Bickel v. Ralph Sollitt & Sons Construction Company

• Decision Date: 26 January 1933
• Docket Number: 14,744
• Citation: 184 N.E. 196,97 Ind.App. 57
• Parties: BICKEL v. RALPH SOLLITT & SONS CONSTRUCTION COMPANY
• Court: Indiana Appellate Court

184 N.E. 196

97 Ind.App. 57

BICKEL v. RALPH SOLLITT & SONS CONSTRUCTION COMPANY

No. 14,744

Court of Appeals of Indiana

January 26, 1933

Rehearing denied May 19, 1933.

From Industrial Board of Indiana.

Proceeding under the Indiana Workmen's Compensation Act by William J. Bickel, employee, opposed by Ralph Sollitt & Sons Construction Company, employer. From the award, the employee appealed.

Affirmed.

Walter R. Arnold and Dudley M. Shively, for appellant.

Henry L. Humrichouser, for appellee.

OPINION

CURTIS, C. J.

This is an appeal from an award of the full Industrial Board of Indiana. It is the second time these parties have been before this Court on matters arising out of the same accident. The early history leading up to the instant case is as follows: The appellant, while in the employ of the appellee at an average weekly wage of $ 37.50 on June 30, 1930, suffered an injury arising out of and in the course of his employment resulting in a right and left inguinal hernia. The employer furnished an operation to the employee in an attempt to cure said injury. Afterward, to wit, on August 4, 1930, the appellant and appellee entered into a compensation agreement whereby the appellee was to pay the appellant $ 16.50 per week during temporary total disability beginning on the 20th day of July, 1930, but not exceeding the period fixed by law. The Industrial Board of Indiana approved the above agreement August 13, 1930, and payments were made in accordance therewith until October 25, 1930, at which time the payments were discontinued by reason of a receipt of the employee in final settlement of compensation, which receipt was dated November 6, 1930, and filed with the Industrial Board November 13, 1930, on form number 28 furnished by the Board to be used in such cases. This receipt acknowledged the payment of a total of $ 231.00 which included all previous weekly payments and also acknowledged that it was in final settlement of compensation due the employee by reason of the injury complained of and that the disability ceased on the 25th day of October, 1930.

Later the appellant claimed there was a recurrence of his injury, and, on December 22, 1930, he filed with the Board, using the regular printed form 9 furnished by the Board, an application for the adjustment of his claim for additional compensation, and on March 15, 1931, he filed, using the regular printed form 14 furnished by the Board, an application for a review of the award heretofore made, alleging among other things: (1) "That the disability of said employee on account of said injury has recurred since the date of said award. (2) That the disability of said employee on account of said injury has increased since the date of said award. (3) That said employer and employee have disagreed relative to the continuance of payments under said award." By agreement of the parties the appellant dismissed his application under form 9 and substituted his said application under form 14. Issues were closed by considering a general denial filed as provided by rule 10 of the Board.

The full Board in that case made an award requiring the appellee herein to resume payments of compensation to the appellant for total disability at the rate of $ 16.50 per week as provided in said agreement, said payments to continue during the period of appellant's total disability, not exceeding the period fixed by law. Upon appeal to this court the award of the full Board was affirmed. See Ralph Sollitt & Sons v. William J. Bickel (1932), 93 Ind.App. 665, 179 N.E. 327.

The appellee herein paid the compensation to the appellant as ordered by this court until January 20, 1932, when it filed an application with the Industrial Board for a review of said award on account of a change of conditions, alleging that "the disability of said employee on account of said injury has diminished since the date of said award and the disability of said employee on account said injury has ended since the date of said award and that said injury has resulted in a permanent partial impairment."

