Estey Piano Corporation v. Steffen

Concurring Opinion

Buchanan, J.

I am compelled to concur only in the result in this case for two reasons:

(1) The Board made a specific Finding of Fact that the weight of the keyboard which the plaintiff lifted on November 26, 1969, “constituted sufficient extra or unusual exertion” to result in “an accidental injury”.
(2) Certain Appellate and Court of Appeals cases are contrary to the rationale of U.S. Steel Corp. v. Dykes (1958), 238 Ind. 599, 154 N.E.2d 111.

The November 18, 1974, Findings of Fact appear to be inconsistent. After citing that Steffen’s “regular and routine duties” consisted of handling various parts of pianos for sanding purposes and that she was “performing her normal, common, usual and routine duties” on November 26, when she experienced a “sudden and untoward pain in her back”, and that “the lifting of the keyboards was part of her normal, usual and routine duties for her employer”, the Board then *247finds that the weight of the keyboard which the plaintiff lifted on November 26, 1969 “constituted sufficient extra or unusual exertion” to cause her injury. And there is testimony by Steffen which supports this finding.

Accordingly, our holding should be limited to reliance on the holding in The Studebaker Corp. v. Jones (1937), 104 Ind. App. 270, 10 N.E.2d 747, a similar “lifting” case.1 (Neither Jones nor Steffen were found to be suffering from a pre-existing back condition.)

But like some other Appellate and Court of Appeals cases,2 the language used in Studebaker Corp. seemingly eliminates the necessity of an “accident”:

“ [N] or is it essential to determine the amount and extent of the strain, effort, or exertion necessary to be expended as a legal cause for a compensable injury. All workmen are not constituted alike. Some are stronger than others and more capable of doing the same work. Some would use more exertion or more effort in performing the same labor, and because of their physical condition might be more *248susceptible to injury. The act of lifting the hoods to the conveyor undoubtedly required some physical effort and exertion which the board found contributed to the injury complained of and is compensable, however slight. (Emphasis suplied.) 104 Ind. App. at 275-76, 10 N.E.2d at 749.

And in Indian Creek Coal & Mining Co. v. Calvert (1918), 68 Ind. App. 474, 119 N.E. 519 (a case in which a miner died while performing his normal and usual duties with no known pre-existing condition) :

“ ‘ [W] here an employe afflicted with disease receives a personal injury under such circumstances as that he might have appealed to the [Workmen’s Compensation] act for relief on account of the injury had there been no disease involved, but the disease as it in fact exists is by the injury materially aggravated or accelerated, resulting in disability or death earlier than would have otherwise occurred, and the disability or death does not result from the disease alone progressing naturally as it would have done under ordinary conditions, but the injury, aggravating and accelerating its progress, materially contributes to hasten its culmination in disability or death, there may be an award under the compensation acts.’ In re Bowers (1917), 65 Ind. App. 128, 133, 116 N.E. 842.” 68 Ind. App. at 480-81, 119 N.E. at 521.

In my opinion Indian Creek Coal & Mining Co., and the cases that followed it, are contrary to Dykes and should be overruled. In effect, any unexpected injury becomes an accidental injury.

Such language appears to transform the Workmen’s Compensation Act into a super insurance policy allowing compensation contrary to the rationale of the Dykes case, which is the Supreme Court’s most recent pronouncement as to what constitutes an “accident”. Judge Bobbitt’s closing paragraph reads:

“ [7] The mere showing that he was performing his usual routine everyday task when he suffered a heart attack does not establish a right to workmen’s compensation because there was no event or happening beyond the mere employment itself.” 154 N.E.2d at 119.

