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Indiana Michigan Power Co. v. Roush3/15/1999
FOR PUBLICATION
OPINION - FOR PUBLICATION
Indiana Michigan Power Company (I&M; appeals from a decision of the full Worker's Compensation Board (Board) awarding death benefits to Lois Roush, the widow of Ralph Roush (Roush). It raises the following issues:
1) Whether the Board's findings were stated with sufficient specificity; and
2) Whether the Board erred in concluding that Roush's choking arose out of his employment.
We reverse.
FACTS AND PROCEDURAL HISTORY
On November 11, 1994, Roush was assigned as the relief telephone operator at I&M; On his way to the switchboard, Roush picked up a roast beef sandwich provided by an outside company that held a meeting at I&M;s building. After swallowing approximately half of the sandwich at one time, Roush began to choke. Efforts to perform the Heimlich maneuver were unsuccessful, and Roush was taken to Memorial Hospital.
Roush was treated by Dr. Stoller, who noted that Roush had swallowed a "large piece of sandwich, in fact a very, very large piece, and impaled it into the back of his throat and actually down into the proximal trachea." R. at 362. As a result, Roush was unable to inhale air into his lungs. According to Dr. Stoller, when a person swallows food, the epiglottis covers the glottis so that swallowed food travels down the esophagus rather than down the trachea. Roush swallowed the large piece of sandwich so quickly that the food arrived before the glottis could cover the epiglottis, which propelled the food into Roush's proximal trachea. Dr. Stoller noted the piece of sandwich "was just literally packed in there." Id. at 363.
Dr. Stoller opined that the food became lodged in Roush's throat because Roush failed to properly chew his food. Dr. Stoller also noted he could not see how Roush was able to get such a large amount of food in his mouth. Id. at 365. According to Dr. Stoller, Roush's manner of eating his sandwich and this particular choking incident could have happened anywhere. Id. at 366. On November 15, 1994, Roush died of cardiac dysrythmia caused by anoxic encephalopathy from asphyxiation as a consequence of the food being lodged in his upper airway.
Roush had a history of eating his food without chewing. Patty Olson, an I&M;employee, began working with Roush in October of 1986. She and Roush often ate lunch at their desks, so she had numerous opportunities to observe Roush's eating patterns over the course of eight years. Olson testified that Roush always ate his food rapidly. He would "eat a great deal, store it in his cheeks, store the food in his mouth, and then like wash it down with . . . whatever liquid he was drinking." Id. at 141. Olson spoke to Roush on occasion about the manner in which he ate. Roush responded by telling Olson "this is just the way I am." Id. Roush also choked at work while eating an apple in July 1992.
Roush's widow sought workers' compensation benefits. An award was entered in favor of Roush and against I&M;on February 28, 1997. On January 22, 1998, the Board entered a 5-1 decision affirming the award. The Board's Findings of Fact and Conclusions of Law were as follows:
1. It is further found that the basic facts surrounding the employee's death are not in conflict, including but not limited to the following:
"a. Ralph Roush ate and drank rapidly;
b. The evidence revealed only two prior choking incidents; one at work in 1992 and another described by Mrs. Roush;
c. The employer allowed employees to have food left over from parties and to eat at their workstations.
d. Ralph Roush w
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