Wright v. Peabody Coal Co. ( 1948 )

The full Industrial Board of Indiana denied appellant compensation for alleged personal injuries claimed to have been received on December 7, 1944, as the result of an accident arising out of and in the course of his employment with appellee. This award was reversed by the Appellate Court. In due course we granted the appellee's petition to transfer.

The award of the board was to the effect that the appellant take nothing by his Form 9 application filed September 12, 1945. This award was based on the finding that the appellant on December 7, 1944, was in the employ of appellee at an average weekly wage of 34 dollars but the appellant did not on that date sustain accidental injuries by reason of an accident arising out of and in the course of his employment by the appellee.

The sole error relied upon for reversal is that the award is contrary to law. This being a negative finding against the appellant who had the burden of proof, the only question to 1. be decided is whether the evidence entitled him to relief which was denied him by the award. Wilson, Admx. v.Rollings (1938), 214 Ind. 155, 14 N.E.2d 905. In order to decide this question it is necessary to examine the evidence.

All the evidence which was heard by the board was substantially as follows: On December 7, 1944, the appellant was in the employ of the appellee at an average weekly wage in excess of 34 dollars and on that date was working in the mine of appellee located in Sullivan County, Indiana. Appellant testified that on that date while so employed he, along with a fellow servant, picked up a 12 foot railroad bar which was quite heavy; that it was their intention to place this bar on a jack; that after he had taken two or three steps with this bar a pain hit him in his back about where his "trouser belt would go around him"; that this pain shot up his back towards the back of his neck; that as a result of said injury he has been incapacitated from doing any physical labor except a little light work around the house. Appellant's evidence also discloses that prior to this accident he was not afflicted with back trouble and that he now suffers pain in his back and leg when he attempts to stoop or lift anything.

Appellant's testimony was corroborated as to the accident by the testimony of his fellow servant who was working alongside him at the time of the accident. He was also corroborated in other portions of his testimony by his wife who was a witness in his behalf.

One Dr. Russell Lebier testified on behalf of the appellant. The doctor testified that he first examined appellant professionally December 11, 1945, again on March 4, 1946, and on May 13, 1946; that the appellant was complaining at the time he came to see him of pain in his back on the right side lateral to the lumbar spine around the fourth and fifth lumbar vertebrae; that this pain tended to be recurrent; that the appellant stated the pain was made worse by bending or attempting to lift or strain, there was also an atrophy of the right leg and numbness over his rump region, right thigh and right calf; that from his examination, which also included an x-ray of the lumbar spine which had been taken by another physician, he was of the opinion that the appellant is suffering from a rupture of an intervertebral disc which he attributes to the appellant's injury.

In pursuance to appellee's request to have appellant examined by a disinterested doctor, the board arranged to have Dr. E. Vernon Hahn examine appellant, which examination was made June 18, 1946. Dr. Hahn rendered his report by way of a deposition filed in this cause which deposition, upon motion of the appellant, was published and read in evidence. From his examination the doctor was of the opinion that the appellant was suffering from a ruptured intervertebral disc or discs. In this deposition the doctor states that the appellant, during the examination, gave a history of having been injured while assisting a co-worker in carrying a heavy object; that in so doing he accidentally stepped into a hole which allowed his end of the object to slip; that he made an effort to catch it and in so doing he wrenched his back; that at the time he suffered a sudden severe pain in the lower part of his back which pain radiated up to his shoulders; that since that time he has never been free of pain in the lower region of his back; that sometime after the accident, pain began to radiate into the right lower extremity; that he has experienced numbness in the lateral aspect of the right leg and thigh and this has varied considerably in intensity; that coughing or straining made his right lower extremity feel strange; that his right lower extremity feels weak, particularly in stepping up, and that there is a strange "pulling down" feeling in his rectum; that there is a spine tenderness in the lumbo-sacral joint; that forward bending, according to the patient, produced pain at the lower back region with radiation to the lower right extremity. Bending to the right produced pain in the lumbo-sacral region. Straight leg raising on the right produced pain in the calf of the right leg. On the left side straight leg raising produced no discomfort. Rotating of the right hip produced discomfort in the lumbo-sacral region on the right side. Inspection of the lower extremities showed definite but slight atrophy in the lower thigh and the leg muscles of the right side; that the x-ray of the lumbar spine showed congenital conditions which are not related to the patient's symptoms. Tests of sensation showed no impairment except for a slight reduction on the lateral side of the right foot. The examination of the reflexes showed no impairment except the right ankle jerk was definitely less than the left, otherwise the neurologic examination was entirely negative. It will be seen that Dr. Hahn's opinion is based very largely upon subjective symptoms and the history of this case as given to him by the appellant.

