Hilltop Concrete Corp. v. Roach, No. 2-1175A350

Docket NºNo. 2-1175A350
Citation366 N.E.2d 218, 174 Ind.App. 100
Case DateAugust 24, 1977
CourtCourt of Appeals of Indiana

Page 218

366 N.E.2d 218
174 Ind.App. 100
HILLTOP CONCRETE CORPORATION, Appellant (Defendant below),
v.
Deverett Leroy ROACH, Appellee (Plaintiff below).
No. 2-1175A350.
Court of Appeals of Indiana, In Bank.
Aug. 24, 1977.

[174 Ind.App. 101]

Page 219

Thomas J. Reed, Reller, Mendenhall, Kleinknecht & Milligan, Richmond, for appellant (defendant below).

William R. Wilson, Wilson & Hoffman, Lawrenceburg, Bobby Jay Small, Indianapolis, for appellee (plaintiff below).

BUCHANAN, Judge.

CASE SUMMARY

Hilltop Concrete Corporation (Hilltop) appeals from an award of compensation entered by the Full Industrial Board of Indiana (Board) in favor of Deverett Leroy Roach (Roach), claiming the finding of permanent partial impairment is contrary to law, the award of medical expenses was improper, and the Board abused its discretion by refusing to order Roach examined by a disinterested physician.

We affirm.

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FACTS

The evidence most favorable to the award below reveals the following:

On September 28, 1972, Roach suffered an industrial accident at Hilltop. As a result he experienced extreme back, abdominal and chest pain, and had to be hospitalized for five days with a crushed chest.

A jaundiced condition accompanied by severe abdominal pain necessitated a fifteen day rehospitalization a week later . . . a biopsy revealing a liver obstruction causing bile to collect in the liver.

Following discharge Roach's jaundice condition did not abate, however, and his weight continued to decrease. Consequently, he [174 Ind.App. 102] underwent surgery in December, 1972. That surgery revealed a complete obstruction of the bile duct by scar adhesions and residue as a result of his crushing injury and widespread laceration of the liver.

Roach's physician, Dr. Scudder, indicated that the liver was scarbound, producing an almost cirrhosis-like condition, causing Roach to suffer a seventy-five (75%) percent permanent disability.

Following this month long hospitalization, Roach's recovery was limited. Roach, his wife, and his previous foreman gave testimony on his permanently weakened condition . . . he was unable to engage in any extended or strenuous activity, suffered abnormally from cold weather, became forgetful, suffered continuous abdominal and chest pains, and never regained his original weight.

Roach returned to employment with Hilltop in July of 1973; however, even the minimal duties he was assigned exhausted him. He finally terminated his employment with Hilltop in September of 1973 to supervise running the family farm.

Roach was again hospitalized for three days in February of 1974 (the 1974 hospitalization) for severe abdominal pains, with an elevated alkaline phosphate level indicating continuing scarring action in the liver as a result of the crushing injuries earlier suffered.

Dr. Scudder testified that this condition would result in a reduced life span of fifteen (15) or twenty (20) years, poor digestion, continuing weight loss, and an inability to maintain strength in order to perform work. He also found that the 1974 hospitalization was connected with his original injury (acute pyloric spasms were related to the small bowel contusions originally suffered).

Following the 1974 hospitalization, Roach continued to suffer pain and other symptoms predicted by Dr. Scudder.

On August 3, 1974, Roach filed his Form 9 application; and a hearing was held before the Single Hearing Member on March 6, 1975. At that hearing, Dr. Scudder testified extensively on [174 Ind.App. 103] Roach's condition and was fully cross-examined by Hilltop. Although Hilltop had previously received Dr. Scudder's medical reports later claimed to be incomplete, Hilltop never objected to Dr. Scudder's right to testify or any aspect of his testimony.

Four days after the hearing, Hilltop made application for the appointment of a disinterested physician to examine Roach.

On July 3, 1975, Hilltop's application for a disinterested physician was denied, and Roach was granted an award for permanent partial impairment of seventy-five (75%) percent of the body as a whole and medical expenses arising out of the 1974 hospitalization.

