Ellis v. Hubbell Metals, Inc. , 174 Ind. App. 86 ( 1977 )

DISSENTING OPINION

Hoffman, J.¹

The majority opinion correctly states the law that upon a review from the Industrial Board this court cannot weigh the evidence or determine the credibility of witnesses. The fact finding function rests with the Board and if there is evidence to support the Board’s findings the award should be affirmed. Further, the burden rests upon the appellant to demonstrate that the decision of the Board is contrary to law.

The record herein contains ample evidence that the appellant had a preexisting condition of back pain; that the condition could at any time cause the symptom of sciatica leg paralysis about which appellant had previously complained; that appellant was performing his regular work duties and exercising no undue exertion; that his own chiropractor had released him from further treatment; and that the recurrence of the pain and disability arose when he fell over beside his bed in his own home at 1:30 A.M.

Generally courts have denied compensation for death or injuries which occur during performance of the worker’s regular duties when a preexisting condition has been shown to have been present and there was no showing of an unusual exertion. U.S. Steel Corp. v. Dykes (1958), 238 Ind. 599, 154 N.E.2d 111; Chestnut v. Coca Cola (1969), 145 Ind. App. 504, 251 N.E.2d 575; City of Anderson v. Borton (1961), 132 Ind. App. 684, 178 N.E.2d 904. The reason for so deciding has been based on the requirement that the claimed harm be related to the injury causally and not incidentally. As stated in Small, Workmen’s Compensation Law of Indiana, § 6.2, at 110-11 (1950):

“There must be some substantial link running from the employment, or one of its incidents, through the accident to the particular harm for which compensation is sought. To prove the existence of that link, there must be a cause in fact, or ‘but for’ cause as a sine qua non. In addition, there must be either a direct or a proximate cause to be found in the employment. In other words, a claimant must establish that but for his employment, the accident would not have occurred. He must further establish that his employment either constituted the direct and exclusive cause for the harm complained of, or that other intervening causes were not of sufficient force to supersede the employment as the moving cause.”

This court in Chestnut v. Coca Cola, supra, drew from U.S. Steel Corp. v. Dykes, supra, in the same context stating:

“We believe the doctrine of the Dykes case to be as folllows: If the Industrial Board specifically finds a pre-existing condition in the area of injury, then the Industrial Board must specifically find that the injury resulted from an unusual exertion in order to determine that an ‘accident’ occurred within the meaning of the statute.

“The underlying reasoning behind an ‘unusual exertion’ analysis rests on the desire of the court to find a more specific causal relationship between the injury complained of and the act which caused it arising out of and in the course of employment.

“As Chief Justice Bobbitt pointed out in Dykes, at pages 607-608 of 238 Ind., page 116 of 154 N.E.2d,

‘The causal question here is: Was the inability of decedent’s heart to meet the demands, i.e., the “coronary insufficiency”, caused by a change, i.e., an increase in the work load beyond the heart’s ability to function, or by a decrease in the heart’s ability to meet an unchanged demand. The “cause” is that which has changed, not that which remains constant.’ ” (Footnote omitted.)

145 Ind. App. at 511, 251 N.E.2d at 579.

Moreover the determination of whether a causal relationship exists between the injury and the employment necessarily involves a question of fact drawn by the Board from the evidence. As stated in Estey Piano Corporation v. Steffen (1975), 164 Ind. App. 239, 328 N.E.2d 240, at 243:

“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. (Citations omitted.) 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, 192 N.E. at 765.

“It is therefore incumbent upon claimant to prove the causal relationship by substantial evidence of probative value.”

In the case at bar the Full Industrial Board determined that no causal relationship existed between the employment and the disabling medical condition as a question of fact. In this regard there was sufficient evidence to support the finding. It should not be disturbed.

The majority relies on its “unexpected result theory” to conclude that only the injury itself must be unexpected and not the cause of the injury. Specifically an “accident” is said to occur even though everything preceding the injury was normal. Thus any preexisting illness the symptoms of which were manifest during the working hours of the day would have to be considered as arising “out of’ and “in the course of’ employment for purposes of compensation.

However this rationale would render a finding of cause useless.² Such contravenes the ruling of our Supreme Court in U.S. Steel Corp. v. Dykes, supra, where it is stated:

“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.” 238 Ind. at 613, 154 N.E.2d at 119.

Since the Industrial Board failed to find some untoward or unexpected event and since the majority relies solely on an unexpected result theory, nowhere to be found in U.S. Steel Corp. v. Dykes, supra, it becomes incumbent upon me to dissent. The finding of an unexpected cause relates to whether the accident arose “out of’ and not just “in the course of’ employment.

Having found no “unexpected cause” the decision of the Board should be affirmed.

NOTE—Reported at 366 N.E.2d 207.

1 . Hoffman, Judge, participating by designation.

2 . See generally, Judge Buchanan’s concurring opinion in Estey Piano Corporation v. Steffen (1975), 164 Ind. App. 239, 328 N.E.2d 240, 245.