Pike County Highway Dept. v. Fowler

• Citation: 180 Ind.App. 438,388 N.E.2d 630
• Decision Date: 01 May 1979
• Docket Number: No. 2-1278A454,2-1278A454
• Parties: PIKE COUNTY HIGHWAY, Defendant-Appellant, v. Troy V. FOWLER, Plaintiff-Appellee.
• Court: Court of Appeals of Indiana

Page 630

388 N.E.2d 630

180 Ind.App. 438

PIKE COUNTY HIGHWAY, Defendant-Appellant, v. Troy V. FOWLER, Plaintiff-Appellee.

No. 2-1278A454.

Court of Appeals of Indiana, First District.

May 1, 1979.

Robert A. Fanning, Locke, Reynolds, Boyd & Weisell, Indianapolis, for defendant-appellant

Jack N. VanStone, Rice & VanStone, Evansville, for plaintiff-appellee.

LOWDERMILK, Presiding Judge.

STATEMENT OF THE CASE

Defendant Pike County Highway Department seeks judicial review of the award by the Full Industrial Board of Indiana in favor of Plaintiff Troy V. Fowler. Defendant Highway Department challenges (1) the admission and consideration of certain expert, medical opinion testimony and (2) the sufficiency of the evidence to support the Board's findings of fact relating to the cause of Fowler's disability.

We affirm.

FACTS

The facts most favorable to the award by the Full Industrial Board are that on March 21, 1975, Troy V. Fowler was employed by the Pike County Highway Department and was engaged in repairing a bridge. Fowler and other workers were carrying a wooden plank weighing approximately 250 to 300 pounds when the plank slipped out of Fowler's hands and struck him on the top of his left foot.

The following Monday, March 24, 1975, Fowler sought medical treatment from his family physician, Dr. Elbert, an osteopath, because he was suffering pain, numbness, and discoloration in his left foot. The osteopath found severe vascular damage in the left foot with a great amount of hemorrhaging as a result, and he believed the foot was fractured. He sent Fowler to a general surgeon who had the foot X-rayed, but no fracture was found. Dr. Elbert examined Fowler's foot again on March 31 and May 27, and he observed little change in the condition of the foot. He referred Fowler to an orthopedic surgeon, who, in turn, referred Fowler to Dr. Nachtnebel, a general surgeon with experience in vascular surgery. Dr. Elbert saw Fowler once more, on July 11, 1975, before Fowler consulted Dr. Nachtnebel. At that time Dr. Elbert believed that the toes of Fowler's left foot were beginning to show gangrene. He had been Fowler's physician for approximately 25 years and had never known Fowler to be seriously ill or to have any circulatory problems prior to the injury to Fowler's foot. Moreover, Fowler himself said that he had never had any problems with his circulation, legs, or feet.

Dr. Nachtnebel believed that Fowler was experiencing an "arterial insufficiency" in his lower left leg when he first examined him on July 11, 1975. A left femoral arteriogram disclosed a complete obstruction of Fowler's superficial femoral artery. Dr. Nachtnebel felt that Fowler was exhibiting "pre-gangrenous or impending gangrenous changes." On July 22 he performed a bypass graft of a vein onto an artery in Fowler's left thigh. For a few months Fowler's condition was improved, but by November of 1975 his leg began to get cold. Dr. Nachtnebel found an occlusion of the bypass graft, and on about November 18 he performed another bypass operation, this time using a Dacron prosthesis instead of a vein graft. Shortly thereafter another occlusion occurred, and on December 30, 1975, the surgeon amputated Fowler's foot and lower leg.

From March 22, 1975, through March 13, 1976, Fowler received compensation benefits for temporary total disability under an agreement with the Highway Department which was approved by the Industrial Board. Thereafter the Highway Department ceased to pay such benefits, and after an impasse in negotiations between the parties, Fowler filed with the Industrial Board " * * *rd

an application for adjustment of his claim. After a hearing before a hearing member and a review by the Full Industrial Board, the Board found in favor of Fowler and entered an award of compensation on November 28, 1978. In granting its award the Board made the following determinations:

That on the 21st day of March, 1975, Plaintiff herein was in the employ of the Defendant herein as a truck driver-laborer . . . that on said date, Plaintiff sustained personal injury by reason of an accident arising out of and in the course of his employment with Defendant while carrying a bridge plank, which fell on his left foot, of which said accident and injury the Defendant had knowledge and did furnish and pay for at least part, if not all, of the statutory medical attention and supplies; that Plaintiff's said accidental injury consisted of a severely mashed foot which later developed pre-gangrenous or impending gangrenous changes, resulting in the subsequent amputation of Plaintiff's left leg below the knee; that, thereafter, on the 16th day of April, 1975, the Industrial Board of Indiana approved a compensation agreement entered into by and between the parties under the terms of which Defendant paid Plaintiff compensation benefits for his temporary total disability as a result of his said accidental injury. . . .

