APPELLATE COURT OF INDIANA. DIVISION NO. 1. PEDLOW SWARTZ ELECTRIC CO. (No. 13306.)* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATIONFINDING OF BOARD. Where there is some evidence to sustain finding of Industrial Board in proceeding under the Workmen's Compensation Act, it will not be disturbed on appeal. (For other cases, see Master and Servant, Dec. Dig. 8 417[7].) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATIONEFFECT OF AGREEMENT. An agreement for compensation between an injured employee and the employer, approved by the Industrial Board, under Workmen's Compensation Act, § 57, has the effect of and award. (For other cases. see Master and Servant, Dec. Dig. § 416.) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION— EFFECT OF AWARD. An award of compensation under the Workmen's Compensation Act. not reviewed or set aside, is conclusive on both parties, except as provided in section 45, allowing a modification on change of conditions. (For other cases. see Master and Servant, Dec. Dig. § 416.) 4. MASTER AND SERVANT-WORKMEN'S COMPENSATION— REVIEW. In a hearing under the Workmen's Compensation Act, § 45, to review an award, because of change of conditions, the parties are bound by the proof made at the former trial, and proof is limited to evidence to prove or disprove the contention that the conditions existing at the time of the award have changed. (For other cases, see Master and Servant, Dec. Dig. § 419.) Appeal from Industrial Board. Proceeding under the Workmen's Compensation Act by James L. Pedlow, opposed by the Swartz Electric Company, employer. From an award by the Industrial Board, the employee appeals. Affirmed. Jacob L. Steinmetz, of Indianapolis, for appellant. FELT, P. J. This is an appeal from an award of the full Industrial Board of Indiana. Appellant has assigned as error that (1) the award is contrary to law; (2) that the full board erred in awarding appellant 2 weeks' compensation. Appellant, in his brief states that: "The action was an application by appellant, against appellee, for a review of an award of the Industrial Board of Indiana, on account of a change in condition; that the disability of appellant, on account of said * Decision rendered, Nov. 1, 1918, 120 N. E. Rep. 603. injury, had increased since the date of said award; and that the previous award be increased." On the 16th day of January, 1918, the date of the hearing before Samuel R. Artman, one of the members of the Industrial Board, appellant filed what he denominated "an application for the review of an award on account of a change in condition," in which he alleges that appellant's disability on account of his original injury "has recurred since the date of said award"; that "the same has increased since the date of said award." Appellant was awarded two weeks' compensation, at the rate of $13.20 per week, to be paid in a lump sum. He thereupon applied for a review of such award, and after a hearing by the full board it made a finding and award which, omitting uncontroverted details, is in substance as follows: Appellant was employed by appellee at $24 per week, and while so employed received an injury to the middle finger of his right hand, which became infected, and by reason of which he was totally disabled for the period of 4 3/7 weeks from May 1, 1917; "that on the 14th day of June, 1917, the plaintiff and defendant entered into a compensation agreement whereby it was agreed that the plaintiff's injury was occasioned by an accident arising out of and in the course of his employment; that the defendant should pay to the plaintiff, and that plaintiff should accept. compensation at the rate of $13.20 per week, beginning May 15, 1917, together with the costs of the proper medical and hospital attention occasioned by his injury, for the first 30 days thereafter; that the compensation payments should continue at said rate so long as the plaintiff was totally disabled for work on account of said injury; that said agreement was filed with the Industrial Board of Indiana on June 19, 1917. and was approved by said board on June 20, 1917; that on the 2d day of August, 1917, the plaintiff and defendant entered into a supplemental compensation agreement, whereby it was agreed that the permanent partial impairment of the plaintiff's middle finger was 25 per cent; that there had been paid to the plaintiff, under the previous compensation agreement, 2 3/7 weeks' compensation, amounting to $30.17; that there was due and unpaid to the plaintiff, on account of the permanent partial impairment of the middle finger, compensation for 5 weeks 12 days additional, amounting to $68.83, and making a total compensation of 72 weeks, amounting to $99; that said agreement was to be filed with the Industrial Board of Indiana as a supplemental final agreement; that said supplemental and final agreement was filed with the Industrial Board of Indiana on August 4, 1917, and was approved by the board on August 6, 1917; that pursuant to said agreement the defendant paid to the plaintiff the additional $68.83 and took his receipt therefor, in which it was stipulated, 'It is hereby understood and agreed that there is a 25 per cent permanent partial impairment of the middle finger of the plaintiff's right hand,' which receipt was filed with the Industrial Board of Indiana on the 4th of August, 1917; that the plaintiff, as a result of his accident of April 27, 1917, received no injury, except to the middle finger of his right hand; that the infection thereof did not extend to any other portion of the plaintiff's