The single member heard the evidence and made an award of compensation to the appellant "at the rate of $ 16.50 per week for fifty weeks beginning on July 20, 1930. All deferred payments of compensation to be brought to date and paid in cash in a lump sum. It is further ordered that the defendant be given credit on this award for all compensation heretofore paid." The appellant filed his petition for a review by the full Board and the latter found from the evidence that "there has been a change in plaintiff's condition since the date of said full board award, in this: that plaintiff's said injury has resulted in permanent partial impairment to the extent of ten per cent of the man as a whole, and, therefore he is entitled to compensation at the rate of $ 16.50 per week for a period of fifty weeks, beginning July 10, 1930, . . . all deferred payments of compensation to be brought up to date and paid in cash in lump sum. It is further ordered that the defendant be given credit on this award for all compensation heretofore paid." Upon the above finding the full board made its award, the pertinent parts of which are as follows: "It is, therefore, considered and ordered by the full Industrial Board of Indiana that the plaintiff be and the same is hereby awarded compensation against the defendant at the rate of $ 16.50 per week for fifty weeks, beginning on July 20th, 1930. All deferred payments of compensation to be brought up to date and paid in cash in a lump sum.

"It is further ordered that the defendant be given credit on this award for all compensation heretofore paid.

"It is further ordered that the defendant pay the costs of this proceeding."

From this last award the appellant prayed and perfected this appeal, assigning as error that the award of the full board is contrary to law. This assignment of error is sufficient to present all questions sought to be presented. See section 61 of the Indiana Workmen's Compensation Act, Acts 1929, p. 537.

The appellant's contention is twofold: (a) That the award is not based on any competent evidence of a change of condition of the appellant, and (b) if the award is valid as for a permanent partial impairment, no previous payments are deductible.

We will take these contentions up in the order mentioned. There were four physicians who testified at the hearing and also the appellant. We have read the evidence carefully. Some of it is in conflict. After considering this evidence the board found that "there has been a change in the plaintiff's condition since the date of said full board award in this: that plaintiff's said injury has resulted in a permanent partial impairment to the extent of 10 per cent of the man as a whole."

Recently this court has said that when, as in this case, the Industrial Board has reached a conclusion as to the ultimate facts which have or have not been established, and has stated such conclusions in its finding of facts, this court must accept the facts so found as true, unless the evidence is of such a conclusive character as to force a contrary conclusion. In order to reach a contrary conclusion we, however, will not weigh the evidence nor will we disregard the reasonable inferences which the Industrial Board may have drawn from the facts which the evidence tends to establish. See L. B. Roush v. W. R. Duncan & Son (1933), 96 Ind.App. 122, 183 N.E. 410; Swing v. Kokomo, etc., Company (1921), 75 Ind.App. 124, 125 N.E. 471.

When we have applied these rules to the evidence in the instant case we cannot say that it is of such a conclusive character as to require us to say that the board erred in its finding that the appellant's condition has changed and that there has resulted a permanent partial impairment to the extent of 10 per cent of the man as a whole.

The appellant's second proposition presents the question as to whether or not the board was authorized to order that "the defendant be given credit on this award for all compensation heretofore paid." This question has been squarely before this court in a recent case and was decided adversely to appellant's contention, unless it may be said that item (h) of the schedule in section 31 of the Act is not governed by the provision of said section that the compensation awarded the employee is in lieu of all other compensation on account of his injuries. See L. B. Roush v. W. R. Duncan & Sons et al., supra. See also Standard Cabinet Company v. Landgrave (1921), 76 Ind.App. 593, 132 N.E. 661; Zeller v. Mesker et al. (1927), 85 Ind.App. 659, 155 N.E. 520; Johnson v. Cole (1928), 87 Ind.App. 678, 161 N.E. 700.

Section 31 of our Act, insofar as it is pertinent to the instant case, is as follows: "For injuries in the following schedule the employee shall receive in lieu of all other compensation, on account of said injuries, a weekly compensation of fifty-five per cent of his average weekly wages for the periods stated for said injuries respectively, to wit: Here follow items (a), (b), (c), (d), (e), (f), (g), (h), and (i) of the schedule. Item (h), under which the award was made, is as follows: '(h) In all other cases of permanent partial impairment, compensation proportionate to the degree of such permanent partial impairment, in the discretion of the Industrial Board, not exceeding five hundred weeks.'"

The appellant relies upon the case of Baltimore & Philadelphia Steamboat Company et al. v. Augustus P Morton et al. (1932), 284 U.S. Supreme Court Reports 408, 52 S.Ct. 187, 188, 76 L.Ed. 366. When this case is read and fully analyzed it lends no support to the appellant's contention. It was decided under the Longshoremen's and Harbor Workers' Act of March 4, 1927, 44 Stat. at L. 1427, Chap....