Glacier Peat Moss Co. v. Brackins, 19219

Decision Date02 April 1959
Docket NumberNo. 19219,No. 1,19219,1
Citation131 Ind.App. 279,157 N.E.2d 297
PartiesGLACIER PEAT MOSS COMPANY, Appellant, v. Roscoe BRACKINS, J. J. Long Trucking Company, Appellees
CourtIndiana Appellate Court

Tony Foster and Bingham, Summers & Spilman, Indianapolis, Walter R. Bagot, Anderson, for appellant.

Murray, Mannon, Fairchild & Stewart, Richard Guthrie, Indianapolis, for J. J. Long Trucking Co.

James A. McKown, Marion, for Roscoe Brackins.

COOPER, Chief Judge.

This is an appeal from an action before the Industrial Board of Indiana. Roscoe Brackins, appellee herein, brought the action against the Glacier Peat Moss Company, the appellant herein, and against the J. J. Long Trucking Company, an appellee herein.

A concise statement of the record is that on June 4, 1956, the appellee Brackins received an accidental injury arising out of and in the course of his employment with the Glacier Peat Moss Company and that injury consisted of injury to his neck, right arm and shoulder. Thereafter, the appellant and the appellee Brackins entered into a Form 12 Agreement as to the compensation for temporary total disability until terminated in accordance with the Workmen's Compensation Law. Burns' Ann.St. § 40-1201 et seq. This Agreement was approved by the Industrial Board, and the appellant paid Two Hundred and Two Dollars and Seventy Cents ($202.70) to the appellee Brackins for total temporary disability. The usual Form 28 was filed with the Board and appellee Brackins returned to work on July 18, 1956. Appellee Brackins' temporary total disability recurred on December 24, 1956. Thereafter the appellee Brackins filed Form 9 with the Industrial Board for the adjustment of claim for compensation making the appellee J. J. Long Trucking Company a party thereto.

The Full Industrial Board, in material substance, made the following finding and award:

'* * * That on June 4, 1956 the plaintiff was in the employ of the defendant, Glacier Peat Moss Company at an average weekly wage in excess of $55.00; that on said date he received an accidental injury arising out of and in the course of his employment with the defendant, Glacier Peat Moss Company, of which accident the said defendant had notice and furnished some of the hospital and medical supplies; that said injury consisted of an injury to plaintiff's neck, right arm and shoulder.

'It is further found that on the 14th day of August, 1956, the Industrial Board approved a compensation agreement entered into by the plaintiff and the defendant, Glacier Peat Moss Company.

'It is further found that pursuant to said compensation agreement the defendant, Glacier Peat Moss Company, paid plaintiff compensation in the total sum of $202.70 for his temporary total disability; that the plaintiff's temporary total disability on account of his said accidental injury terminated on the 18th day of July, 1956; that the plaintiff's temporary total disability recurred on the 24th day of December, 1956 and he is so temporarily totally disabled at the time of this hearing.

'It is further found that at the time of the said accidental injury the plaintiff was not in the employ of the defendant, J. J. Long Trucking Company.

'It is further found that there was a good faith effort to settle said matter as to compensation which ended in disagreement prior to the plaintiff filing his Form 9 application herein on April 4, 1957.

'The Full Industrial Board now finds for the plaintiff and against the defendant, Glacier Peat Moss Company, and finds for the defendant, J. J. Long Trucking Company and against the plaintiff on the plaintiff's Form 9 application filed April 4, 1957.

'Award

'It is Therefore Considered, Ordered and Adjudged by the Full Industrial Board of Indiana that the plaintiff recover of and from the defendant Glacier Peat Moss Company compensation at the rate of $33.00 per week, beginning December 24, 1956, and to continue until terminated in accordance with the provisions of the Workmen's Compensation Law of Indiana and that all deferred payments under this award be brought up to date and paid in cash and in a lump sum.

'It is further ordered that the plaintiff take nothing as against the defendant, J. J. Long Trucking Company.

* * *

* * *

'Dated this 14th day of June, 1958.'

This appeal followed and the appellant's proper assigned error is that the award of the Industrial Board is contrary to law. Under this assigned error, the appellant's first proposition is: 'The Full Industrial Board, contrary to law, has gone behind a prior award for claimant entered on the same accident, to find that there existed an additional injury, not found in such prior award, in order to base this award on a recurrence of disability from such injury.' With this contention, we cannot agree.

First, both the Supreme Court and our court have held that the Workmen's Compensation Law is grounded in justice and should be liberally construed to accomplish the end for which it was enacted. Pollock v. Studebaker Corporation, 1952, 230 Ind. 622, 105 N.E.2d 513; Rauh & Sons Fertilizer Co. v. Adkins et al., 1955, (T.D.1956) 126 Ind.App. 251, 129 N.E.2d 358.