body than the middle finger of the right hand, and did not cause any permanent partial impairment to any other member of the plaintiff's body; that in the early part of September, 1917, the plaintiff's middle finger became inflamed by reason of a recurrence of the infection thereof; that the plaintiff immediately notified the defendant, who sent him to an attending physician, who treated said finger, and as a result of that treatment it healed within the course of 3 or 4 days; that as a result of the return of said infection the plaintiff was disabled for work for a period of 2 weeks; that the recurrence of said infection did not aggravate, change, or increase the degree of permanent partial impairment of said finger. "Award. It is therefore considered and ordered by the full board that the plaintiff be and is hereby awarded 2 weeks' compensation at the rate of $13.20 per week, to be paid in cash in a lump sum, on account of a disability to work occasioned by the recurrence of the infection in his middle finger of the right hand in September, 1917." Appellant cites and relies on the provisions of section 31 the compensation statute (section 802001, Burns' Supplement of 1918), and section 45 of the act, being section 2020c2 of the aforesaid statutes. The provision of section 31 so relied upon states that: "In all other cases of permanent partial disability, including any disfigurement which may impair the future usefulness or opportunities of the injured employee, compensation ** * shall be paid when and in the amount determined by the Industrial Board, not to exceed 55 per cent of average weekly wages per week for a period of 200 weeks." Section 45 of the act authorizes a. review by the Industrial Board "on the ground of a change in condition" arising after the award was made. [1] Appellant, in effect, contends that the board, having found that he was entitled to some additional compensation, committed an error of law in limiting the same to 2 weeks, because of the "evidence warrants a larger award than 2 weeks' compensation at $13.20 a week." The assignment that the award is contrary to law presents "both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts." Section 8020s2, Burns' supp. 1918. The finding clearly authorizes and sustains the decision and award of the full board. The evidence at least tends to sustain the finding. There being some evidence to sustain the finding, the action of the board in that regard will not be disturbed on appeal. Interstate, etc., Co. v. Szot, 115 N. E. 599. [2] The agreement by the parties, made on August 2, 1917, and approved by the board on August 6th, has the full force and effect of an award. Section 57 of the act, supra; section 802002. Burns' Supp. 1918; In re Stone. 117 N. E. 669. [3] The award so made has not been reviewed or set aside. It is therefore final and conclusive upon both parties, except as provided in section 45 of the act, supra. In a hearing based on the provisions of such action, the original award stands as an adjudication upon all matters in dispute up to the time such award was made, and neither party may thereafter be heard to say that such award was wrong in any respect, or that in any subsequent hearing evidence is proper to show that either the injury or disability was greater or less than that indicated by such award. [4] In a hearing under the provisions of section 45 of the act, supra, the parties are bound by the proof made at the former hearing, upon which the finding was based and the award made, and the proof is limited to evidence tending to prove or disprove the contention that the conditions existing at the time the award was made have changed subsequent to the making thereof. Bloomington, etc., Co. v. Industrial Board, 276 Ill. 120, 114 N. E. 511; Simpson Const. Co. v. Industrial Board, 275 Ill. 366, 114 N. E. 138; City of Pana v. Industrial Board, 279 Ill. 279, 116 N. E. 647. The award of August 6th is unaffected by the subsequent proceedings. If the questions appellant seeks to present relate to the award of August 6th, they are unavailing, because they are res adjudicata, as above shown. If the proposition relied on for reversal is the contention that the allowance of 2 weeks' compensation by the full board, for the recurring injury and the additional disability occasioned thereby, is too small, appellant cannot succeed, for the evidence sustains the findings, and the award of 2 weeks' compensation made by the full board is fully authorized by such findings. No error is presented, and the award of the full Industrial Board is therefore affirmed. APPELLATE COURT OF INDIANA. DIVISION No. 1. PURITAN BED SPRING CO. V. WOLFE. (No. 10279).* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATIONPRE-EXISTING DISESASE. Where an employee affected with disease receives a personal injury under circumstances entitling him to compensation had no disease been involved, and such disease is materially hastened to a final culmination by the injury, an award under the Workmen's Compensation Act may be had if the injury resulted from accident. (For other cases, see Master and Servant, Dec. Dig. § 376[1].) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION— "ACCIDENT"-EXISTING DISEASED CONDITION-STRANGULATED HERNIA. Where an employee afflicted with hernia lifted a bale of wire weighing about 150 pounds and thereby caused the intestine to protrude into the existing hernial sac, necessitating an operation to save his life, he was entitled to compensation, under the Workmen's Compensation Act; the injury being an "accident," which is any unlooked-for mishap or untold event, not expected or designed. (For other cases, see Master and Servant, Dec. Dig. § 376[1].) (For other definitions, see Words and Phrases, First and Second Series, Accident.) