Earhart v. Cyclone Fence Co.

• Decision Date: 18 November 1936
• Docket Number: 15732.
• Citation: 4 N.E.2d 571,102 Ind.App. 634
• Parties: EARHART v. CYCLONE FENCE CO.
• Court: Indiana Appellate Court

4 N.E.2d 571

102 Ind.App. 634

EARHART v. CYCLONE FENCE CO.

No. 15732.

Appellate Court of Indiana, in Banc.

November 18, 1936

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Ray Earhart employee, opposed by the Cyclone Fence Company, employer wherein the employee obtained an award of compensation. From an order of the Industrial Board terminating compensation on the petition of the employer, the employee appeals.

Order set aside, with instructions.

Connor D. Ross, of Indianapolis, for appellant.

White Wright & Boleman, of Indianapolis, and Knapp, Beye, Allen & Cushing and Joseph L. Earlywine, all of Chicago, Ill., for appellee.

WOOD Presiding Judge.

This is the second appeal of this case. For opinion and judgment of this court on the first appeal, see Earhart v. Cyclone Fence Co. (May 31, 1934) 99 Ind.App. 48, 190 N.E 558.Pursuant to the judgment entered at that time, reversing the award of the full Industrial Board, with instructions to enter an award in favor of appellant for total disability, on July 3, 1934, the Industrial Board did enter an award allowing appellant compensation at the rate of $16.50 a week for 303 plus weeks beginning January 6, 1933, for total disability caused by right and left inguinal hernias, resulting from an accident arising out of and in the course of his employment by appellee.

August 24, 1934, appellee filed an application for a review of this award, on account of a change in conditions, in which it was alleged among other things that, " the disability of said employee on account of said injury has diminished since the date of said award and that the award is a fraud upon your petitioner and it was rendered by a mistake of fact." This application was heard before a single member of the board, and thereafter, to wit, on May 15, 1935, after a hearing by the full board it entered an order that the appellee should offer appellant an operation for the correction of the bilateral hernia from which he was suffering. This offer was accepted by appellant and on July 2, 1935, he submitted to said operation, was in the hospital 21 days, when he was returned to his home in Greensburg.

September 20, 1935, the appellee filed a second application for a modification of the original award on account of change in conditions, alleging that the disability from which the appellant was suffering had ended since the date of said award. On a hearing of this application, before the full board, it found as a result of said surgical operation that the bilateral hernia from which appellant had been suffering had been corrected and that his disability ended on October 25, 1935, and an order was entered terminating compensation as of that date.

From this award appellant appeals,...