Gvozdic v. Inland Steel Co.
| Decision Date | 14 January 1927 |
| Docket Number | No. 12660.,12660. |
| Citation | 86 Ind.App. 122,154 N.E. 804 |
| Parties | GVOZDIC v. INLAND STEEL CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Industrial Board.
Application by the Inland Steel Company, employer, to review an award of compensation granted Dragic Gvozdic, employé, by the Industrial Board, and affirmed by the Appellate Court (83 Ind. App. 726, 147 N. E. 925). From an award of the Industrial Board, the employé appeals. Affirmed.
William J. Whinery, of Hammond, for appellant.
William J. McAleer, Francis J. Dorsey, Gerald A. Gillett, and Perry R. Chapin, all of Hammond, for appellee.
On September 4, 1924, appellant, while working for appellee, received a compensable injury which resulted in a temporary total disability. He filed an application for compensation, and on December 24, 1924, the Industrial Board awarded him compensation at the rate of $13.20 per week during total disability. This award was affirmed by this court May 20, 1925. 83 Ind. App. 726, 147 N. E. 925. Appellee thereafter paid appellant all compensation due him under the award for the time he was not in the employ of others at a weekly wage in excess of $24, and on November 5, 1925, filed its application for a review of the award on account of change in conditions. The full board on hearing found there had been a change in appellant's condition, that he had been and was doing light work suitable to his capacity, for which he received weekly wages in excess of $24; that he worked and received such wages from March 4, 1925, to September 3, 1925, and from October 13, 1925, to the date of the hearing February 17, 1926. From September 3 to October 13, he did no work and earned no wages. On this finding the board ordered “that the defendant pay to the plaintiff compensation at the rate of $13.86 a week from September 3, 1924, to March 4, 1925, and from September 3, 1925, to October 13, 1925,” and that appellee have credit for all amounts theretofore paid. The $13.86 so ordered paid was the amount of the original award plus the 5 per cent. increase provided for by law on affirmance of an award by this court.
[1] Appellant's first contention is that the Industrial Board should have dismissed appellee's application to review the original award. In support of this contention appellant says that, when the application for review was filed, appellee had defaulted in payment of compensation, that no compensation had ever been paid him, and that, at that time, compensation for 59 weeks and 6 days was due him. This is based on the theory that the evidence without conflict shows he was entitled to full compensation because of total disability for work, notwithstanding the uncontradicted evidence is that, during about one-half of the time, he was working and receiving wages in excess of $24 per week. This contention is not well taken. Appellee had paid compensation in full for all the time during which appellant claims he was entitled to compensation, except for the time when appellant was receiving weekly wages in excess of $24. After the original award was affirmed, appellee paid the compensation in full to March 3, 1925. The undisputed evidence is that from March 4, 1925, to September 3, 1925, appellee was working and receiving wages in excess of $24 per week; that, from the last date to October 13, 1925, appellant was not working and was not earning wages in any amount; that from October 13, to the date of the hearing he was working and earning wages in excess of $24; and that, just before filing the application for review, appellee paid appellant compensation for the time between September 3 to October 13, when he was not earning wages.
It was appellee's contention, on the hearing before the Industrial Board, that it was not in default in the payment of compensation; that it had in fact paid appellant all that was then due him. The board found this issue in favor of appellee, and, unless appellant as a matter of law was entitled to receive compensation from appellee during the time appellant was receiving wages in excess of $24, this finding of the board was correct.
The original award of compensation to appellant was in the words of the statute for an injury “causing temporary total disability for work.” Clause (j), § 9476, Burns' 1926, section 31, Workmen's Compensation Act [Acts 1919, c. 57, p. 158]). Appellant does not claim he was suffering either a total or a partial disability during the time he was working and earning wages in excess of $24. He makes no claim that he was not physically able to work during the time he was so working and earning wages.
[2] The question presented for our determination is, Is an employé who has been awarded compensation as the result of an injury resulting in a temporary total disability for work, entitled to collect such compensation for a period of time during which time he received wages in excess of $24 per week? We think this question must be answered in the negative. Indiana, etc., Corp. v. Medley (Ind. App.) 152 N. E. 285.
[3] Compensation is not a gratuity. Compensation for disability for work is intended to make good for a loss. And it has been held that an award granting compensation during total disability is virtually a self-annulling award; that is to say, its efficacy ceases when total disability ends. Fennessey's Case, 120 Me. 251, 113 A. 302.
[4] It is, however, the province of the Industrial Board, and none other, to determine whether and when the right to compensation has ceased.
The Supreme Court of Oklahoma, referring to a statute similar to our statute concerning compensation for temporary total...
To continue reading
Request your trial