Hilltop made application on July 16, 1975, for review by the Full Industrial Board of the Single Hearing Member's award, and on August 11, 1975, the Board gave notice of its hearing to be held on September 8, 1975.

On August 22, 1975, Hilltop made application for a continuance because it had retained a specialist to examine Roach, who could not make his examination before the hearing date.

The Board denied Hilltop's petition for a continuance on September 8, 1975, and held its hearing on that date as scheduled.

On October 30, 1975, the Board entered an award for Roach, the same in substance as that of the Single Hearing Member.

Page 221

ISSUES

Hilltop poses three issues for review:

ISSUE ONE: Did the Board abuse its discretion by denying Hilltop a continuance for the purpose of having Roach examined by Hilltop's physician and failing to order on its own that Roach be examined by a disinterested physician?

ISSUE TWO: Was there substantial, competent evidence to support the finding that Roach suffered a permanent partial impairment of seventy-five (75%) percent of the body as a whole?

[174 Ind.App. 104] ISSUE THREE: Was there a sufficient connection between Roach's accident and medical problems necessitating the 1974 hospitalization to permit the Board to award medical expenses to Roach for that hospitalization?

PARTIES CONTENTIONS The contentions of the parties on the above issues will be discussed with each issue separately.

DECISION
ISSUE ONE

CONCLUSION The Board did not abuse its discretion by denying Hilltop a continuance for the purpose of having Roach examined by Hilltop's physician or failing to order on its own that Roach be examined by a disinterested physician.

Hilltop's attack centers on the testimony of Dr. Scudder, claiming his testimony was incompetent and should have been excluded as violative of Indiana Code section 22-3-3-6 (section 6) which, in pertinent part, imposes a general duty on the employee's (Roach's) physician to apprise the employer of his medical findings and provides for sanctions (exclusion of the physician's testimony) in the event of the physician's failure to do so. 1

[174 Ind.App. 105] Hilltop concludes that the resultant nature of Dr. Scudder's testimony, along with the fact it centered on examination of Roach one year before the hearing, compelled the Board to grant Hilltop's motion for a continuance, or to order on its own an examination of Roach by a disinterested physician. When the Board denied Hilltop a continuance and ordered no independent examination of Roach, Hilltop contends the Board abused its discretion and committed reversible error.

The Board is necessarily vested with wide discretion in deciding whether to appoint on its own a disinterested physician and hear additional testimony beyond the record of the Single Hearing Member before it. 2 In deciding whether to hear additional

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evidence, "its action will not be disturbed on appeal unless the record shows an abuse of discretion." 3

Because Hilltop's abuse of discretion argument relies on allegedly faulty medical reports improperly considered by the Single Hearing Member, we are unable to intelligently review the Board's discretion as we do not have before us the reports of Dr. Scudder which the Board had to evaluate for compliance with section 6. There are reports attached as appendices to Hilltop's brief, many of which are so poorly reproduced as to be unreadable.

Thus, although section 6 is exact as to the required content of a physician's report, we could not say with certainty the reports (before us) were so faulty that a Board would have been compelled [174 Ind.App. 106] to exclude the evidence based on Dr. Scudder's testimony had the question been expeditiously raised.

The propriety of Dr. Scudder's testimony was not timely challenged by Hilltop, though. Section 6 appears to burden the party seeking to avail himself of the enumerated sanctions with taking positive action. This sanction, "such physician or surgeon shall not be permitted to testify," necessarily implies a requirement that someone object to the physician's testimony at the earliest possible time.

In the proceedings before the Single Hearing Member, Hilltop never objected to the testimony of Dr. Scudder but instead fully and adequately cross-examined him on his findings and conclusions. Hilltop likewise never made a motion to strike such testimony during the hearing, or thereafter. 4

[174 Ind.App. 107] Rather, Hilltop chose to attempt to rebut Dr. Scudder's testimony by petitioning four days after the hearing for the appointment of a disinterested physician to examine Roach hardly a timely objection to Dr. Scudder's testimony.

The peril of failing to adequately and timely object to evidence before the Single Hearing Member has been discussed in Indiana:

As to the objections claimed to have been "renewed" in appellant's motion, we find that the record does not show they were made before the Hearing Member

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at any time during the hearing . . .. These were not renewals of objections therefore, but were objections being made for the first time before the Full Board. In...

