Bendix Products Division v. Kolberg

• Decision Date: 28 February 1961
• Docket Number: No. 19499,No. 2,19499,2
• Citation: 133 Ind.App. 405,172 N.E.2d 589
• Parties: BENDIX PRODUCTS DIVISION, Appellant, v. Clarence H. KOLBERG, Appellee
• Court: Indiana Appellate Court

Page 589

172 N.E.2d 589

133 Ind.App. 405

BENDIX PRODUCTS DIVISION, Appellant, v. Clarence H. KOLBERG, Appellee.

No. 19499.

Appellate Court of Indiana, Division No. 2.

Feb. 28, 1961.

William A. Wick, Carl T. Reis, George C. Forrey III, Edward B. Raub, Jr., Jacob S. White, Indianapolis, for appellant.

Robert J. Mahoney, South Bend, for appellee.

GONAS, Judge.

Appellee filed a claim before the Industrial Board of Indiana, seeking an adjustment of Workmen's Compensation benefits for personal injuries allegedly received from an accident arising out of and in the course of his employment with appellant.

The Full Industrial Board found, inter alia, that on October 7, 1957, appellee sustained personal injuries by reason of an accident arising out of and in the course of his employment with appellant, of which injury, appellant had knowledge, and did not furnish statutory medical supplies, and that appellee is temporarily totally disabled on account of said accidental injury. The board entered an award consistent with its findings and this appeal followed.

Appellant assigns as error in this court, that the award of the Industrial Board is contrary to law, such assignment raises the question of the sufficiency of the evidence to sustain the findings of the board. It is not our station to weigh the evidence in reviewing the same, instead;

'* * * In considering the evidence in this case we are cognizant of the well-established rule that this court will not disturb a finding of fact made by the Industrial Board unless the evidence with all inferences reasonably deducible therefrom is of such conclusive nature to force a contrary conclusion.' Heflin v. Red Front Cash & Carry Stores, 1947, 225 Ind. 517, 75 N.E.2d 662, 664.

Appellee, seventy-one (71) years of age on the date of the injury involved in this controversy, was employed as an 'oiler' in appellant's plant. On October 7, 1957, appellee, while in the discharge of the duties of his employment, attempted to lift a fifty (50) gallon barrel of oil. Thereupon, he heard something snap inwardly, felt sensations in his left shoulder and became unconscious, or 'blanked out.'

Three doctors gave testimony, two by deposition and one orally, which testimony may be summarized most favorably to the appellee as follows:

Appellee had a physical ailment in 1955, which was diagnosed initially, as a malignant tumor, or an esophogeal hiatus hernia, subsequent diagnoses eliminated the possibility of a malignant tumor. This condition was found to be not disabling and appellee was advised by his doctor that he could return to work. Appellee was examined by a physician after the injury complained of here, and his ailment was found to be, without a doubt, a hiatus hernia. One doctor testified that this hernia could have been the result of an injury or a strain. Appellee was found to be completely disabled, and appellee's doctor advised him to have surgical repair of this hernia defect.

Appellant claims that the Industrial Board erred in overruling its objection to evidence of a physician on the ground that such physician had failed to furnish appellant a statement in writing of the condition of appellee, as provided in § 40-1227 Burns' 1952 Repl.

Appellee contends that the witness was not called to testify as a physician or surgeon, but merely as an x-ray technician. However, we do not find it necessary to enter upon such contentions.

If there is sufficient competent testimony in the record to sustain the findings of the board, without the aid of the testimony objected to, the award of the board will be sustained. Assuming without deciding that the board could have properly sustained appellant's objection, the failure to do so was not harmful to appellant, for there was other evidence in the record, from which the board could have found the factual foundation for allowance of compensation benefits to appellee. Iohnson v....