Lee v. Oliger

• Decision Date: 23 May 1939
• Docket Number: 16366.
• Citation: 21 N.E.2d 65,107 Ind.App. 90
• Parties: LEE v. OLIGER.
• Court: Indiana Appellate Court

21 N.E.2d 65

107 Ind.App. 90

LEE v. OLIGER.

No. 16366.

Appellate Court of Indiana, in Banc.

May 23, 1939

John E. Osborn and Turner & Woodfill, all of Greensburg, for appellant.

Cooper Royse, Gambill & Crawford, of Terre Haute, for appellee.

DUDINE Judge.

This is an appeal from an award of the Industrial Board which denied appellant compensation.

The Full Industrial Board found "that on December 29, 1936 while in the employ of * * * (appellee) at an average weekly wage of $21.60 * * * (appellant) suffered an injury as the result of an accident arising out of and in the course of his employment. * * * That on December 20, 1937, * * * (appellant's) left eye was enucleated. * * * And the Full Industrial Board, by a majority of its members * * * (found) * * * that the enucleation of * * * (appellant's) left eye was not directly or indirectly the result of the accidental injury sustained by * * * (appellant) * * * on December 29, 1936."

Appellant has assigned as error on appeal that the award is contrary to law. Appellant contends that the evidence does not sustain the finding and that the evidence conclusively shows facts under which he was entitled to an award of compensation.

It was stipulated by the parties that "on the 29th day of December, 1936, * * * (appellant) was in the employ of * * * (appellee) at an average weekly wage of $21.60 and on said date * * * (appellant) met with an accident arising out of and in the course of his said employment * * *."

The evidence shows the "accident" was a "speck" of some foreign substance falling in appellant's left eye while he was painting a "sand finish" ceiling in a school room. This occurred on December 29, 1936. The foreign substance was removed by a doctor on December 31, 1936, two days after the accident. Another doctor examined the eye on September 6, 1937, more than eight months after the accident, and observed that an ulcer had developed. The ulcer at that time was "very large"; it covered the central portion of the cornea the eye was blind then and beyond chance of improvement, but the ulcer was still active. A third doctor examined the eye December 9, 1937, about eleven months after the accident, and found that the ulcer had become inactive and the eye was in such condition that he advised its enucleation as a protection to the right eye. The enucleation was performed December 20, 1937.

The doctor who examined the eye in September, 1937, after the ulcer had developed testified that the ulcer was due to an injury. Upon cross-examination he gave as a basis for that opinion the fact that "ulcers are due as a rule to injury and infection following."

The doctor who saw the eye in December, 1937, after the ulcer became inactive, testified that "it (the eye) had the appearance of an eye that had received an injury (from the outside)."

Both of said doctors testified in effect that said ulcer and enucleation of the eye could have been caused by a foreign substance falling in appellant's eye on December 29, 1936. Their opinion was based upon the supposition that the surface of the eye was broken by the foreign body, leaving defective tissue, and infection set in. They testified that the nature of an ulcer "is the breaking down of tissue assisted with infection of the tissue;" that the period of "incubation" of an ulcer is from thirty-six to seventy-two hours but "the duration of the process" resulting in an ulcer could be "two or three years."

Appellant testified that the eye pained him continually from the time of the accident on December 29, 1936, until the eye was removed on December 20, 1937; that the eye did not give him "any bother" before the accident and that he did not receive any injury of any kind to the eye after the accident. Said testimony was corroborated by other witnesses, and was not disputed by any evidence.

Appellant contends that the medical evidence conclusively shows that the ulcer was caused by an injury, that said evidence when considered with the evidence of continual pain from the date of the accident to the date of removal of the eye, and with the evidence that there was no other injury to the eye after said accident, all of which evidence is undisputed, established a claim for compensation.

In determining the sufficiency of the evidence to sustain the finding of the Industrial Board we must bear in mind the fact that appellant had the burden of proving every ultimate fact which was necessary to establish a claim for compensation. In order to justify a reversal of the award in the instant case on the ground of insufficiency of the evidence to sustain the...