Geoffrey Segar summarizes the “accident” requirement in the 1968 Cumulative Supplement to Small’s Workmen’s Compensation Law of Indiana:

*249“. . . [I] t should be noted that the Court still requires some untoward or unexpected event, ... so that the mere fact of being employed at the time a disability arose will not suffice.”
“Usual and regular or ordinary activity such as sweeping, shoveling coal, opening a rail car door, the regular milking of cows, and carrying a grain door up a flight of stairs have been held as non-compensable in awards affirming such Industrial Board findings. [Campbell v. Colgate Palmolive Co. (1962), 134 Ind. App. 45, 184 N.E.2d 160; Douglas v. Warner Gear (1961), 131 Ind. App. 664, 174 N.E.2d 584; Blevins v. Consumers Ice & Fuel Co. (1959), 129 Ind. App. 257, 156 N.E.2d 103; Bundy v. Concrete Ready Mix Co. (1960), 130 Ind. App. 542, 167 N.E.2d 477; Arford v. State of Ind. (1959), 129 Ind. App. 312, 156 N.E.2d 401 Shaffer v. Indiana Gas & Chem. Corp. (1965), 137 Ind. App. 471, 209 N.E.2d 919: footnotes 98b to 98g, inclusive.] (Emphasis supplied.) Secs. 5.1 and 6.2, pp. 33, 42 (Cum. Supp.1968).

Also see City of Anderson v. Borton (1962), 132 Ind. App. 684, 178 N.E.2d 904.3

In addition to my disagreement with the language in some Appellate and Court of Appeals cases apparently dispensing with the need for an accident, I also find it unnecessary to distinguish heart attack and bending cases from lifting cases. The rationale of Dykes applies in either event.

*250My analysis of the cases interpreting an “accident arising out of and in the course of the employment” leads me to the conclusion that the word “accident”4 has been elasticized to the breaking point. In the search for extension of employer’s liability for accident-connected injuries, the law on this subject has become hopelessly conflicting and confused . . . and would appear to have gone far beyond the original intent of the framers of the Workmen’s Compensation Act. It appears to me that Dykes has been consistently limited by the Appellate Court and the Court of Appeals and that clarification is in order.

Hidden away in a dust bin of 1918 history is the dissent of Judge Dausman in Indian Creek accurately forecasting the results of judicial legislation that equated normal exertion with “accident.” He said:

“While the deceased was shoveling coal in the usual way, and while his muscular activity was accompanied by the natural and normal blood pressure, the aorta burst because it had been thinned and weakened by disease. There is a direct causal connection between the disease and the death, *251and that excludes the idea of death by accident. ... I am compelled to the conclusion that the deceased came to his death by disease, and not by accident. . . .” [The majority opinion recognized the validity of medical testimony that Calvert’s diseased aorta may have been due to “chronic alcoholism”.]
* * *
“[T]he effect of the majority opinion is to extend the law by judicial construction to include also life insurance. . . . It will result in awarding compensation in every case of death by heart failure, apoplexy, or other disease of any kind whatsoever, on the mere statement that the death might have been accelerated by the normal ‘strain and exertion’ of the deceased’s usual work; for that ‘strain and exertion’ aliuays exists. To bring about such a result by judicial construction is a palpable invasion of the province of the legislation.” (Emphasis supplied.) 68 Ind. App. at 506-7, 509, 119 N.E. at 528.

Thus, it would appear that by liberally construing the Workmen’s Compensation Act the word “accident” has almost been construed out of existence. In part at least, this is due to the presence of disease as a factor in industrial injuries . . . disease which may or may not be employment related.

Until 1937 there was no legislation awarding compensation for industrial diseases and liability was continually expanded by Appellate Court fiat. Even today the schedule of compensable diseases in the Occupational Disease Act is limited and the courts and the lawyers hark back to precedents prior to 1937, the date of adoption of the Occupational Disease Act. In effect, disease or abnormal physical condition which may or may not be employment related have been compensated as “accidental injuries”.

Thus, I am forced to concur in the result of this case because its facts do not bring it strictly within the holding of Dykes, and because in deciding that 1958 case, Slaubaugh v. Vore (1952), 123 Ind. App. 497, 110 N.E.2d 299, and U.S. Steel Corp. v. Douglas, et al. (1954), 125 Ind. App. 212, 123 N.E.2d 899, both of which were unusual or extreme exertion cases, were not disapproved but were distinguished. Until either *252the legislature acts or the Indiana Supreme Court redefines an “accident”, I see no other course.

Note.—Reported at 328 N.E.2d 240.

. Jones, together with three other employees, had the task of polishing automobile hoods on a conveyor line which required the lifting and turning of the hoods. He had no history of any illness. On the day of the accident two of the four men were absent which caused Jones and the other employee to unusually exert themselves. While lifting one of the automobile hoods, Jones “felt a pain in his left side. . . .”

