Vandalia Coal Co. v. Holtz , 68 Ind. App. 670 ( 1918 )

Felt, P. J.

This is an appeal from an award of the full Industrial Board, allowing appellee, Fred Holtz, compensation for 100 weeks at the rate of $13.20 per week beginning June 26, 1917.

Appellant has assigned as error that said 'award “is contrary to law because it is not supported by tbe evidence.”

Appellant contends that appellee did not give notice of Ms injury as required by the Indiana compensation law, and that sufficient reason for such failure is not' shown by the evidence to sustain the award; that the rights of appellant were prejudiced by such failure of appellee to give due notice of his injury.

Appellee was denied an award at the first hearing of his application, but, on review by the full board, a finding and award were made as follows:

“The evidence introduced upon the original hearing of this cause having been transcribed and having been reviewed by the full board in connection with the consideration of the evidence introduced upon the hearing upon review, the full board being duly advised in the premises finds that during the month of May, 1916, and for more than a year prior thereto and continuously thereafter until the 26th day of June, 1917, plaintiff was in the service of defendant as an employe as an electrical machine operator in the defendant’s coal mine No. 9 in Greene County, State of Indiana, at an average weekly wage in excess of $24.00; that during all of said time the plaintiff worked under the defendant’s pit boss as general foreman who had control of and directed the plaintiff as to what work he should perform, and during all of said time the plaintiff also was under the control and charge of the defendant’s chief electrician as machine foreman, who'directed and controlled the plaintiff in the manner of operating his electrical machine.

“That in the month of May, 1916, on a date in said month, not shown by the evidence, the plaintiff was engaged in the discharge of his duties in operating the electrical machine and while operating said machine in the regular and usual course of his work and in the discharge of the duties of his employment, plaintiff was accidentally struck in the right eye by a flying particle, as a result of which from and after the 26th day of June,' 1917, the vision of plaintiff’s right eye has been permanently and irrecoverably reduced below one-tenth of normal with glasses; that the defendant’s chief electrician or machine foreman, under whom the plaintiff worked had actual knowledge of the plaintiff’s injury on the day that it occurred and within a few minutes thereafter; that continuously from the first day of September, 1915, and until the date of the original hearing of this cause, Dr. A. A. Thomas, of Linton, Indiana, was in the employment of the defendant as its physician and surgeon for the treatment of the injuries of all employes of the defendant injured at said mine No. 9; that soon after the 1st day of September, 1915, and prior to the plaintiff’s injury, the defendant notified the plaintiff, by inserting in his pay envelope a written notice, that in case of a slight injury he was to report to Dr. A. A. Thomas, the Company surgeon of Linton, Indiana, for treatment and in case he should receive an injury that rendered him unable to report in person, he should call Dr. Thomas at once.

‘ ‘ That pursuant to said notice the plaintiff visited Dr. Thomas in his office in the city of Linto.n, Indiana, on the day of his injury, at which time the said Dr. Thomas examined the plaintiff’s eye and advised him that the injury was trivial, that it required no treatment and that in a short time he would be recovered from the injury; that relying upon said advice by said physician the plaintiff did not notify the defendant in writing at any time of his injury and did not give any verbal notice to the pit boss; that the plaintiff continued his work for the defendant until the 26th day of June, 1917; that during the whole of said time the plaintiff suffered from his eye but relied upon the advice- of the defendant’s surgeon that in time he would have a recovery from his injury; that on the 26th day of June, 1917, plaintiff discontinued his work, caused his eye to be examined by an occulist and was advised that he had permanently and irrecoverably lost the entire vision of said eye; that the plaintiff acted in good faith upon the advice of the defendant’s surgeon and because of said advice the plaintiff’s failure to give written notice to the defendant of his injury is founded upon a reason equally as good as if he had been prevented from doing so by reason of physical or mental incapacity or the fraud or deceit of some third person; that in view; of the fact that the plaintiff acted upon the advine of the defendant’s agent and physician in the matter of his injury, the rights of the defendant have not in any wise been. prejudiced by the failure of the-plaintiff to give to the defendant written notice of his injury; that the accident resulting in the loss of the vision of the plaintiff’s right eye arose out of and in the course of the plaintiff’s employment with the defendant ; that by and through its chief electrician and its physician the defendant had actual knowledge of the plaintiff’s injury upon the date that it occurred.

“Award.

“It is therefore considered and ordered by the full Industrial Board that the plaintiff be and is hereby awarded against the defendant one hundred weeks’ compensation at the rate of $13.20 per week, beginning on the 26th day of June, 1917.”

Section 22 of the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918) provides that: “Every injured employe or his representative shall immediately upon the occurrance of an injury or as soon thereafter as practicable give or cause to be given to the employer written notice of the injury and the employe shall not be entitled to physician’s fees nor to any compensation which may have accrued, under the terms of this act, prior to the giving of such notice: unless it can be shown that the employer, his agent or representative had knowledge of the injury or death, or that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity or the fraud or deceit of some third person, or for equally good reason: but no compensation shall be payable unless such written notice is given within thirty days after the occurrence of the injury or death, unless reasonable excuse is made to the satisfaction of the Industrial Board for not giving such notice.”

