Sears Roebuck & Co. v. Murphy

508 N.E.2d 825, 1987 Ind. App. LEXIS 2743
CourtIndiana Court of Appeals
DecidedJune 11, 1987
Docket93A02-8612-EX-442
StatusPublished
Cited by10 cases

This text of 508 N.E.2d 825 (Sears Roebuck & Co. v. Murphy) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sears Roebuck & Co. v. Murphy, 508 N.E.2d 825, 1987 Ind. App. LEXIS 2743 (Ind. Ct. App. 1987).

Opinions

STATON, Judge.

Sears appeals Murphy's workmen's compensation award, raising four issues for our review:

1. Whether Murphy's injury arose "out of" his employment.
2. Whether there was sufficient evidence to sustain a permanent partial impairment award.
8. Whether the permanent partial impairment award is contrary to law.
4. Whether the Industrial Board erred in ordering Sears to reimburse a non-party group insurance carrier.

We affirm in part and reverse in part.

Michael Murphy is employed as a service technician at Sears. His duties include service work on air conditioners, refrigerators, furnaces, and dehumidifiers for customers of Sears. On May 7, 1985, he was at a eustomer's home installing a window air eonditioner with another technician. In or der to install the air conditioner, Murphy was required to kneel, lift, squat, get up and down, and twist around. After the job was finished, Murphy carried some tools out to his truck. While walking across the customer's lawn, his right knee felt like it was coming apart. Murphy testified: "I stopped and flexed it a little bit and I kind [827]*827of rubbed it, and I kept walking and I walked on out to the truck and it still just felt like it was coming apart."

Problems with the knee continued throughout the day. He went to the company doctor the next day and was referred to an orthopedic surgeon, Dr. Robert R. Shugart. Shugart diagnosed the problem as a torn medial meniscus, or internal fibro-cartilage of the knee joint. He operated on Murphy and removed some of the knee's cartilage. . Murphy returned to work on July 8, 1985, having missed eight weeks of work. On October 8, 1985, Shugart determined that Murphy suffered a five percent permanent functional impairment of the right leg below the knee.

The Board's Single Hearing Member entered the following Findings of Fact and Award:

1. The Board finds that the issues to be resolved are: (a) whether Plaintiff's injury constitutes an injury by accident arising out of and in the course of his employment with Defendant, such as to make it compensable under the Workmen's Compensation Act, and (b) even if compensable, whether such injury has resulted in permanent partial impairment.
2. Plaintiff claims injury on May "7, 1985, and it is found his average weekly wage was $268.00 per week.
3. The Board further finds that Plaintiff testified in his stipulated deposition, that the injury occurred as he was "walking across the customer's lawn" (described as a level, grass lawn) (Plaintiff's Deposition, Page 11), and as he was walking, his knee started hurting. Later at lunch, the second pain hit his knee while at a McDonald's restaurant (Plaintiff's Deposition, Page 8).
4. The Board further finds that the treating physician, Dr. Shugart, testified in his stipulated deposition that Plaintiff heard the "pop" of the knee as he was walking across the customer's lawn. ‘
The Doctor further testified that such injuries are common and sometimes caused by the mere act of walking and many people are predisposed to such injury, regardless of employment.
5. The Plaintiff testified that the knee became symptomatic as he walked back to his truck from a Sears customer repair job inside a house where he was kneeling, squatting, and lifting. The Doctor testified the injury was acute, not chronic in nature, and that the knee twists somewhat when in motion, whether walking, hauling or squatting. The "torn medial meniscus" can occur with any type of twisting injury.
6. The Doctor was reluctant to testify with any direct opinion as to the exact moment of the tear injury, except that it did occur in the short period before or at the time of "pop", and pain symptoms noted during the walk back to the truck.
It is here found that the twisting "required to cause the tear more logi-eally occurred inside the first house on 5/7/85, during the squatting, kneeling and lifting" involved in appliance repair, and the medial meniscus was stressed, thereby to the point of tearing in the less stressful maneuver of walking on the level lawn back to the Sears truck. In either event, the injury arose not just during the course of, but also out of the work requiring kneeling, squatting, and lifting. Such result was not expected. The motions were not unusual, but resulted here in an acute internal injury, requiring repair as certainly any other slip, twist or fall.
8. The incident was not trivial when it is noted that house appliance repairs require repairmen to get into unusual positions of kneeling, squatting, ond lifting, all at the same time. Once out of the contorted positions of stress, even simple flexing of the joints, produces the pain of the injury, probably incurred during the cramped and contorted positions.
It is further found a dispute existed between the parties prior to the filing [828]*828of Plaintiff's claim and that the law and facts favor the Plaintiff.
10. The Board further finds, concerning the issue of permanent partial impairment, that Dr. Shugart's five percent of the leg below the knee rating was said to have been based on the doctor's concern for future problems, but that the Plaintiff presently has limited functional loss resultant from the injury equal to five percent (5%) (Dr. Shu-gart's Deposition, Page 24).
11. Plaintiff was temporarily totally disabled from May 8, 1985 to July 8, 1985. From the Plaintiff's and the Doctor's testimony, the arthoscopy [sic] and surgery were both performed on an out-patient basis and Plaintiff lost no work after July 8th.
AWARD
IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Industrial Board of Indiana, that Plaintiff shall have and recover from Defendant, compensation at the rate of $166.00 per week, beginning May 8, 1985 for a specific period of eight (8) weeks for his temporary total disability.
IT IS FURTHER ORDERED AND ADJUDGED, that Plaintiff shall have and recover from Defendant, compensation at the rate of $75.00 per week, beginning May 8, 1985, for a specific period of 11.25 weeks, for his five percent (5%) permanent partial impairment to the right lower extremity.
IT IS FURTHER ORDERED AND ADJUDGED, that Plaintiff shall have and recover from Defendant, his statutory medical expenses as follows:
CFB Radiology $ 62.00 (Paid by Plaintiff) (17.00)
Lutheran Hospital 115.48 (Paid by Plaintiff) (168.00)
Assoc. Anesthesiologists of Ft. Wayne, Inc. 28.00
(Paid by Plaintiff) (18.00)
Reveo Discount Drug 7.58
Such amounts to be paid to the providers or reimbursed to Plaintiff, as noted.
IT IS FURTHER ORDERED AND ADJUDGED, that Plaintiff signed a waiver of Plaintiff's interest in any recovery to Provident Mutual Insurance Co., the group carrier for Mrs. Michael E. Murphy, Sr., as an employee of E.H.I. in Huntertown, Indiana, none of whom were before the Board as witness or party.

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Bluebook (online)
508 N.E.2d 825, 1987 Ind. App. LEXIS 2743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sears-roebuck-co-v-murphy-indctapp-1987.