Wolfcale v. Grush

• Decision Date: 10 November 1944
• Docket Number: 17288.
• Citation: 57 N.E.2d 438,115 Ind.App. 155
• Parties: WOLFCALF v. GRUSH.
• Court: Indiana Appellate Court

57 N.E.2d 438

115 Ind.App. 155

WOLFCALF v. GRUSH.

No. 17288.

Appellate Court of Indiana, in Banc.

November 10, 1944

Bowers, Feightner & Palmer, of Huntington for appellant.

C W. H. Bangs, of Huntington, for appellee.

CRUMPACKER Judge.

The record background of this controversy is as follows: On February 16, 1943, the Industrial Board of Indiana awarded compensation to the appellee for temporary total disability resulting from a right inguinal hernia suffered by said appellee while an employee of the appellant and arising out of and in the course of such employment. The board found that such hernia could be repaired by surgery and, as a part of its award, ordered the appellant to tender such operation and, if accepted, to pay all surgical, hospital and medical expenses in connection therewith. Compensation during the period of temporary total disability was awarded at the rate of $13.25 per week beginning April 1, 1942. The appellee accepted the tendered operation which was performed in due course, and he was released from the hospital on February 17, 1943, and discharged from the care of his attending physician the following May.

On June 11, 1943, the appellant filed his application with the Industrial Board for a review of its former award on the grounds that the disability of the appellee had ended and that he, the appellant, had fully paid all costs and expenses in connection with the corrective operation required by such award. On December 22 1943, the appellee also filed an application for a review of said award alleging a change in conditions in that the injury involved had resulted in permanent partial impairment. These two applications for review were heard together and, on May 20, 1944, the Industrial Board made its finding and award to the effect that the appellant had fully complied with the award of February 16, 1943, except that he had discontinued the payment of compensation three months before the period of the appellee's total temporary disability had ended and, therefore, should be required to make up such deficit; and that some time between July 17, 1943, and August 18, 1943, while the appellee was working for the Schacht Rubber Company, he suffered a recurrence of his original hernia and, as a result thereof, has been temporarily totally disabled since February 9, 1944, for which the appellant should pay at the rate of $13.25 per week.

The appellant contends that this award is contrary to law because (1) there is a total failure of evidence tending to prove that the appellee's present hernia is a recurrence of the original one, and (2) it is wholly outside the issues in that it is a recovery on a theory not advanced by the appellee's petition for review and grants relief not sought thereby.

We quite agree with the appellant that, if the appellee's present hernia is not a recurrence of the first one but on the contrary is a new and distinct injury there can be no recovery because the undisputed evidence discloses that he suffered the current affliction at a time when he was not in the appellant's employ. We cannot agree, however, with the contention that there is no evidence tending to prove a recurrence of the original injury. The appellee testified that following the corrective operation he...