Bagwell v. Chrysler Corp.
| Decision Date | 17 February 1976 |
| Docket Number | No. 2--1074A238,2--1074A238 |
| Parties | William BAGWELL, Appellant, v. CHRYSLER CORPORATION, Appellee. |
| Court | Indiana Appellate Court |
J. Conrad Maugans, Bayliff, Harrigan, Cord & Maugans, Kokomo, for appellant.
Edward J. Ohleyer, James R. Fisher, Ice, Miller, Donadio & Ryan, Indianapolis, for appellee.
Appellant William Bagwell (Bagwell) appeals from an order of the Full Industrial Board dismissing his Application for Review of Award On Account of A Change in Conditions.
Bagwell presents three questions for our determination:
(1) Was his application filed within the applicable period of limitation?
(2) Was his application for benefits by reason of changed condition, i.e., 'total disability', a petition for increased permanent partial impairment and thus barred by a one year limitation period or aws it governed by the two year limitation applicable to other claims for change or modification?
(3) Do the different time limitations for requesting an increase of permanent partial impairment and for requesting any other modification of an award constitute an unconstitutional denial of equal protection?
The statute governing the time limitations within which 'change of condition' applications may be filed is § 45 of the Workmen's Compensation Act, Ind.Ann.stat. § 22--3--3--27 (Burns Code Ed. 1974):
'The power and jurisdiction of the industrial board over each case shall be continuing and from time to time, it may, upon its own motion or upon the application of either party, on account of a change in conditions, make such modification or change in the award, ending, lessening, continuing or extending the payments previously awarded, either by agreement or upon hearing, as it may be deemed just, subject to the maximum and minimum provided for in this act (22--3--2--1--22--3--6--3).
Upon making any such change, the board shall immediately send to each of the parties a copy of the modified award. No such modification shall affect the previous award as to any money paid thereunder.
The board shall not make any such modification upon its own motion nor shall any application therefor be filed by either party after the expiration of two (2) years from the last day for which compensation was paid under the original award made either by agreement or upon hearing, except that applications for increased permanent partial impairment are barred unless filed within one (1) year from the last day for which compensation was paid. The board may at any time correct any clerical error in any finding or award.'
The relevant facts are undisputed. Bagwell sustained a ruptured disc on September 28, 1965, the injury arising out of and in the course of his employment with Chrysler Corporation (Chrysler). A spinal fusion was required. Chrysler by an agreement approved by the Industrial Board, paid Bagwell for temporary total disability for 66 2/7, weeks, intermittently from September 28, 1965 until June 22, 1967. Bagwell on July 19, 1967 timely filed a claim with the Industrial Board for permanent partial impairment though the claim form designated the assertion as follows:
'Particulars of disability (emphasis supplied) whether total or partial and estimated duration thereof _ _ permanent partial (these words typed in the printed form).' 1
An award was granted on December 18, 1967. That award found that the temporary total disability terminated on June 22, 1967. The award rated Bagwell's permanent partial impairment as 27 1/2% of the person as a whole, and ordered compensation of $45.00 per week to be paid by Chrysler for a specific period of 137 1/2 weeks retroactive to September 28, 1965, the date of injury. Additionally, the Board found that Bagwell had refused further surgery in the form of a refusion and that Bagwell knew that without such surgery additional disability and impairment might occur. On March 21, 1968, Bagwell filed an application for review on account of a change in conditions alleging only that 'the disability' had recurred and increased. No claim was made for increased 'impairment'. It was the Board's determination, however, after hearing, that his permanent partial impairment had increased to 37 1/2% and Bagwell was awarded $45.00 per week for a specific period of 50 weeks again retroactive to September 28, 1965. No appellate challenge was made to that award by Bagwell.
On August 8, 1970, Bagwell filed another application for review, the ruling upon which is here involved. In this application, Bagwell again alleged that his 'disability' has recurred and increased with no assertion of increased impairment. Chrysler moved that the application be dismissed as untimely, having been filed more than one year after the last date, May 2, 1968, for which compensation was paid. The motion to dismiss was granted by the single hearing member on June 28, 1973. The Full Board affirmed the dismissal on September 10, 1974, indicating in its order that the sole basis of the decision was that 26 weeks temporary total disability could not be added to '137 1/2' weeks of permanent partial impairment so as to bring the modification application within the Statute of Limitations. It is from this order that Bagwell appeals.
Awards for impairment and for permanent total disability are governed by the schedule in the Workmen's Compensation Act (hereinafter the Act), Ind.Ann.Stat. § 22--3--3--10 (Burns Code Ed. 1974), commonly known as § 31. Part (a) of § 31 sets forth the basic compensation benefits and in five sub-sections thereof designates specificawards for amputation of various members and for complete loss of vision and hearing. Part (b) of § 31 designates in subsections (1), (2), (4) and (5) awards for the total or partial loss of use of various members, partial loss of sight or hearing, and, additionally, in subsection (3) provides for an award for 'injuries resulting in total permanent disability.' Part (b) further provides for awards in all other cases of permanent partial impairment, and in cases of permanent disfigurement which may impair 'future usefulness or opportunities'.
The Board dismissed Bagwell's application because it was not filed within one year from the last date for which compensation was paid. Bagwell argues that the one year limitation is not applicable since he did not apply for increased permanent partial impairment, but rather for a change of the award to one for permanent total disability. He maintained that he filed within the permissible two year period.
Chrysler answers that Bagwell's application was not timely filed even if the two year period be considered applicable. Further, it maintains that permanent partial impairment and permanent total disability are mutually exclusive awards, and that once an award has been made for permanent partial impairment, the only possible modification is for an increase or decrease in the impairment rating. While Chrysler admits that an increase in impairment may reach the level of total disability, it asserts that such is merely a specific level of permanent partial impairment, and hence controlled by the one year limitation.
Before reaching Bagwell's argument that the 2-year rather than the 1-year limitation is applicable, we must consider whether his application was filed within either period.
In determining the beginning date for the running of the 2-year limitation, § 45 the running of the 2-year limitation, § 45 clearly states that an application for modification may not be filed 'after the expiration of two (2) years from the last day for which compensation was paid under the original award made either by agreement or upon hearing . . ..' (Emphasis supplied). Under the original award, Chrysler was ordered to pay Bagwell compensation for a specific period of 137 1/2 weeks, beginning September 28, 1965. Thus the last date for which compensation was paid was May 16, 1968, two years and 3 months before Bagwell filed his application.
Bagwell's argument that the 50 additional weeks awarded to him pursuant to his March 21, 1968 application for modification should be tacked to the original award period flies in the face of the unambiguous words of the statute that the original award is determinative of the 2-year period. Thus for purposes of the 2-year limitation, additional weeks of compensation pursuant to later modification may not be added to the period of the original award in determining the last date for which...
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