This Court, affirming the Industrial Board’s Award, noted that Jones “had suffered a collapsed lung . . .” as a result of “the strain and exertion in lifting this particular hood. . . .” The Court concluded:

“The act of lifting the hoods to the conveyor undoubtedly required some physical effort and exertion which the board found contributed to the injury complained of and is compensable, . . . and . . . his injury was attached to a definite occurrence (that of lifting) incidental to his employment and within the well-defined meaning of the term ‘accident’ as used in the Workmen’s Compensation Act.” 104 Ind. App. at 276, 10 N.E.2d at 749.

. General American Tank Car, etc. v. Weirick (1921), 77 Ind. App. 242, 133 N.E. 391; Morgan Packing Co. v. Monroe (1934), 99 Ind. App. 321, 192 N.E. 320; American Maize Products Co. v. Nichitorchick (1940), 108 Ind. App. 502, 29 N.E.2d 801; Slaubaugh v. Vore (1952), 123 Ind. App. 497, 110 N.E.2d 299; U.S. Steel Corp. v. Douglas, et al. (1954), 125 Ind. App. 212, 123 N.E.2d 899; Lock-Joint Tube Co., Inc. v. Brown (1963), 135 Ind. App. 386, 191 N.E.2d 110 (criticizes U.S. Steel Corp. v. Dykes, supra); Anaconda Aluminum Co. v. Aue (1964), 136 Ind. App. 463, 202 N.E.2d 403; Larson, THE LAW OF WORKMEN’S COMPENSATION § 38.00-38.20 (Fifth Ed. 1973).

See also,

Heflin v. Red Front Cash & Carry (1947), 225 Ind. 517, 75 N.E.2d 662.

. “In view of the fact that there is no conflict in the evidence concerning the performance of the act of bending over to lift the trap door when the pain occurred, and since there was nothing unexpected nor any unusual exertion connected with this incident, and with no conflict in the evidence that appellee’s back had degenerated since his first injury to a point where pain and further damage might occur merely by the act of walking about as a normal person, we are of the opinion that the evidence was insufficient to prove that the injury occurred because of any increase in his work load or of any extra exertion. We are also of the opinion that there was a lack of any evidence to prove that the act of bending over to lift a trap door was anything so unusual to appellee’s customary work as to cause an aggravation of a previously existing degenerated back.

“Following the present thinking of the Supreme Court in view of its holding in the Dykes case, supra, it seems logical that the only conclusion which reasonable men could reach from the evidence in this case, with all inferences reasonably deductible therefrom, that the appellee did not suffer injury as a result of and in the course of his employment.

“For the foregoing reasons, the award of the Industrial Board is contrary to law and must be reversed.”

. Professor Small summarizes the definition of “accident” in terms of an unforeseeable result and the cases by and large have followed this tack:

“[An accident] may lay the ground for the giving of compensation if the results of the action were not forseeable at the time.”
“. . . So interpreted, the statute [§ 40-1202] only requires a claimant to show that his injury . . . was accidentally sustained. If he can show that the injury was not reasonably foreseeable, it is sustained accidentally.” [Footnotes omitted.] (Emphasis supplied.)
Small, WORKMEN’S COMPENSATION LAW OF INDIANA, § 5.2, pp. 99-100 (First Ed. 1950).

See also Indian Creek Coal & Mining Co. v. Calvert, supra:

“[I]t is enough that the causes . . . should produce a result which on a particular occasion is neither designed nor expected. The test as to whether an injury is unexpected and . . . occurs ‘by accident’ is that the sufferer did not intend or expect that injury would on that particular occasion result from what he was doing.” 68 Ind. App. at 492.

See also,

General American Tank Car, etc. v. Weirick, supra; Morgan Packing Co. v. Monroe, supra; The Studebaker Corp. v. Jones, supra; American Maize Products Co. v. Nichitorchick, supra; Slaubaugh v. Vore, supra; U S. Steel Corp. v. Douglas, et al., supra; Lock-Joint Tube Co., Inc. v. Brown, supra; Anaconda Aluminum Co. v. Aue, supra; Larson, THE LAW OF WORKMEN’S COMPENSATION, supra.