Burton v. General Motors Corp.
| Decision Date | 21 February 1977 |
| Docket Number | No. 2--976A361,2--976A361 |
| Citation | 172 Ind.App. 263,360 N.E.2d 36 |
| Parties | Robert A. BURTON, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee. |
| Court | Indiana Appellate Court |
Walter E. Bravard, Jr., Richards, Bennett & Bravard, Indianapolis, for plaintiff-appellant.
Theodore L. Sendak, Atty. Gen., Charles M. Russell, Walter F. Lockhart, Deputy Attys. Gen., Michael A. Bergin, Indianapolis, for defendant-appellee.
Plaintiff-appellant Robert A. Burton (Burton) seeks review of a negative award entered by the Full Industrial Board of Indiana (the Board) which denied him benefits from the Second Injury Fund as compensation for injuries sustained while in the employ of defendant-appellee General Motors Corporation (General Motors). Burton claims that the award is contrary to law.
The facts and evidence most favorable to the Industrial Board's decision are as follows:
Burton was continuously employed by the Delco-Remy Division of General Motors Corporation from August, 1955, until May 23, 1968, at a wage in excess of the statutory minimum.
On October 8, 1962, Burton received a back injury, arising out of and in the course of his employment, for which he filed an application for Adjustment of Claim for Compensation (Form #9) with the Industrial Board. On May 13, 1965, he received a rating of 15% permanent partial impairment of the man as a whole from the Board.
On March 20, 1965, after returning to work, while assisting another worker who was using heavy equipment to move a skid, Burton was knocked off his feet and fell on some steel angle iron which penetrated his rectum and caused internal injuries. Burton received medical treatment, including surgery, and continued his employment with General Motors until May 25, 1968.
Some time subsequent to the March 20, 1965, injury and during his employment by General Motors, Burton developed a hernia while attempting to lift or move a 3000 lb. metal die-cast. Surgery followed in late 1966 or early 1967, which resulted in his loss of a testicle. During Burton's periods of disability following the injury from the angle iron and the later incident giving rise to the hernia, he was provided with medical treatment and sick benefits from General Motors.
Burton failed to file a claim for workmen's compensation with the Industrial Board in connection with either the angle iron injury or the incident giving rise to the hernia.
General Motors placed Burton on medical sick leave in May, 1968, and total disability in May, 1969. Burton then filed a complaint for damages against General Motors in Federal court on March 5, 1970, alleging fraudulent misrepresentation by General Motors in connection with the injuries of March 20, 1965, and the later hernia. As a result of the action in federal court, Burton and General Motors reached a settlement whereby Burton received a sum of $6,000 and both parties agreed that Burton had a seventy-eight per cent (78%) 'Permanent Partial Impairment' to his body at the time. The compromise settlement reached in federal court by the parties did not qualify as impairment award made under the authority and jurisdiction of the Indiana Industrial Board as the Board was not a party to the federal litigation nor was the Board petitioned by the parties to establish, by hearing or compromise agreement, an ascertainment of Burton's permanent partial impairment.
Burton claimed that by virtue of the 1965 award of the fifteen per cent (15%) permanent partial impairment resulting from his back injury and the settlement agreement arrived at in the federal court action which stated that Burton had a '78% Permanent Partial Impairment', he is now entitled to have a permanent partial impairment rating of ninety-three per cent (93%).
The Industrial Board found that the compromise settlement between the parties was not an impairment award made under the authority and jurisdiction of the Board and, as such, was not subject to recognition by the Board under the Indiana Workmen's Compensation Act. The Board also determined that Burton had been declared totally disabled by the Social Security Administration and that he had exhausted all previous benefits payable under the single award of the Industrial Board in 1965.
The Board denied Burton's claim for benefits from the Second Injury Fund (§ 33(a) of the Workmen's Compensation Act, IC 1971, 22--3--3--13 (Burns Code Ed.)), because he failed to establish that he was entitled to, received, and exhausted the maximum five hundred weeks of benefits available under Section 31(a)(2) (IC 1971, 22--3--3--10(a)(2), or Section 31(b)(3) (IC 1971, 22--3--3--10(b)(3). Burton instituted appellate proceedings on October 7, 1976, with the filing of his Record of Proceedings.
In his assignment of errors, Burton asks this Court to find that the Order of the Industrial Board denying him an award from the Second Injury Fund is contrary to law; is not based on sufficient facts to sustain the order; and is not based on sufficient evidence to sustain the findings of fact.
Burton acknowledges that this Court's scope of judicial review of an award by the Industrial Board is limited to the examination of evidence of sufficient probative value to sustain the Board's decision. 2 Smith v. Graver Tank & Mfg. Co. (1973), Ind.App., 302 N.E.2d 852.
The Industrial Board may be reversed only if it should appear to this Court that the evidence was devoid of probative value and that the quantum of legitimate evidence in support of the Board's finding was so proportionately meager as to show that the findings did not rest upon a rational basis or that the results must have been substantially influenced by improper considerations. Pollock v. Studebaker Corp. (1952), 230 Ind. 622 at 625, 105 N.E.2d 513 at 514.
It has long been stated that the Industrial Board's findings will not be disturbed on review by the Court of Appeals unless the evidence is undisputed and leads conclusively to a result contrary to that reached by the Board. Gordon Landscaping, Inc. v. Bowers (1975), Ind.App., 325 N.E.2d 520.
This Court's review of the negative award herein is confined to an examination of the evidence in order to determine whether the Board's finding was not based upon a substantial factual foundation. Callahan v. Lovelace Truck Service (1973), Ind.App., 301 N.E.2d 801. Before there can be a reversal of a negative award of the Industrial Board on the basis of evidence, it is necessary that all the evidence be in appellant's favor and be so conclusive in its nature and character as to force conclusions in the minds of reasonable men which are contrary to that reached by the Board. Davis v. Webster (1964), 136 Ind.App. 286, 198 N.E.2d 883.
It is the burden of the claimant-appellant of a negative award to prove his right to compensation. Dooley v. Richard's Standard Service (1969), 145 Ind.App. 470, 251 N.E.2d 449.
The proper procedure for Burton to secure compensation for injuries suffered as a result of his employment is to file an Application for Compensation (Form #9) within two years from the date of the injury as required by IC 1971, 22--3--3--3 (Burns Code Ed.):
Here, Burton failed to avail himself of the protection of the Workmen's Compensation Act. He did not file a Form #9 for either the angle iron injury of March 20, 1965, or the subsequent incident concerning the hernia although he was aware of the proper procedure for such an application, having previously received an award for a back injury in 1962. Neither was a Compensation Award executed between the parties and approved by the Industrial Board.
In the past, the Indiana Court of Appeals has given careful consideration to statutory time limitations such as the two-year limitation for filing a claim as found in IC 1971, 22--3--3--3 (Burns Code Ed.). As Judge Sharp stated in Wawrinchak v. United States Steel Corp., Gary Works (1971), 148 Ind.App. 444 at 451, 267 N.E.2d 395 at 399:
"A statute of limitations should be differentiated from conditions which are annexed to a right of action created by statute. A statute which in itself creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action of the time it fixes is an indispensable condition of the liability and of the action which it permits. The time element is an inherent element of the right so created, and the limitation of the remedy is a limitation of the right. Such a provision will control, no matter in what form the action is brought. The statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability. Whether an enactment is of this nature, or whether it is a statute of limitations, should be determined from a proper construction of its terms.' 34 Am.Jur., Limitation of Actions, § 7, page 16; Wilson...
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