Crites v. Baker

¶1Concurring Opinion

¶2The legal question before the Industrial Board and now before this court is whether plaintiff employee’s in*283jury arose out of his employment. The full board concluded that it did but failed to find the facts on which it based that conclusion, as required by section 601 of the Workmen’s Compensation Act.

¶3On first blush it appears that the evidence is susceptible of but one inference as to each material fact bearing on the legal question of whether the accident did arise out of the employment. If that be true we might suppose that the board’s failure to find the facts is therefore a mere technicality which we should overlook in the interest of relieving an overworked board of a meaningless chore. The Supreme Court, however, has told us we cannot do that.2

¶4But I am not convinced that there was no opportunity presented to the board by the evidence to choose between inferences. Which is to say that in at least one area material to whether the injury arose out of the employment the ultimate fact is not entirely clear. What was the purpose and intent with which the missile (the apple) was ejected from the passing bus? Did it “accidentally” leave the hands of the child on the bus or did he intentionally throw it into the street? If the act was intentional what was its motive? Did the thrower intend to hit someone? This particular apple? Why? Sport? Malice? Personal vengeance?

¶5I agree that it is highly unlikely that the board, or any member thereof, was of the opinion that the injury had its origin in any personal malice of the thrower toward the injured employee. I agree that the most reasonable inference is that the injury arose from a “hazard of the street” and would have befallen anyone who happened to be in that particular spot at that particular time, whether seated in a trash *284pick-up truck, a Cadillac convertible, or standing there as a pedestrian. But I have no way of knowing whether compensation was awarded on the basis of such an unarticulated “finding.” The fact that some other “finding” giving the injury a more obvious relationship to the employment might not have been supported by sufficient evidence to withstand judicial review is beside the point. Likewise the possibility that compensation may have been awarded without regard to whether the injury arose “out of” the employment, in the belief that any accidental injury which befalls an employee between starting time and quitting time is compensable, no matter how unlikely that may seem, is not negated by any “fact” recited in the board’s minutes, entry, or award.

¶6Because the result reached in Judge Sharp’s opinion is the result I would have reached had I been a board member, I concur. But because I cannot agree that his approach to review of Industrial Board decisions is so “elemental” as he believes, I must once again register my protest to our doing the board’s work. See Miller v. Barrett (1971), 148 Ind. App. 685, 269 N. E. 2d 772, 25 Ind. Dec. 547, in which this court, sitting en banc, reached no decision by reason of a four-to-four vote of the judges on the question of whether we or the board should find the facts.

¶7Staton, J., concurs.

¶8Note. — Reported in 276 N. E. 2d 582.