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6 practice notes
  • Duncan v. George Moser Leather Co., No. 2-479A112
    • United States
    • Indiana Court of Appeals of Indiana
    • August 28, 1980
    ...contentions. Martin v. Monsanto Co., (1975) 166 Ind.App. 5, 333 N.E.2d 828. In Hilltop Concrete Corp. v. Roach, (1977) Ind.App., 366 N.E.2d 218, 224, Judge Buchanan (now Chief Judge) "It is the Board which has the duty to find the nature and extent of a claimant's injury and to grant the ap......
  • Morphew v. Morphew, No. 1-880A216
    • United States
    • Indiana Court of Appeals of Indiana
    • April 23, 1981
    ...507; Bethlehem Steel Corp. v. Dipolito, (1976) 168 Ind.App. 417, 344 N.E.2d 67; and Hilltop Concrete Corp. v. Roach, (1977) Ind.App., 366 N.E.2d 218. We would agree with Jacqueline that these cases support the proposition that a lay witness may testify about the extent and character of his ......
  • Coachmen Industries, Inc. v. Yoder, No. 2-1179A357
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1981
    ...the award, we affirm. Penn-Dixie Corp. v. Savage, (1979) Ind.App., 390 N.E.2d 203; Hilltop Concrete Co. v. Roach, (1977) Ind.App., 366 N.E.2d 218. With these principles in mind, we consider Coachmen's claim of reversible error. Two primary sections in the Workmen's Compensation Act govern t......
  • Goins v. Lott, No. 2-681A189
    • United States
    • Indiana Court of Appeals of Indiana
    • May 26, 1982
    ...of the Board. Martinez v. Taylor Forge & Pipe Works, (1977) 174 Ind.App. 514, 368 N.E.2d 1176; Hilltop Concrete Corp. v. Roach, (1977) 174 Ind.App. 100, 366 N.E.2d 218. Applying this standard of review to the evidence in this case, we must conclude the finding that Craig was Ezell's biologi......
  • Request a trial to view additional results
6 cases
  • Duncan v. George Moser Leather Co., No. 2-479A112
    • United States
    • Indiana Court of Appeals of Indiana
    • August 28, 1980
    ...contentions. Martin v. Monsanto Co., (1975) 166 Ind.App. 5, 333 N.E.2d 828. In Hilltop Concrete Corp. v. Roach, (1977) Ind.App., 366 N.E.2d 218, 224, Judge Buchanan (now Chief Judge) "It is the Board which has the duty to find the nature and extent of a claimant's injury and to grant t......
  • Morphew v. Morphew, No. 1-880A216
    • United States
    • Indiana Court of Appeals of Indiana
    • April 23, 1981
    ...507; Bethlehem Steel Corp. v. Dipolito, (1976) 168 Ind.App. 417, 344 N.E.2d 67; and Hilltop Concrete Corp. v. Roach, (1977) Ind.App., 366 N.E.2d 218. We would agree with Jacqueline that these cases support the proposition that a lay witness may testify about the extent and character of his ......
  • Coachmen Industries, Inc. v. Yoder, No. 2-1179A357
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1981
    ...the award, we affirm. Penn-Dixie Corp. v. Savage, (1979) Ind.App., 390 N.E.2d 203; Hilltop Concrete Co. v. Roach, (1977) Ind.App., 366 N.E.2d 218. With these principles in mind, we consider Coachmen's claim of reversible error. Two primary sections in the Workmen's Compensation Act govern t......
  • Goins v. Lott, No. 2-681A189
    • United States
    • Indiana Court of Appeals of Indiana
    • May 26, 1982
    ...the Board. Martinez v. Taylor Forge & Pipe Works, (1977) 174 Ind.App. 514, 368 N.E.2d 1176; Hilltop Concrete Corp. v. Roach, (1977) 174 Ind.App. 100, 366 N.E.2d 218. Applying this standard of review to the evidence in this case, we must conclude the finding that Craig was Ezell's biolog......
  • Request a trial to view additional results

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