accelerates ment^
405 compensable. right employee, condition to Carry Stores, Inc. Red Front He v. Cash flin Cyclone (1947) 662; , Company 517, Earhart 225 Ind. 75 N. E. 2d v. 558; 48, App. Fence Brooks v. N. E. 99 190 Ind. Company (1951), 122 Furniture International (1952). 197, Ind. 101 Denied N. 2d Transfer E. situation, however, “Such a court in justify does not reversing trolling present con unless the unfavorable award are are forced such that reasonable men facts contrary a Board. Ind. the Industrial conclusion to that reached' Telephone Company (1940), Indiana 217 Warren v. 399; Wright Peabody Company 93, 26 N. v. Coal E. 2d (1948) , 116; Zimmerman N. E. 2d James Company Coal App. E. 315. “The award this case Board cannot set aside undisputed unless all the evidence contradicted and not appel- and lant inescapably leads to the sole conclusion that was entitled an award under our Com- Workmen’s pensation Act.” I find the Steele case identical so grave majority evidence in the case at bar opinion. error portion in a recitation of Steele following quotation opinion Steele, page from our 448: *10 appellant’s testimony corroborated, “The pain physical was as to by day alleged accident, her of on suffered by roborated in other testimony employee. of a fellow also cor- She was portions testimony by her her hus- band, that the relief appellant.insists who was a witness in her behalf. The undisputed the above evidence is and entitled her to sought However, a as matter law. the record during physical discloses that a examination conducted Nilges, Dr. day July, 1954, Richard G. on the 24th she gave severe following past history: ‘That had she a similar right pain attack lumbar lower area with two years ago; way that the started in the and that same chiropractic she had six received with relief.’ treatments also record appellee discloses that a for witness
testified, substance, complained as follows: ‘She of a year sore prior back (June 11, a 1954) to this occasion and throughout year prior that complained she had several of a times sore back.’ testimony says only medical appellant that “The on the Nilges, who testified Richard G. that of Dr. a history causal connec- could be appellant’s basis tion there incident he found it and her condition as between history assuming correct work; her at her and that or either caused 11, 1954, have could on June the accident aggravated surgery, found at which was the condition ques- namely, tions Some ruptured disc. intervertebral a propounded as follows: answers are to him and his discs, “Q. ruptured such intervertebral Doctor, do these accidental means? had, result from as Mrs. ever Steele Yes, they usually sir, “A. do.
“Q. possible strain your opinion, Doctor, it wiper lifting display blades windshield boxes of and, (10) pounds weighed approximately ten which weighed lifting is, that ten boxes into a for a such boxes that woman placing pounds sideways turning those larger slightly from a level box lower up, picked them as the table from she so that which larger puts boxes she twists such these into the she smaller boxes over, possible stoops it her back movement and she enough body upon a her cause strain ruptured as to in disc turn cause a intervertebral such you found had? Mrs. Steele aggravate body “A. Such a motion of the could cause or ruptured a had. intervertebral disc such as Mrs. Steele “Q. you history any history, Do of a traumatic have you? given history patient twisting “A. We have a strain to her back could cause her condition. “Q. you Now when have one of these latent conditions disc anything most the true final hernia will create requires By way illustration, surgery, won’t it? getting coughing, up chair, sneezing, down undress; things over to or dress those spark condition, would be the off sets the final may it not? experience; my requires “A. Not in sort of some twist- ing straining injury greater severity less back. “Q. Doctor, assuming there was no latent disc condition doing successfully had *11 that’a woman been cer- (2) long years and on type two tain of as work judicial a question in particular date falls in the proceeding just after day doing doing she had been what par- day developed, what in that hernia disc a with day’s in work it would tie condition
ticular is the woman’s work? placed in always possible
“A. It be the back can placed on the back position a a strain to such or be occur day could a at strain various times according the woman’s apparently and time history day occur on the 11th of June. did “Q. history in according Well, unusual to her was what strain, the form that she suffered? was it what pick bending quote, over to “A. I She and states ‘she straighten- up upon wiper and some windshield frames part her ing up catching right felt lower pa- continue, I back,’ may I had numerous and if have placing bending history, over the same tients object, or incident have the accident known light. any time, heavy to occur at “Q. simple Doctor, similarly occur, from as And it can you thing if your to lace shoe over a latent condition ? usually usually. experience could, my “A. It In but something.” up picking with associated my opinion, testimony In of the Steele opinion majority in case is so identical out that set distinguished. in cannot In Steele this case two complained aggravation type, of was controlling However, same as in this facts case. light Steele,
case, in viewed lead me to the decision appeal conclusion that the award be affirmed should here as it Steele case. keeping my subject, with views I refer on this to Gill
v. James Gill Sons & A. 159 N. E. Judge Eyan, speaking court, wherein for this stated: question “The or not whether arises out of employment the course of the fact. establishing upon The burden of fact the claim such rests *12 may appeal only ant and on most we view that evidence Manufacturing appellee. Kinsey favorable v. Sheller Corp. 126 N. E. 267. finding upon “A and award will not disturbed the evi dence unless with all in such conclusive nature reasonably ferences clusion deducible force a con therefrom as contrary to that reached the Board. Steel U.S. Corp. Dykes 111.” E. 2d My might questioned belief reasonable men appellant’s whether accident arose out of the course employment'requires vote to affirm the award of the Industrial Board.
Hoffman, J., concurs. Reported in 246 N. 410. E. 2d
Note. —
Coleman et ux. v. DeMoss. 20,244. April 21, Rehearing May 21, [No. Filed 1969. denied 1969.]