Estey Piano Corporation v. Steffen

328 N.E.2d 240, 164 Ind. App. 239, 1975 Ind. App. LEXIS 1138

• Court: Indiana Court of Appeals
• Decided: May 20, 1975
• Docket: 2-873A190
• Status: Published

Opinions

Sullivan, P.J.

Appellant, Estey Piano Corporation (Estey) , appeals from an award by the Industrial Board in favor of appellee, Hilda B. Steffen (Steffen).

The facts most favorable to Steffen and to the Board’s decision are as follows:

Since 1959, Steffen has worked for Estey sanding various piano parts by hand and machine. In early October 1969, Steffen was occasionally requested by the job foreman to sand “keybeds” (also referred to in the record as “keyboards”) which is that portion of the piano upon which are placed the piano keys. The Board found each “keybed” to weigh approximately 27 pounds and that Steffen’s duties of sanding the “keybeds” constituted routine work duty from time to time in the one and one-half month period prior to November 26,1969.

On October 13, 1969, Steffen consulted her family physician, Dr. Panos, regarding a back ailment. In a letter stipulated into evidence, Dr. Panos stated that he had diagnosed the ailment as “acute lumbar strain with probable ‘disc’ syndrome.” Steffen returned to work three or four days later, and performed all employment duties until November 26, 1969. On November 26, 1969, Steffen, while lifting a keybed, suffered a “sudden, sharp pain” in the back, the hip and down the right leg. On December 9, 1969, Steffen was hospitalized for a ruptured lumbar disc with nerve root pain down the right leg. A Dr. Bossard performed surgery removing the ruptured disc. He testified that Steffen’s condition had reached a quiescent state with twenty-five percent permanent partial impairment.

Steffen filed a Form 9 Application on August 26, 1970, and, following a single member hearing, was awarded benefits. Estey requested, and was granted, a hearing by the full Industrial Board which, on June 27, 1972, affirmed the original award. This court has twice ordered the Board’s findings made more specific.¹ On November 18, 1974, the Board filed a Certification of a Corrected Award. The Corrected Award essentially found that Steffen did not suffer from an aggravated preexisting injury; that she was performing her normal, usual, and routine duties when, on November 26, she experienced a sudden and sharp pain while lifting the keyboard; and that the act of lifting the keyboard and the sudden and untoward pain was an accidental injury arising out of and in the course of her employment for Estey. Further, the Board found that the weight of the keyboard (27 pounds) “constituted sufficient extra or unusual exertion causing the ruptured disc.”

On December 17, 1974, Estey filed a brief directed to the Board’s Corrected Award of November 18, in which the following issues were asserted:

1. The evidence is insufficient to show that Steffen’s injury resulted from an accident arising out of the employment.

2. The Board’s findings are predicated on expert opinion testimony given in response to hypothetical 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 the meaning of the compensation act because the evidence does not show an “untoward or unexpected event” such as a “slip, trip or unexpected event.”

The parameters of compensibility are set forth in Ind. Ann. Stat. § 22-3-2-2 (Burns Code Ed. 1974) as “. . . personal injury or death by accident arising out of and in the course of the employment. . . .” The term “accident” imports some “mishap or untoward event not expected or designed”, Haskell and Barker Car Co. v. Brown (1917), 67 Ind. App. 178, 117 N.E. 555; and must be distinguished from its meaning as used in accident insurance policies. Wolf v. Plibrico Sales & Service Co. (1973), 158 Ind. App. 111, 301 N.E.2d 756; Indian Creek Coal & Mining Co. v. Calvert (1918), 68 Ind. App. 474, 119 N.E. 519. In The Studebaker Corp. v. Jones (1937), 104 Ind. App. 270, 275-76, 10 N.E.2d 747, a factually similar case, this court stated:

“Here appellee experienced a pain while in the act of lifting a hood to the conveyer, and his injury was traced by medical testimony to the act of lifting. The mere fact that the physical condition of an employee might make him more susceptible to the particular injury which resulted in his disability is no reason for holding that a disease or condition, rather than the accident, was the proximate cause of the injury upon which the allowance for disability is based; nor 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 effort in performing the same labor, and because of their physical condition might be more susceptible 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. While the work required of appellee may be characterized as ordinary, and such work may have been accomplished by other employees without injury, yet 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.” See also 1A Larson’s Workmen’s Compensation Law, § 38.10 (1973).

In the instant case, the evidence establishes that Steffen experienced a sharp pain on November 26 while lifting a piano keybed, and that the pain resulted from a ruptured lumbar disc. This event constitutes an “accident” within the meaning of the compensation act. Wolf v. Plibrico Sales & Service Co., supra; The Studebaker Corp. v. Jones, supra; Morgan Packing Co. v. Monroe (1934), 99 Ind. App. 321, 192 N.E. 320. Ancillary causation, such as a slip or trip, need not necessarily be shown. United States Steel Corp. v. Douglas (1955), 125 Ind. App. 212, 123 N.E.2d 899.

A statutory concomitant to the existence of an accident requires that such accident arise out of and in the course of employment. Tom Joyce 7-Up Co. v. Layman (1942), 112 Ind. App. 369, 44 N.E.2d 998. Estey, in essence, contests the Board’s findings insofar as they conclude that Steffen’s injury arose out of her employment. It is generally held that an accident arises out of the employment when there exists some causal nexus between the injury complained of and the duties or services performed. Tom Joyce 7-Up Company v. Layman, supra; Lasear, Inc. v. Anderson (1934), 99 Ind. App. 428, 192 N.E. 762. In Lasear, Inc. v. Anderson, supra, the court explained:

“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.” 99 Ind. App. at 434.

