Frazier v. Knox Consol. Coal Corp.

• Decision Date: 30 January 1943
• Docket Number: No. 16981.,16981.
• Citation: 112 Ind.App. 649,46 N.E.2d 275
• Parties: FRAZIER v. KNOX CONSOLIDATED COAL CORPORATION.
• Court: Indiana Appellate Court

112 Ind.App. 649

46 N.E.2d 275

FRAZIER

v.KNOX CONSOLIDATED COAL CORPORATION.

No. 16981.

Appellate Court of Indiana, in Banc.

January 30, 1943.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Marshall Frazier, claimant, opposed by Knox Consolidated Coal Corporation, employer. From an award of the Full Industrial Board denying compensation on account of temporary, total disability, claimant appeals.

Award affirmed.

Frank Hamilton, of Indianapolis, for appellant.

Hays & Hays, of Sullivan, for appellee.

BLESSING, Chief Justice.

This is an appeal from an award of the Full Industrial Board denying appellant compensation on account of temporary total disability.

The evidence is not in the record and appellant is relying on the finding of facts of the Industrial Board to sustain his contention that the award is contrary to law in that it is not supported by the findings.

We quote such parts of the finding of the Industrial Board as are necessary to an understanding of our decision in this cause:

“The full Industrial Board, having heard the evidence, reviewed the findings and being duly advised therein, now finds: that on January 4, 1936, the plaintiff was in the employ of the defendant at an average weekly wage of $30.00; that on said date the plaintiff sustained an injury as the result of an accident arising out of and in the course of his employment of which the defendant had knowledge and furnished the necessary medical attention.

“The full Industrial Board further finds that thereafter on August 6, 1936, the plaintiff filed with the Industrial Board of Indiana his Form 9 application for the adjustment of compensation, alleging as the result of said accidental injury, he suffered a broken jaw and a bursted ear drum.

“The full Industrial Board further finds that the above cause was called for hearing on said Form 9 application, filed August 6, 1936, before the Industrial Board of Indiana, by Sam P. Vogt, Member, at Vincennes, Indiana, on December 7, 1936.

“The plaintiff appeared in person, and by Charles Fox, his attorney.

“The plaintiff then moved to amend his said complaint by inserting 'Two hundred weeks for 40% permanent partial impairment as a man', to which motion there was no objection on the part of the defendant, and said complaint was so amended, all of which is shown by an order of the Industrial Board by Sam P. Vogt, Member, dated December 16, 1936; that thereafter on January 19, 1937, at Vincennes, Indiana, said cause on said application Form 9, filed August 6, 1936, was submitted to the Industrial Board for trial, finding and judgment, before William A. Faust, Member, and the case was tried upon the issue of permanent partial impairment of plaintiff as a man.

“The evidence was introduced by plaintiff and defendant by each of said parties placing witnesses upon the stand, until each of said parties had announced the parties rested their cases, and thereupon, at the conclusion of said trial of said cause, the case was submitted to the Industrial Board, William A. Faust, Member, for finding and judgment; that on January 27, 1937, the Industrial Board of Indiana, by William A. Faust, Member, made a finding that on January 4, 1936, at an average weekly wage in excess of $30.00, plaintiff received personal injuries by reason of an accident arising out of and in the course of his employment with defendant herein, which resulted in a 45 per cent loss of hearing in his left ear, and on such finding made an award awarding plaintiff as against defendant herein forty-five (45) weeks compensation, at the rate of $16.50 per week, beginning the 4th day of January, 1936, and ordered that the full amount of same be paid plaintiff in cash and in a lump sum; that said finding was never appealed from, modified, changed or set aside, and now is in full force and effect; that defendant paid said compensation of forty-five (45) weeks in accordance with the terms of said award to plaintiff herein.

“The full Industrial Board further finds that on October 5, 1940, plaintiff filed another Form 9 application for the adjustment of a claim for compensation; that as the result of said accidental injury sustained January 4, 1936, the plaintiff was not disabled and continued to work without loss of time from date of injury, January 4, 1936, until July 5, 1940; that subsequent to said injury, minieres developed in the left side of plaintiff's head and ear, and as the result of said injury and disease, plaintiff became totally disabled on July 5, 1940, and that it became necessary for the plaintiff to undergo an operation, which was performed at the Methodist Hospital, Indianapolis, Indiana, on July 30, 1940, by Dr. E. V. Hahn; that plaintiff was totally disabled from July 5, 1940, and remained totally disabled until June 19, 1941, at which time the plaintiff was able to return to work.

“The full Industrial Board now finds for the defendant and against the plaintiff on plaintiff's application Form 9, filed October 5, 1940.”

The Board also found in favor of the defendant on a special answer, but said finding in no wise controls the determination of this appeal.

The finding of the Board is followed by an award to the effect that plaintiff take nothing by his Form 9 application filed with the Industrial Board on October 5, 1940, and taxes the costs, if any, to the plaintiff.

It is the contention of the appellant that, since the finding of the Board discloses that the appellant suffered no disability prior to the award of compensation for permanent partial impairment, the temporary total disability suffered by appellant, which first manifested itself on July 5, 1940, gave rise to a new and original right of action, and that his application for...