The appellee in its defense of this case produced the testimony of three medical witnesses as follows:

Dr. F.M. Duke testified that the appellant came to him on December 10, 1944, three days after the alleged accident, and that he complained of pain in the side and bleeding from the bowel; that the history of the accident and the pain complained of were not such as to call for an examination of the plaintiff's back and that the doctor would have made an examination of the plaintiff's back had the appellant, by his statements, given him any grounds for such examination; that he could not connect appellant's symptoms with the accident that appellant described. He also testified that the appellant did not give him the same history of the accident when he came to him for treatment that he gave to the witness, Dr. Hahn, in June, 1946.

Dr. J.H. Crowder testified that appellant first came to him on January 29, 1945, and that he was then suffering from internal hemorrhoids, a slight swelling of the prostate and slight oozing of blood from the hemorrhoids; that at that time there was no evidence of injury; that he again saw appellant on February 3, 1945, and he was complaining of a great deal of pain in the region of the rectum; that he then took x-ray films of the lumbar vertebrae, the pelvis, and the sacrum, and that these films were negative for injury and that in his opinion appellant was not suffering from a ruptured disc on January 29, and February 3, 1945; that the pain and symptoms which appellant then complained of were due to hemorrhoids and prostate condition. Dr. Crowder also testified that the history of the accident as given by the appellant to the witness, Dr. Hahn, did not correspond to the history appellant gave to him on January 29, 1945; that at that time appellant told him that he lifted a steel bar and he experienced a pain in the region of the rectum and that he consulted Dr. Duke on the 10th of December; that he further stated that five days after this experience he had some bleeding from the rectum. Dr. Crowder's record of this case, which was in writing, does not disclose any history that the appellant wrenched his back by stepping into a hole or that at the time he sustained this accident he suffered a severe pain that radiated up into his shoulders.

Dr. M.C. Topping testified that he saw appellant professionally on February 10, 1945, and at that time appellant stated to him, "The only thing that bothers me now is my rectum. My back hurt me for a while. Now it is just my rectum. It just aches. Have kind of pulling down feeling, drawing up here on the base. Some days it is pretty bad. Now it feels better again. I never had any trouble with my rectum before and I would be in good shape now if it was not for that." That the doctor received no history or complaint to indicate an examination of the back in the lower lumbar region; that in his opinion the appellant, at the date he examined him, was suffering from chronic inflammatory disease of the prostate gland, and was not suffering from an intervertebral ruptured disc; that the appellant gave him no symptoms which are ordinarily related to ruptured intervertebral discs; that although he made no examination to determine whether or not the appellant had a ruptured invertebral disc, yet he could conclusively determine in this case, without such examination, whether or not the appellant was suffering from such an injury as "no man who is going to a doctor for relief from symptoms and has a ruptured intervertebral disc would go to that doctor and make no mention of any pain in his back or any changes in the feeling in his legs, or any of the other symptoms which are ordinarily related to a ruptured intervertebral disc."

It must be borne in mind that the finding of the board in this case is a negative finding and it cannot be attacked upon the ground that there is a lack of evidence to support it, as a 2. decision against the party having the burden of proof does not rest upon the quantum of evidence. Wilson, Admx. v.Rollings, supra.

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 3-7. entitled to an award under our Workmen's Compensation Act. Krentz v. Ferguson Coal Co. (1926),85 Ind. App. 347, 154 N.E. 35; Heflin v. Red Front, etc., (1947),225 Ind. 517, 75 N.E.2d 662. It is the law of this state that a primafacie case must always prevail in the absence of countervailing proof or in other words where the evidence in the record is all one way its effect becomes a matter of law even in favor of the plaintiff to recover. First Nat. Bank v. Farmers, etc., (1908), 171 Ind. 323, 86 N.E. 417; City of Decatur v. Eady (1917), 186 Ind. 205, 115 N.E. 577. See also Dockerty v.Hutson (1890), 125 Ind. 102, 25 N.E. 144; Carver v. Carver (1884), 97 Ind. 497; Riley v. Boyer (1881), 76 Ind. 152. But the facts in this case which would warrant a recovery on the part of the appellant were not established without controversy or opposing testimony. Appellant's evidence as to injury was disputed by opposing testimony. Also there was evidence from which the board could have determined that appellant had given different histories of his injury and different symptoms of the same. These variations and contradictions might well have been considered in determining the weight to be given to appellant's testimony even to the point of rejecting it as to the item of injury. Of course the trier of facts cannot arbitrarily reject items of oral evidence but, even though a particular item of evidence is not expressly or directly contradicted, this does not prevent the trier from taking into consideration all of the other evidence including circumstances and surroundings that might in any way affect the weight or credibility of such evidence, and the trier may disregard oral evidence if considered unreasonable or inconsistent with facts and circumstances shown by the other evidence in the case.McKee v. Mutual Life Ins. Co., etc., (1943), 222 Ind. 10,51 N.E.2d 474; Wm. P. Jungclaus Co. v. Ratti (1918),67 Ind. App. 84, 118 N.E. 966.

The judgment of the Appellate Court is hereby reversed and the Appellate Court is ordered to affirm the award of the Industrial Board of the State of Indiana.

Gilkison, J., and Emmert, C.J., dissent.

NOTE. — Reported in 77 N.E.2d 116.