It is therefore incumbent upon claimant to prove the causal relationship by substantial evidence of probative value. But a claimant for benefits under the act need not negate all other possible causes for the disability. Rankin v. Industrial Contractors, Inc. (1969), 144 Ind. App. 394, 246 N.E.2d 410.

The evidence of record supports the finding that Steffen sustained an accidental injury while lifting a 27 pound piano keybed in the occasional, yet normal or routine, performance of her duties. This establishes entitlement to workmen’s compensation benefit under the act.

Estey further contests the Board’s finding that the weight of the keybed which Steffen lifted “constituted sufficient extra or unusual exertion.” This finding, Estey asserts, contradicts the Board’s finding that the November 26 accident was not an aggravation of a pre-existing injury or back condition. However, this court has held such adjectives to be “surplusage, which may be disregarded.” Slaubaugh v. Vore (1953), 123 Ind. App. 497, 110 N.E.2d 299. See also Small, Workmen’s Compensation Law § 6.2 (1968 Supp.). Compare U.S. Steel Corp. v. Dykes (1958), 238 Ind. 599, 154 N.E.2d 111.

Even if it be accurate to say that the Dykes case was properly construed in Douglas v. Warner Gear Div. of Borg Warner Corp. (1961), 131 Ind. App. 664, 174 N.E.2d 584, and that the Dykes holding nullifies to some extent the rationale of Slaubaugh, it may be likewise accurate to state that such rationale is dissipated only in “heart attack” cases or in other situations in which the injury cannot be causally attributed to the employment. The Court in Douglas stated:

“We feel more restful in the view that the Supreme Court in the said Dykes case, supra, did very materially modify some of the statements and expressions in the said Slaubaugh and Douglas cases, supra, and while seemingly not considering it necessary to alter the result arrived at in said cases, did depart from the gradual and encroaching theory generally expressed or implied in said cases and previous cases that claims for compensation arising from afflictions of the heart of employees were to be gauged by a standard of less rigidity than that applied to claims of a different nature. In other words, we are impressed that by the said Dykes case, our Supreme Court annulled the idea which was then taking hold that the mere fact that an employee sustained a crippling or fatal heart attack while in the performance of the usual and ordinary tasks of his employment was sufficient to sustain a finding by the Board of an accident arising out of and in the course of his employment, and compensable.

The Court, rather, it seems to us, returned to the original concept in the Workmen’s Compensation cases that to render a claim under such circumstances compensable there must be established a causal connection between the employment or conditions of the employment and the ensuing heart failure. The Court, in said Dykes case, supra, announced in substance, as we see it, that to establish a compensable right it must be shown not merely that the employee suffered a heart attack while performing his usual routine everyday tasks but that there must be shown an ‘event or happening beyond the mere employment itself.’ Broadly, that it must be shown that the employment, or the conditions of the employment, must have been, in some proximate way, accountable for, conducive to, or in aggravation of or the hastening of, the failure activity of the heart.” 131 Ind. App. 664, 672-673.

The case before us, however, is a “lifting” case. The “causal connection” factors emphasized in Slaubaugh retain vitality and application in such cases despite the fact that those factors are not easily applied in mere “bending” cases [Dooley v. Richard’s Standard Service (1969), 145 Ind. App. 470, 251 N.E.2d 449; City of Anderson v. Borton (1962), 132 Ind. App. 684, 178 N.E.2d 904] or heart attack cases. Lock-Joint Tube Co., Inc. v. Brown (1963), 135 Ind. App. 386, 191 N.E.2d 110. The “event or happening beyond the mere employment itself” as seemingly required by Dykes is here present. The evidence shows and the Board found that a specific and definable incident or event took place, i.e., the lifting of a particular keybed at a particular moment. This incident provides the necessary causal nexus required by Dykes even though the particular incident or event may have been routine or normal in the sense of Steffen’s employment duties. Lock-Joint Tube Co., Inc. v. Brown, supra.

Finally, it is noted that there exists in the present case conflicting medical evidence. It is well-settled that this court will not disturb the Board’s finding where the “evidence tends fairly to support the findings and conclusions reached by the board”, C. & E. Trucking Corp. v. Stahl (1962), 135 Ind. App. 600, 181 N.E.2d 21; Indiana Car & Equipment Co. v. Celotto (1919), 69 Ind. App. 341, 121 N.E. 834; nor will the court on appeal weigh conflicting evidence, The Studebaker Corp. v. Jones, supra.

II.

FAILURE TO OBJECT TO FORM OF HYPOTHETICAL QUESTIONS WAIVES APPELLATE CONSIDERATION

Estey complains of certain hypothetical questions propounded to Dr. Bossard in an oral deposition. Estey asserts that such questions were not justified by facts in evidence. However, the questions were not objected to by Estey at the taking of the deposition, at the single member hearing, or at the hearing before the Full Board. It is fundamental that objection to hypothetical questions cannot be initially asserted on appeal, and that failure to timely object forecloses appellate consideration. Slaubaugh v. Vore, supra.

The award of the Industrial Board is hereby affirmed, and pursuant to Ind. Ann. Stat. § 22-3-4-8 (Burns Code Ed. 1974) said award is ordered increased ten percent (10%).

White, J., concurs in result; Buchanan, J., concurs with opinion.

1 . The Board’s decision was reversed and the cause remanded by written opinion on May 11, 1973 (Estey Piano Corporation v. Steffen (1973), 156 Ind. App. 182, 295 N.E.2d 855); and on October 23, 1974, in this appeal, we ordered more specific findings.