It is further found that Plaintiff's said accidental injury has reached a permanent and quiescent state and that as a result of his said accidental injury, Plaintiff has sustained the amputation of his left lower extremity below the knee.

* * * "the

The Highway Department seeks a judicial review of the evidentiary basis of the Board's award.

ISSUES

1. Whether or not the Industrial Board's consideration of the opinion testimony of Dr. Elbert is contrary to law.

2. Whether or not the Industrial Board's finding that the accidental injury to Fowler's foot resulted in gangrenous changes which, in turn, resulted in the amputation of Fowler's leg is contrary to law or unsupported by the evidence.

3. Whether or not the Industrial Board's finding that Fowler's leg was amputated as a result of the accidental injury is against the weight of the evidence and influenced by improper considerations.

DISCUSSION AND DECISION

Issue One

The Highway Department alleges error in the admission and consideration of expert testimony given by Dr. Elbert, the osteopath who examined and treated Fowler after his injury occurred. In particular, the Highway Department focuses on the following excerpt from a deposition of Dr. Elbert taken by Fowler for use as substantive evidence in his case:

" * * *rpt

Q. 36 Now I've furnished you with a copy of the deposition of Dr. Knachnabel (Nachtnebel).

A. Yes, Dr. Knachnabel (Nachtnebel) and I've read it over.

Q. 37 You've seen Troy Fowler since his leg has been amputated?

A. Yes.

Q. 38 Is there a relationship between the injury that he first told you about on the first day and the amputation of his leg?

MR. FANNING: To which we would object on the grounds that no foundation for this opinion testimony has been laid. This doctor has stated that he last examined the patient on July 11, 1976 (1975) and a reliance on other information would be clearly reliance on hearsay. A proper foundation has not been laid for this type of opinion evidence.

MR. VanSTONE: Go ahead.

A. I feel that actually the man of course has been always in reasonably good health. I think you'd have to presume that first. He's never had any areas of thrombophlebitis or circulatory disturbance in his entire body. All of a sudden we have this rather severe injury and here we end up with obviously a circulatory disturbance to the disturbed that he lost his foot (sic). I would have to say that I must relate it in some way to the accident.

Q. 39 Then it would be your opinion that the accident was a precipitating cause of the loss of his leg?

MR. FANNING: To which we would object on the same grounds and on the further grounds that if the intent here is to pose a question by way of hypothetical, that the hypothetical is incomplete in that it fails to include material facts which are in evidence. Further is incomplete in that it fails to illicit (sic) the doctor's response based upon a reasonable degree of medical certainty. For the further reason that any response which this doctor would have would be purely speculative in that he did not examine the patient following July of 1976 (1975), and that all the evidence will show that all surgery was performed after that date, July 11, 1976 (1975).

A. I felt that the injury was related. The loss of the amputation was certainly related to the injury.

Q. 40 What did you base that opinion upon?

MR. FANNING: To which we would object for the same reasons as stated before.

A. Well, we know that anytime you have trauma or any time you even have major surgery there's always that possibility of having a thrombosis or embolus set up in the blood vessel just because of injury to the blood vessel.

Q. 41 Did you take into consideration the fact that he had been a patient of yours for a good number of years?

A. Yes. I actually to the insurance company I never charged him anything (sic).

Q. 42 Did you also take into consideration the various examinations that you have made of Mr. Fowler following his injury?

MR. FANNING: Please note a continuing objection to this line of questioning for the reasons stated above.

A. Yes, of course. I saw him as I say, basic examination. I remember my treatment was prescribed at the very first visit and as far as I know he carried on only that treatment. There was pain pills which was Darvon and the other treatments were carried on I presume right up until 7-11.

Q. 43 Also from your reading the deposition of Dr. Knachnabel (Nachtnebel)?

A. Yes.

* * * " (Our insertions)

The Highway Department argues that counsel for Fowler failed to establish a foundation and state a proper hypothetical question before eliciting Dr. Elbert's opinion on the cause of the amputation of Fowler's leg. The Highway Department says that Dr. Elbert had no personal knowledge of Fowler's condition, treatment, or surgery after he examined Fowler on July 11, 1975, and that an expert witness in Indiana cannot base his opinion upon his recollection and construction of the evidence, citing Ditton v. Hart, (1911) 175 Ind. 181, 93 N.E. 961; Craig v....