Furthermore, the following receipt, originally filed with the Board affirmatively shows that said compensation for temporary total disability was subject to a review as provided for by law, and the evidence introduced at the hearing affirmatively shows that that award was not an award besed in toto on an injury entirely outside the confines of the original award:

'Received of Glacier Peat Moss Co. the sum of Two Hundred Two Dollars and Seventy Cents ($202.70) making in all, with weekly payments already received by me, the total sum of Two Hundred Two Dollars and seventy Cents ($202.70) in settlement of claims for compensation, for Temporary Total Disability._____ Subject to review as provided by Law on account of injuries suffered by Roscoe Brackins on or about the 4 day of June, 1956 while in the employ of Glacier Peat Moss Co.

'I returned to work on the 18th day of July, 1956 at a wage of $60.00 per week.'

The leading case in Indiana based upon the first proposition advanced by the appellant which has never been overruled or modified is the case of Ralph Sollitt & Sons v. Bickel, 1932, 93 Ind.App. 665, at page 669, 179 N.E. 327, at page 328, wherein this court stated:

'It is argued by the appellant that the receipt of the appellee, employee, in final settlement of compensation, which has heretofore been mentioned, has not been set aside, and that no application has been made to set it aside, and that consequently by his own admission the disability of the appellee has ceased; that the facts stated in the said receipt must be assumed to be true as of the date of the receipt, to wit, October 25, 1930, and that, if they were true on that date, and if there was no change of condition shown by the evidence, the same condition must necessarily be true as of the date of the hearing before the board. The appellant forgets that the application in the instant case before the board specifically alleged 'that the disability of said employee on account of said injury has recurred since the date of said award. That the disability of said employee on account of said injury has increased since the date of said award.' These were questions of fact upon which the full board heard evidence and made the finding heretofore set out. It is needless for us to say that, where there is competent evidence to support the finding of the board, this court will not substitute its judgment for the judgment of the board. But the appellant contends that there is no evidence in the instant case to sustain the board's finding, and that the receipt of the appellee in final settlement of compensation heretofore mentioned binds him. In both of these contentions the appellant is in error. Section 45 of the Indiana Workmen's Compensation Act, Acts 1929, c. 172, p. 536, provides that 'the power and jurisdiction of the industrial board over each case shall be continuing,' etc., and section 58 of the same act provides as follows: 'If the employer and the injured employee or his dependents disagree in regard to the compensation payable under this act, or, if they have reached such an agreement, which has been signed by them, filed with and approved by the industrial board, and afterward disagree as to the continuance of payments under such agreement, or as to the period for which payments shall be made, or (as) to the amount to be paid, because of a change in conditions since the making of such agreement, either party may then make an application, to the industrial board, for the determination of the matters in dispute.' The appellee is proceeding under the above provisions of law. This court, in several cases, has passed upon the force and effect of such a receipt of the injured employee in final settlement of compensation as was signed by the appellee in the instant case. In the case of Fort Branch Coal Mining Co. v. Farley (1921), 76 Ind.App. 37, 130 N.E. 132, 133, 131 N.E. 228, the court said: 'The beginning of the compensation period was, of course, definitely fixed in the award, but the end can come only when total disability shall have actually cased or when the maximum time shall have expired. The question is one of fact. Now, by whom and by what mothod is the fact to be determined? We conceive that the fact might be evidenced by the agreement of the parties. But suppose that an employer, by fraud or duress, induced or compelled the employee to sign a final receipt or statement to the effect that his total disability had ceased. In that event, would anyone contend that thereby the fact had been established? Suppose the parties, fairly and honestly, should enter into an agreement to the effect that the workmen's...

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5 cases
  • Bohn Aluminum & Brass Co., Plant No. 9 v. Kinney
    • United States
    • Court of Appeals of Indiana
    • August 1, 1974
    ...N.E. 161 (1925); Fort Branch Coal Min. Co. v. Farley, 76 Ind.App. 37, 130 N.E. 132, 131 N.E. 228 (1921); Glacier Peat Moss Co. v. Brackins (1959) 131 Ind.App. 279, 157 N.E.2d 297. See also, Small, Workmen's Compensation Law of Indiana, § 9.2 (1950 Ed.) The undisputed evidence presented at t......
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    ...appeal to this court, we must, of course, accept only the evidence most favorable to the appellee. Glacier Peat Moss Co. v. Brackins et al. (1959) (T.D.1960), 131 Ind.App. 279, 157 N.E.2d 297; United States Steel Corp. v. Douglas et al. (1955), 125 Ind.App. 212, 123 N.E.2d 899. This court w......
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    • Court of Appeals of Indiana
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    ...to the appellee. Collins v. Evansville State Hospital (1963), Ind.App., 189 N.E.2d 106; Glacier Peat Moss Company v. Brackins et al. (1959), (Transfer denied 1960), 131 Ind.App. 279, 157 N.E.2d 297. Further, the rule is well established that the Appellate Court may not reverse the finding o......
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