Mogul Rubber Co. v. Spicher

• Decision Date: 20 March 1968
• Docket Number: No. 1,No. 767A25,767A25,1
• Citation: 142 Ind.App. 365,234 N.E.2d 862
• Parties: MOGUL RUBBER COMPANY, Appellant, v. Nelson SPICHER, Appellee
• Court: Indiana Appellate Court

Page 862

234 N.E.2d 862

142 Ind.App. 365

MOGUL RUBBER COMPANY, Appellant, v. Nelson SPICHER, Appellee.

No. 767A25.

Appellate Court of Indiana, Division No. 1.

March 20, 1968.

Stewart, Irwin, Gilliom, Fuller & Meyer, Richard W. Guthrie, Indianapolis, for appellant.

Pepple, Yoder & Ainlay, John D. Ulmer, Goshen, for appellee.

FAULCONER, Judge.

Appellant, Mogul Rubber Company, brings this appeal to review an award of the full Industrial Board of Indiana which granted compensation for disability, permanent impairment and medical expenses to the appellee, Nelson Spicher, an employee of appellant. The application for compensation to the Board alleged that the appellee contracted an occupational disease during the period he was employed by the appellant. The Board's findings concluded that appellee was exposed to and subsequently contracted an occupational disease known as anthrasilicosis during his employment; that as result of this disease appellee was temporarily totally disabled; and that the disease reached a permanent state resulting in a 25% permanent partial impairment to the appellee as a whole.

Appellant first argues that the award of the Board is not supported by any evidence and is thus contrary to law. We must of course look to the evidence most favorable to the appellee in order to determine whether there was sufficient evidence to support the findings and award of the board.

The record in this cause discloses that the appellee had worked in various capacities during his employment with appellant. The last job that appellee was engaged in before leaving because of his illness, consisted of working in the press room where rubber is cured. In the curing process, a type of fine white powder (talc dust) called soapstone is used as a lubricant to keep the rubber from sticking. Appellee testified that he worked with this powder and it made the area dusty and accumulated on the floor. During the period that appellee was working in the press room, he began feeling weak and very tired. He also had difficulty in breathing properly. Thereafter a chest x-ray was taken and a lung biopsy was performed. The diagnosis by the expert witnesses produced by the appellee was that appellee had anthrasilicosis which is a disease of the lungs usually caused by an exposure to talc dust, the kind of material with which the appellee was working. The appellant produced no witnesses nor evidence of any kind to contradict this diagnosis.

'In order to justify a reversal of the award on the ground of insufficiency of the evidence to support the award, the evidence has to be so conclusively in favor of appellant that it could not reasonably be construed to give rise to inferences favorable to appellee.' Hughes v. Fayette Realty & Development Co. (1934), 99 Ind.App. 310, 312, 192 N.E. 322.

Furthermore, 'if there is any competent evidence in the record which supports the award, the award will not be reversed on account of the insufficiency of the evidence.' Dugan v. Sheller Mfg. Co. (1938), 106 Ind.App. 13, 15, 17 N.E.2d 471.

We have reviewed the evidence in this case, the majority of which has been set forth previously, and are of the opinion that there is sufficient evidence of probative value from which the Board could have...