23 N.E.2d 598 | Ind. Ct. App. | 1939
This appeal is from an award of the Industrial Board of Indiana on a petition filed by the appellant on August 11, 1938, in which he seeks to recover compensation for permanent partial impairment which resulted from an injury which he sustained on August 12, 1936. *406
The facts regarding the injury were stipulated by the parties and it is sufficient to say that the injury which the appellant suffered was occasioned by an electric shock which he sustained when he accidentally came in contact with an iron pipe which was charged with an electric current. Compensation was first awarded the appellant from the date of the injury until October 7, 1936 for temporary total disability. This compensation period was subsequently extended until January 1, 1937. The appellant was frequently before the board during the two years immediately following the accident on petitions for review on account of change in conditions. The hearing member of the Industrial Board denied compensation on the petition filed August 11, 1938 and found against the appellant on his claim of permanent partial impairment.
From this award of the hearing member, the appellant filed his petition for review by the full Industrial Board and accompanied his application with a verified petition for leave to submit additional evidence. The additional evidence which the appellant desired to submit was the testimony of a doctor who was a recognized authority on the effect of electrical shocks on human beings. In addition to testimony as to physiological reaction brought about by electrical shock, this doctor would have also testified that he found the appellant suffering from a seventy (70%) percent impairment to his entire body, which was occasioned by this accident. The Industrial Board denied the appellant's position requesting the full Board to hear this evidence and, after overruling the motion to reconsider this action, an order was entered denying the appellant compensation.
The appellant assigns as error in this court that the award of the full Industrial Board is contrary to law. In addition to this assignment of error, the appellant *407 contends that the Industrial Board of Indiana also erred in denying the appellant's petition requesting the full board to hear his additional evidence. The statute involved in this contention is § 40-1511 Burns Indiana Statutes 1933, § 16436 Baldwin's 1934, which reads in part as follows:
"If an application for review is made to the board within seven (7) days from the date of an award, made by less than all the members, the full Board, if the first hearing was not held before the full Board, shall review the evidence, or, if deemed advisable, hear the parties at issue, their representatives and witnesses as soon as practicable."
It is apparent from a reading of this statute that the matter of hearing additional evidence rests largely within the sound discretion of the Industrial Board. Whether or not the refusal of the board to hear such additional evidence is reversible error must depend therefore on whether or not there was an abuse of such discretion in denying the appellant's petition. Tallon v.Sexton Coal Co. (1934),
It is quite true that there is ample evidence in the record of testimony offered by the appellant, his wife, his physician, and others on which the board might have based an award of compensation. But the testimony of the doctors above referred to is in direct conflict with the appellant's evidence and we cannot say that the doctors' testimony was entitled to no credit. Our Supreme Court in a similar controversy has held directly to the contrary. (See National Life and Accident Ins. Co. v. Martin
(1938),
It is our opinion, therefore, that the Industrial Board did not abuse its discretion in overruling the petition to permit the introduction of additional evidence and that the award of the board is not contrary to law.
Finding no reversible error, the award is accordingly affirmed.