Shaffer v. Indiana Gas & Chemical Corp.

• Decision Date: 08 September 1965
• Docket Number: No. 1,No. 20299,20299,1
• Parties: Lester SHAFFER, Appellant, v. INDIANA GAS AND CHEMICAL CORPORATION, Appellee
• Court: Indiana Appellate Court

Page 919

209 N.E.2d 919

137 Ind.App. 471

Lester SHAFFER, Appellant, v. INDIANA GAS AND CHEMICAL CORPORATION, Appellee.

No. 20299.

Appellate Court of Indiana, Division No. 1.

Sept. 8, 1965.

[137 INDAPP 471]

John A. Kesler, Terre Haute, for appellant.

James V. Donadio, Indianapolis, Stanley Stohr, Terre Haute, Geoffrey Segar, Indianapolis, Ice, Miller, Donadio & Ryan, Indianapolis, of counsel, for appellee.

FAULCONER, Judge.

Appellant, Lester Shaffer, was denied compensation by the Hearing Member of the Industrial Board which denial was sustained, upon review, by the Full Industrial Board of Indiana. The pertinent findings and award of the Full Industrial Board are as follows:

'The full Industrial Board having heard the [137 INDAPP 472] arguments of counsel, having reviewed all the evidence in said cause, and being duly advised in the premises therein, now finds:

'That on April 4, 1962, plaintiff was in the employ of the defendant at an average weekly wage in excess of the maximum; that on said date plaintiff did not sustain an accidental injury arising out of and in the course of his employment with defendant herein; that on said date plaintiff was suffering from a heart condition, which said condition is wholly unrelated to his employment with the defendant herein.

'The full Industrial Board of Indiana now finds for the defendant and against the plaintiff on plaintiff's Form 9 application for the adjustment of claim for compensation, filed with the Industrial Board December 20, 1962.

'AWARD

'IT IS THEREFORE CONSIDERED ORDERED AND ADJUDGED by the full Industrial Board of Indiana that plaintiff herein take nothing on his Form 9 application for the adjustment of claim for compensation, filed December 20, 1962, and plaintiff shall pay all costs, if any, taxed in said cause.'

Appellant properly assigns as error that 'the Award of the Full Board is contrary to law.'

The finding of fact by the Industrial Board is binding upon this court unless unsupported by any evidence of probative value. Blue Ribbon Pie Kitchens v. Long (1952), 230 Ind. 257, 260, 103 N.E.2d 205; Crown Products Co. v. Brandenburg (1955), 126 Ind.App. 48, 55, 129 N.E.2d 134, 130 N.E.2d 73; Tromley v. Padgett & Blue, Inc. (1955), 125 Ind.App. 688, 690, 125 N.E.2d 808. (Transfer denied.)

This being a negative finding against the appellant who had the burden of proof, the question to be decided[137 INDAPP 473] is whether the evidence entitled him to relief which was denied him by the award. Wright v. Peabody Coal Co. (1948), 225 Ind. 679, 681, 77 N.E.2d 116.

'The award of the board cannot be set aside in this case unless all the evidence is undisputed and not contradicted and leads inescapably to the sole conclusion that the appellant was entitled to an award under our Workmen's Compensation Act.' Wright v. Peabody Coal Co., supra, at page 686 of 225 Ind., at page 119 of 77 N.E.2d.

Appellant sustained an acute myocardial infarction while carrying a grain door to be placed in a gondola car prior to filling such car with coke. Appellant was employed as a coke picker in which position he separated pieces of coke as they traveled in front of him on a conveyor belt.

Appellant contends that the evidence shows that his acute myocardial infarction was caused by the extra exertion necessary in carrying the grain door. Appellee, on the other hand, contends that the evidence demonstrates that said acute myocardial infarction was due to appellant's arteriosclerotic heart disease which disease was a progressive narrowing of the heart arteries, and said myocardial infarction was the natural incident and consequence of his heart disease and not due to the duties appellant was performing on April 4, 1962, or even the carrying of the grain door, if that is considered as unusual exertion, which appellee does not admit it is.

The cause of the myocardial infarction was, therefore, directly before the Industrial Board. That part of the testimony of appellee's witness, Dr. Richard Nay, on this point is summarized in appellant's recital of the evidence at pages 57-59 of his brief, as follows:

[137 INDAPP 474] 'I believe that Mr. Shaffer has arteriosclorotic [arteriosclerotic] heart disease, and that on or about April 6, 1962, he suffered an acute myocardial infarction. Acute myocardial infarction is an episode in the course of arteriosclerotic heart disease. Arteriosclerotic heart dieases [disease] is a naturally occurring disease in which the coronary artery which supplies the heart with blood becomes narrowed as the result of a disease process. The disease process is initiated by the deposition of a fatty substances [substance] called chlosterol [choleste...