Section 23 of the act, supra, states what the written notice shall contain, and then provides that: “No defect or inaccuracy in the notice shall be a bar to compensation unless the employer shall prove that his interest was prejudiced thereby, and then only to the extent of such prejudice.”

1. The findings sustain the award on two grounds, viz.: (1) That appellant’s agents and representatives had actual knowledge of the injury at the time it occurred; and (2) that a reasonable excuse is shown for the failure of appellee to give the notice required by the statute.

There is no claim that any written notice was given by appellee to appellant, and the provisions of §23 of the act, supra, have no application.

2. The board having found the facts showing actual knowledge of the injury, by appellant’s agent and representatives, at the time it occurred, and also reasonable excuse for the failure to give the statutory notice, such findings are conclusive and binding on this court, if there is any evidence tending to sustain either of such findings.

3. There is evidence tending to prove that appellee was injured in the month of May, 1916, substantially as found by the Industrial Board; that his eye pained him, and thereafter he noticed something like gnats or black specks in front of him, but he continued to work until June 26, 1917; that he consulted Dr. A. A. Thomas,' the company’s physician, on the evening of the day he was injured; that the doctor examined his eye, informed him the injury would not amount to anything, and did not treat it; that on the day of the injury appellee placed a bandage over his injured eye, and on that day tiie company’s head electrician, who' directed appellee in the operation of the machine used by him in the mine, noticed his eye was bandaged and asked what was the matter, and appellee showed him his injured eye, and he remarked it was a pretty bad looking eye; that he did not report his injury to the general foreman or pit boss, or to anyone else, except as above stated; that subsequently his eye bothered him, but he continued to work, and suffered more or less from the injury from the time it occurred until June, 1917, when the eye became worse, and he then consulted Drs. Johnson and Knapp, who subsequently treated his eye; that after appellee consulted Dr. Knapp he reported to the mine boss, the foreman of the mine where he worked, that he was unable to work, and showed him his eye; that he looked at it, and said, “I guess not," and informed him his job was ready for him when he got able to work.

Appellant offered in evidence a notice, which it claimed appellee and other employes received, stating that its employes were requestd to report at once to the pit boss or section foreman any injury, however slight, and were also requested to report in person to Dr. A. A. Thomas, company surgeon, for treatment, or have him called when necessary.

The evidence justifies the findings of the board. It tends to prove that agents and representatives of appellant had knowledge of the injury, both at the time of the accident in the mine, and at the time the • injury was ascertained to be of such a serious nature as to incapacitate appellee from working in the mine.

It tends also to show that he consulted the appellant's physician promptly, followed his suggestion, and relied upon his statement until the condition of his eye became serious, when he consulted other physicians.

The Industrial Board found that the facts afforded a reasonable excuse for not giving, the notice prescribed by the statute.. The thirty days therein prescribed expired while appellee was relying upon the opinion of appellant’s physician that his injury was slight and would have no permanent effect upon his eye. He seems to have acted in good faith, and the facts of the case not only sustain the finding of the Industrial Board, hut clearly illustrate the fairness and wisdom of the provision of the act which submits to the board the question of reasonable excuse for its determination.

The finding is not an arbitrary statement, but is sustained by sufficient evidence.

As sustaining the decision of the Industrial Board, see the following cases: Johansen v. Union Stock Yards Co. (1916), 99 Neb. 328, 156 N. W. 511, L. R. A. 1916A 83, 89, 244; Donahue v. Sherman’s Sons Co. (1916), 39 R. I. 373, 98 Atl. 109, L. R. A. 1917A 76; Tibbs v. Watts et al. Co. (1909), 2 B. W. C. C. 164; Fry v. Cheltenham Corp. (1912), 81 L. J. K. B. N. S. 41; Hoare v. Arding and Hobbs (1911), 5 B. W. C. C. 36; Schmidt v. O. K. Baking Co. (1916), 90 Conn. 217, 96 Atl. 963; Knoll v. City of Salina (1916), 98 Kan. 428, 157 Pac. 1167; Carroll’s Case (1916), 225 Mass. 203, 114 N. E. 285.

4. Furthermore, as already stated, appellant’s pit boss, or general foreman, had actual knowledge of the injury suffered by appellee at the time disability therefrom was definitely ascertained to have resulted from such injury, and this has been held sufficient under our statute. In re McCaskey (1917), 65 Ind. App. 349, 117 N. E. 268; Hornbrook-Price Co. v. Stewart (1918), 66 Ind. App. 400, 118 N. E. 315.

The award is affirmed, with five per cent, penalty added thereto, as provided by the act of 1917, Acts 1917 p. 154, §8020q2 et seq. Burns’ Supp. 1918.

Note.. — Reported in 120 N. E. 386. Workmen’s compensation: notice of injury and claim, L. R. A. 1916A 83, 244, 1917D 135, 1918E 556.