Wolf v. Plibrico Sales & Service Company

301 N.E.2d 756, 158 Ind. App. 111, 1973 Ind. App. LEXIS 896
CourtIndiana Court of Appeals
DecidedOctober 16, 1973
Docket2-673A148
StatusPublished
Cited by13 cases

This text of 301 N.E.2d 756 (Wolf v. Plibrico Sales & Service Company) 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
Wolf v. Plibrico Sales & Service Company, 301 N.E.2d 756, 158 Ind. App. 111, 1973 Ind. App. LEXIS 896 (Ind. Ct. App. 1973).

Opinions

Sharp, J.

The Appellant, Gene Wolf, filed his Form 9 Application which was granted by the Single Hearing 'Member and denied by the Full Industrial Board. Two members of the Full Board dissented from its decision.

This case was hotly contested by able counsel who presented a wide range of evidence including medical evidence. If the evidence permitted the decision of the Full Industrial Board we will not reverse unless it is contrary to law. The Appellee asserts that such evidence permits the inference that the Appellant’s back problems were gradual and progressive.

Plaintiff was employed during the summer of 1971 by Plibrico Sales & Service, Inc., which company engaged in repair work on boilers and industrial furnaces. During a period in July of 1971 a crew of the defendant was working at Joslyn Steel in Fort Wayne, repairing a “walking beam furnace”, which is described as being approximately 20 feet long and 9 feet wide and 28 inches high. The plaintiff was required to work in the furnace on July 3 and July 9, 1971, while Joslyn Steel was shut down for two weeks in July for its annual shut-down in the course of carrying out and re[113]*113placing the lining of the furnace with refractory material. While working in the furnace, the crew would work either in a kneeling position or bent over. Plaintiff recalled that he did work two or three days a week and experienced normal aches as did his co-workers, but on July 9, 1971, he experienced a sharp pain while working in the furnace and he reported to his foreman that his back was “killing him”, whereupon plaintiff went to his family doctor rather than the company doctor. After seeing his doctor, he returned to the job and worked several hours overtime. He worked the following week in Edgerton, Ohio, and then later was off a few days or a week until he was hospitalized by his doctor about August 10, 1971, for eleven days, and was unable to work again for defendant employer. He was diagnosed as having a severe lumbo-sacral sprain.

The description of the events by the Appellant are, in part, as follows:

“Q. When did you first notice the problem and what was the nature of the problem that you had in regard to your injury here?
A. Well, usually when you start working in this, why, your back starts hurting and you don’t think too much about it. But it just kept getting worse to the point where I couldn’t stand it. And the last day that we worked out there I told the foreman, I said, T can’t take it any longer.’ I said, ‘I’d like to go to the doctor.’ And he told me I could.
Q. And what was his name?
A. Dan Holom.
Q. And he’s the man that we have the deposition of here? A. Yes.
Q. And you went then to your family doctor?
A. Yes, sir.
Q. And what’s his name?
A. Dr. Krueger.
Q. And he’s here in Fort Wayne, Indiana?
A. Yes, sir.
Q. And that was approximately when, July when?
A. July the 9th.”
[114]*114“Q. And that was the last day that you worked for Plibrico Sales & Service Company?
A. No, sir.
Q. Did you go back and try to work again?
A. I went to the doctor and went back to work. He gave me some pain pills and took some x-rays and I went back to work.
Q. And how long—when did you go back to work?
A. As soon as I went home and changed my clothes and I went back to work out at Joslyn.
Q. And how long did you work again?
A. That was the last day out there. We finished up there and then was in Egerton, Ohio, the next week. And I worked over there until I couldn’t take it any longer and then I was off, I think possibly, maybe three or four days or a week. And then I went to Linton, Indiana, at General Electric down there and was down there approximately ten days and then the first of August was the last that I worked. Around the first of August, I can’t say just the exact date.”
⅜ ⅜ *
“Q. Now, would you describe again, I believe you say that July 9th is when you told your foreman that you felt so bad you were going to see your doctor, is that correct?
A. Yes, sir.
Q. And would you describe that it was sometime before that—how many days before then that you first noticed the back pain being worse than usual?
A. Well, I don’t know for sure. Probably a week. Three or four days or five. Somewhere around there.
Q. That it started bothering you pretty bad?
A. Yes, sir.
Q. And it finally got so bad on the 9th of July that you decided that you better go see your family doctor?
A. Yes, sir.”
* * *
“Q. Now, did you tell Dr. Krueger that your back had been bothering you for two weeks ?
A. I don’t recall just what I told him.
Q. But, at any rate, you saw Dr. Krueger on that day on July 9th and you went back to the Plibrico job at Joslyn? A. Yes, sir.
Q. Do you recall working overtime that day?
A. Yes, sir.
[115]*115Q. As a matter of fact, you worked fifteen hours that day, does that sound right to you ?
A. That’s probably close to it.
Q. And at some point of time then in August I understand Dr. Krueger put you in the hospital?
A. Yes, sir.
Q. You didn’t have any surgery?
A. No, sir.
Q. No specialists saw you?
A. No, sir.
Q. And then there came a time in December where Dr. Krueger released you to go back to work?
A. Yes, sir.
* * *
“Q. I forgot what you told me when I asked if you told Dr. Krueger on July 9th that your back had been bothering you a couple of weeks, does that sound correct?
A. Like I say, it’s been a good while ago. I don’t recall. I think possibly it had been bothering me maybe a week.
Q. Do you know where you had been working a week before you went to see Dr. Krueger on July 9th?
A. Possibly, well I’d worked probably on the week ends at Joslyn, and then I was in and out. I probably was working at Goshen Rubber, just guessing. I don’t know for sure.
Q.

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Wolf v. Plibrico Sales & Service Company
301 N.E.2d 756 (Indiana Court of Appeals, 1973)

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Bluebook (online)
301 N.E.2d 756, 158 Ind. App. 111, 1973 Ind. App. LEXIS 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolf-v-plibrico-sales-service-company-indctapp-1973.