Armes v. Pierce Governor Co.

• Decision Date: 19 October 1951
• Docket Number: No. 18202,18202
• Citation: 121 Ind.App. 566,101 N.E.2d 199
• Parties: ARMES v. PIERCE GOVERNOR CO., Inc.
• Court: Indiana Appellate Court

Page 199

101 N.E.2d 199

121 Ind.App. 566

ARMES v. PIERCE GOVERNOR CO., Inc.

No. 18202.

Appellate Court of Indiana, in Banc.

Oct. 19, 1951.

Fansler, Fauvre, Young & Chambers, Indianapolis, for appellant.

J. Emmett McManamon, Atty. Gen., Walter O. Lewis, Deputy Atty. Gen., (J. Hurley Drake, Indianapolis, of counsel), amici curiae.

No brief filed for Pierce Governor Co.

BOWEN, Judge.

This is an appeal from an order of the full Industrial Board denying the petition of appellant to set aside and vacate a previous order which had been entered denying appellant compensation from the so-called 'second injury fund,' as provided in the Indiana Workmen's Compensation Act, § 40-1308, Burns' Pocket Supplement; Acts 1929, ch. 172, § 33a, as added by Acts 1949, ch. 250, § 1, p. 848.

The appellant suffered an injury to his left eye in an accident arising out of and in the course of his employment with the Pierce Governor Company, Inc. A report of such injury and accident was filed with the Industrial Board, and the said employer filed an agreement for compensation whereby appellant was to receive $23.10 per week until such disability terminated. Subsequently, the appellant filed an affidavit requesting a lump sum settlement for the injury to his left eye, and a supplemental agreement was entered into between the appellant and his employer by and through the insurance carrier and its attorney, which agreement was approved by the Industrial Board and provided for payment for temporary total disability for appellant's permanent loss of sight of the left eye. Three days after the approval of this agreement by the Industrial Board, the attorney for the insurers of the employer filed a claim for compensation for appellant from the 'second injury fund.' In such petition, it was alleged that the appellant, since childhood, had been industrially blind in his right eye, and that since the time of the injury to his left eye, in the employment of The Pierce Governor Company, Inc., he has been and is industrially blind, and submitted in such petition the report of the employer's physician, Dr. E. O. Alvis, eye specialist, which report certified that any work by appellant in an industrial plant would be hazardous. Such petition requested an award of additional compensation for total permanent impairment out of the 'second injury fund.' Such petition also contained the final report and bill of the Industrial Board's surgeon, Dr. Joseph Larrimore, showing the nature of the services performed for appellant.

Thereafter, on October 16th, the Industrial Board, through its hearing member, ordered appellant to be examined by one Dr. John R. Flick. On October 21st, Dr. Flick made a written report to the board. He did not appear before the board, and the board did not provide for a notice to the appellant of a time or place where the doctor's testimony would be heard. No request was made on behalf of the appellant for the cross-examination of this doctor, and he was not cross-examined concerning such report. His written report was as follows:

'(Stamp)

'Filed Oct 23, 1950

'Industrial Board of Indiana

'Oct. 21, 1951

'Industrial Board of Indiana

'Re: John R. Armes

'Dear Sirs:

'Pursuant to your order this patient was seen in my office Oct. 20, 1950 at 1:00 p. m. He stated at that time that he had received an injury to the left eye on May 12, 1949 while employed at the Pierce Governor Co., Anderson, Indiana.

'According to his history he was struck in the eye by a flying piece of metal of sufficient size to protrude from the front of the eyeball. He was seen in turn by the first aid nurse, Dr. Larramore, and Dr. Edwin C. Dyar. The two latter took him to surgery, removed the protruding piece of metal and attempted to repair the large laceration of the front of the eyeball. They gave him a very poor prognosis of the eye at that time. Following this his eye healed but a cataract developed, further worsening his vision. On Dec. 10, 1949, a cataract extraction was done on the left eye. Following this second operation the vision in the eye became somewhat better.

'The patient states that vision of the right eye has been poor since age four when the fact was discovered in a school examination. He also states that at no time since his first injury has he been able to do any useful work or even to get around unaided.

'Examination revealed visual acuity of less than 20/400 right eye with plus 6.00 sphere; 20/40-2 with plus 12.25 plus 175 cyl ax 90 left eye. Intraocular tension was normal in both eyes tonometrically. Neither fundus showed any remarkable pathology. Refraction improved the vision of the right eye to 20/100 with minus 75 plus 6.50 cyl ax 105. The left eye could not be improved above 20/40.

'Diagnosis: Right eye, amblyopia due to high anisometropia.

'Left eye, aphakia, traumatic.

'The facts in this case seem to be clear enough as regards the pathology existing and the cause-effect relationships. The uncertainty in dealing with its disposition lies in the factors of individual variation.

'This man has a corrected vision of 20/40 or thereabouts and considers himself unfit for any employment. I have a patient from that same town who has two aphakic eyes with nystagmus and a corrected vision of less then 20/200 but who will scarcely admit a handicap, holds a good job supporting a wife and child. We are often in medicine forced to the conclusion that it is not what a man has that counts but what he does with it. That this man is unable to overcome his handicap is obvious, that he cannot be forced to is also obvious.

'A precise statement of impairment in any case of aphakia of one eye is often very difficult for an oculist to make. I consider that this man has had excellent treatment and that he is very fortunate to have retained the vision of his eye.'

Following the receipt of the report of this physician appointed by the Industrial Board on December 7, 1950, without hearing any additional evidence, and on the basis of the aforementioned medical reports, the board, by and through its hearing member, denied appellant's claim for compensation out of this special fund known as the 'second injury fund.' No appeal was filed to the full board, nor was any request presented on behalf of the appellant to appeal to the full board, nor to present additional evidence, nor were any further steps taken on behalf of the appellant.

On January 23, 1951, after the time for appeal to the Full Industrial Board had expired, the appellant appeared by his subsequent attorney of record in this appeal, and filed a petition to set aside and vacate the order of the hearing member of December 7, 1950, and prayed that his claim be set down for a new hearing for the consideration of additional evidence. On February 5, 1951, the appellee filed its affirmative answer admitting that the appellant was industrially blind, and consenting to an award to the appellant from the said 'second injury fund.' Such petition contained the following words:

'In answer to said petition and in order that the Industrial Board of Indiana may be advised, the defendant The Pierce Governor Company avers that the plaintiff herein had been in the employ of the defendant for a long period of time. That he was an excellent employee, and that his work was entirely satisfactory in all things, although the plaintiff had been blind in his right eye since birth.

'Defendant further answers that since the accident on May 12th, 1949, by virtue of which the plaintiff became industrially blind in his left eye, he has been unable to do any work whatever because of his lack of vision. That management of the defendant in its effort to assist the plaintiff caused a survey of its plant to be made in an effort to find a job which the plaintiff could do, despite his impaired vision, but that after weeks of surveillance by management of the defendant, such management concluded, and now believes, that the plaintiff is industrially blind and unable to do and perform any work.

'The defendant further avers that because of the...