Hirst v. Chevrolet Muncie Division of General Motors Corp.

• Decision Date: 05 May 1941
• Docket Number: 16671.
• Parties: HIRST v. CHEVROLET MUNCIE DIVISION OF GENERAL MOTORS CORPORATION.
• Court: Indiana Appellate Court

33 N.E.2d 773

110 Ind.App. 22

HIRST v. CHEVROLET MUNCIE DIVISION OF GENERAL MOTORS CORPORATION.

No. 16671.

Appellate Court of Indiana, in Banc.

May 5, 1941

Archie Lapin, of Muncie, for appellant.

Wm A. McClellan, of Muncie, and Sidney S. Miller and Harold H Bredell, both of Indianapolis, for appellee.

BLESSING Judge.

Appellant Doyle J. Hirst, filed his application for compensation against the appellee, Chevrolet Muncie Division of General Motors Corporation, under the Indiana Workmen's Occupational Disease Act (Acts 1937, ch. 69, p. 334) alleging that he is and was affected with the disease of bronchiectasis affecting his bronchial tubes and both lungs, due to fumes and dust inhaled in the course of his employment, resulting in total permanent disability.

The application was heard by a member of the board who made a finding and award that plaintiff take nothing by his complaint. There was an application for review by the full board. Upon the hearing the full board made a finding and award denying compensation, from which award this appeal is taken. The appellant assigns as error that the final order and award of the full board is contrary to law.

The full board after finding that in May of 1937, while in the employ of the defendant at an average weekly wage of thirty dollars, plaintiff became temporarily totally disabled and was disabled for a period of approximately two weeks; that plaintiff returned to his employment and worked intermittently to April, 1939, since which time plaintiff has been incapacitated; and that on September 13, 1938, plaintiff filed his application for the adjustment of a claim for compensation under the Indiana Workmen's Occupational Diseases Act, concluded its finding as follows: "And the Full Industrial, by a majority of its members, now finds for the defendant on plaintiff's application, that plaintiff's disability is not directly or indirectly the result of any occupational disease arising out of and in the course of his employment with the defendant".

Appellant Hirst went to work for appellee's factory in Muncie in November of 1936. He was placed in the "heat treat department" where he stayed until July of 1937, when, upon the request of a doctor, he was transferred to another department. In May of 1937 he had lost some work because of coughing and an irritated throat and nose. He was sent back to the heat treat department in November of 1937 but, after having lost more work due to illness, and upon the doctor's request, he was again transferred to a different department in December of 1937. He worked in the heat treat department for the last time in May, 1938. He then went to Arkansas for his health. He worked in the factory for a short time in the early part of 1939, but has been unable to work since then. The doctors who testified are all agreed that appellant is suffering from a bronchial trouble known as "bronchiectasis." Appellant contends that this condition was due to the fumes and dust in the heat treat department, but the Industrial Board made a finding that this condition did not arise out of and in the course of his employment with the appellee.

In addition to the briefs in this cause the court heard oral argument. It is the contention of appellant that the evidence submitted to the Industrial Board establishes that appellant is suffering from bronchiectasis, and that said disease was caused by fumes, gases and dust which appellant breathed while working in the heat treat department of the defendant during the time of his employment, and that there is no evidence in the record to sustain the contrary finding of the board. It is appellee's contention that the disease of bronchiectasis from which appellant is suffering and which incapacitated him for work was and is an aftermath of influenza from which appellee claims the appellant suffered sometime during the year of 1936.

This court...