Fort Wayne Public Library v. Kintanar
| Decision Date | 08 June 1977 |
| Docket Number | No. 2--1176A445,2--1176A445 |
| Citation | 363 N.E.2d 1034,173 Ind.App. 269 |
| Parties | FORT WAYNE PUBLIC LIBRARY and Public Library of Fort Wayne-Allen County, Defendants-Appellants, v. Patria KINTANAR, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
William E. Borror, Hunt, Suedhoff, Borror, Eilbacher & Lee, Ft. Wayne, for defendants-appellants.
Jerome J. O'Dowd, Ft. Wayne, for plaintiff-appellee.
The defendants-appellants, Fort Wayne Public Library and Public Library of Fort Wayne-Allen County (Library), appeal from an award of the Industrial Board of Indiana in favor of the plaintiff-appellee, Patria Kintanar.
The Board's findings and award were based upon the following facts and stipulations:
Patria Kintanar was employed by the Fort Wayne Public Library in the technical processes department at an average weekly wage of $73.85 at the time of this accident, Friday, January 12, 1973. Kintanar operated a glue machine, and on the day in question, was returning the mahine to its frame when she felt a snap in her left wrist. Her hand collapsed and the machine dropped from her grasp onto her left hand.
Mrs. Kintanar testified that following the accident she noticed a small dent in her left wrist, felt a prickling sensation in her wrist, and finally lost all feeling in the wrist. Mrs. Kintanar was referred by her family doctor to Dr. Steven Glock, an orthopedic surgeon. Dr. Glock, aided by Dr. Louis Romain, diagnosed Mrs. Kintanar's injury as the carpal tunnel syndrome, a condition in which the median nerve is trapped between the bones on one side and the transverse carpal ligament on the other as it enters the wrist. Dr. Glock recommended surgery for the wrist condition, and on February 13, 1973, performed surgery on Mrs. Kintanar's wrist. Following the operation, Mrs. Kintanar responded favorably, and on March 19, 1973, Dr. Glock authorized her to return to work. Kintanar testified that after returning to work she continued to experience pain in her left wrist and finally went to Dr. Romain for further treatment in May of 1974.
On January 2, 1975, Mr. Kintanar filed a Form 9 application with the Board. Her case was initially heard before an individual hearing member on December 3, 1975. The individual hearing member awarded Mrs. Kintanar nothing by way of her application. Thereafter, she timely filed a Form 16 application seeking review before the full Board. On September 15, 1976, the Board heard Kintanar's case, and on November 1, 1976, entered the following award in her favor:
'IT IS THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Full Industrial Board of Indiana that there be awarded plaintiff was against defendant nine (9) weeks temporary total disability at the rate of $44.31 per week.
IT IS FURTHER ORDERED that plaintiff be awarded 25 weeks of permanent partial impairment for her 10% impairment to the left upper extremity at the rate of $44.31 per week.
IT IS FURTHER ORDERED that defendant furnish or reimburse plaintiff in the amount of $4,602.96 for medical care, attention, hospital services and supplies.
IT IS FURTHER ORDERED that all deferred payments of compensation shall be brought up to date, paid in cash and in a lump sum.
IT IS FURTHER ORDERED that the defendant shall pay the costs, if any, taxed in this cause.
IT IS FURTHER ORDERED that all monies payable by virtue of this Award shall be paid direct to plaintiff except as hereinafter ordered paid plaintiff's attorney.
IT IS FURTHER ORDERED that the fees of plaintiff's attorney shall be: a minimum fee of $50.00; and in addition thereto, 20% upon the first $5,000 recovered; 15% upon the second $5,000 recovered, and 10% upon all recovery in excess of $10,000; said fees to be paid by the defendant direct to plaintiff's attorney, Jerome J. O'Dowd, with credit to defendant against compensation herein awarded plaintiff for all sums paid out as attorney fees in accordance with this Award.
IT IS FURTHER FOUND that the defendant may not contest the issue of an accident when there has previously been executed a Form 12 Agreement concerning the existence of an accident.'
The Library assigns as error on appeal that the award of the Board is contrary to law. This assignment is sufficient to present all questions sought to be raised.
We have reviewed the record and the parties' briefs and are of the opinion that the Board's award is erroneous and contrary to law. We therefore, reverse and remand.
The Library argues, and we agree, that the Board erred in finding that the Library (employer) could not contest liability at the hearing on Kintanar's Form 9 application. Apparently the Board concluded as a matter of law that the Library admitted liability when it entered into an agreement with Kintanar to pay temporary total disability. For the reasons stated below, we find this...
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State v. Puckett
...mere purpose of permitting an employer to re-examine the merits of his confession of liability. Cf. Fort Wayne Public Library v. Kintanar (1977) 1st Dist., 173 Ind.App. 269, 363 N.E.2d 1034. We therefore hold that the State's claim for recovery of the amounts paid pursuant to the Workmen's ......
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...for all purposes be enforceable by the court, and has the same effect as any award the Board might have made. Ft. Wayne Public Library v. Kintanar, (1977) Ind.App., 363 N.E.2d 1034; Evans v. Enoco Collieries, Inc., (1964) 137 Ind.App. 11, 202 N.E.2d 595; In re Stone, (1917) 66 Ind.App. 38, ......
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