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION— EVIDENCE-SUFFICIENCY. In a proceeding under the Workmen's Compensation Act for injuries sustained by an employee in lifting a bale of wire weighing about 150 pounds resulting in strangulating a preexisting hernia, evidence held to sustain the award of the industrial board. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) Appeal from Industrial Board of Indiana. Proceedings under the Workmen's Compensation Act by Albert Wolfe to obtain compensation for personal injuries, and opposed by the Puritan Bed Spring Company, employer. Compensation was awarded by a single member and subsequently by the full board, and the employer appeals. Affirmed. Joseph W. Hutchinson, of Indianapolis, and Frederick K. Warna, for appellant. E. E. McFerren, of Indianapolis, for appellee. HOTTEL, J. On January 28, 1918, appellee filed with the Indusrial Board of Indiana an application in the usual form for compensation for injuries alleged to have been sustained by him while in appellant's employ. A hearing on February 8, 1918, by Samuel R. Artman, a member of said * Decision rendered, Oct. 18, 1918. 120 N. E. Rep. 417. board, resulted in an award in favor of appellee. Upon petition by appellant for review, said case was heard by the full board on March 1, 1918, with the result that a finding and award was made by the full board substantially the same as that made by the single member thereof. To this award the appellant excepted, and from it this appeal is prosecuted. Appellant assigns as error that said award is contrary to law. Under this assignment appellant challenges the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts. The part of said finding pertinent and material to a consideration of these questions is, in substance, as follows: On November 29, 1917, appellee was in the employment of appellant at an average weekly wage of $21.60. On that date, while engaged in the discharge of the duties of his employment, appellee lifted a bale of wire, weighing about 150 pounds, to a reel which stood about even with the appellee's shoulders. In lifting the bale of wire, appellee severely strained his body, and thereby caused a protusion of an intestine into an existing hernial sac or aperture. By reason of the strain of appellee's body at the time said intestine was impinged or held in said hernial sac, producing an immediate intestinal strangulation. Appellant had actual knowledge of appellee's injury immediately thereafter. On December 15, 1917, appellant executed a report of such injury to the Industrial Board and delivered the same to its insurance carrier. Appellant did not furnish appellee an attending physician for treatment of his injuries nor the necessary surgical and hospital services and supplies required thereby. The strangulation aforesaid required an immediate surgical operation in order to save appellee's life. Appellee procured his own surgeon, Dr. Gatch, of Indianapolis, to perform said operation, and a reasonable fee for his services in performing the operation and treating appellee following it and treating the first 30 days after the injury is $60. Appellee procured his own hospital services and supplies and thereby incurred within the first 30 days after his injury an expense of $57.14, which he has paid. As a result of his injury, the appellee was totally disabled for work continuously from the date thereof until and including January 23, 1918. It is insisted by appellant in effect that this finding affirmatively shows that appellee's injury was not accidental, or at least fails to show that such injury was accidental This contention is in the main based on the words of the finding which we have italicized, supra. [1] Appellant concedes, and correctly so, that where an employee affected with disease received a personal injury under such circumstances that the act in question would entitle him to compensation had there been no disease involved, and such disease is materially hastened to a final culmination by the injury, there may be an award, if it is shown that such injury was the result of accident; that in such cases the court will not undertake to measure the degrees of disability due respectively to the disease and to the accident, but the consequence of the disease will be attributed solely to the accident. Indianapolis Abattoir Co. v. Coleman, 117 N. E. 502, 503; In re Bowers, 116 N. E. 842, 843. [2] It is insisted, however, in effect that these propositions of law cannot avail appellee for the reason that the finding here shows that he was afflicted with a disease or disabling physical condition which rendered him susceptible to the injury for which compensation was awarded, upon exposure to "some slight incident" either within or outside of the employment, and that in such cases the disease or condition, rather than the accident, will be treated as the cause of the disability. It is argued that the finding of the board that the lifting of the wire caused the intestine to protrude into an "existing hernial sac or aperture," affirmatively shows that appellee's condition, rather than the accident, was the proximate cause of the disability for which compensation was allowed, and that the mere fact that the disability occurred during his employment affords no justification for the award. |