In re Smith

• Decision Date: 29 March 1945
• Docket Number: 17354.
• Citation: 60 N.E.2d 147,115 Ind.App. 494
• Parties: In re SMITH.
• Court: Indiana Appellate Court

60 N.E.2d 147

115 Ind.App. 494

In re SMITH.

No. 17354.

Appellate Court of Indiana, in Banc.

March 29, 1945

Appeal from Industrial Board.

Proceeding in the matter of Frank F. Smith, wherein the State Industrial Board on its own motion presented a written statement of facts and, based thereon, certified a question of law of the Appellate Court for decision and determination pursuant to section 61, Indiana Workmen's Compensation Act of 1929 Acts 1929, c. 172, § 61.

Certified question answered.

Hays & Hays, of Sullivan, and Stanley E Stohr, of Terre Haute, for appellant.

James A. Emmert, Atty. Gen., and Forrest P. Jones, Deputy Atty Gen., for appellee.

ROYSE Judge.

Pursuant to § 61 of the Indiana Workmen's Compensation Act of 1929, Acts 1929, c. 172, the Industrial Board of Indiana, on its own motion, presents herein a written statement of facts and, based thereon, certifies a question of law to this court for decision and determination. The facts so presented are as follows 'On January 27, 1942, the above named Frank F. Smith, hereinafter called employee, received an injury from an accident arising out of and in the course of his employment with Walter Bledsoe & Company, hereinafter called employer; that on February 26, 1942, employee and employer entered into a Form 12 compensation agreement as prescribed by the Industrial Board of Indiana wherein it was agreed the average weekly wage of said employee at time of said injury was $30; that he should receive compensation at the rate of $16.50 per week during total disability not exceeding period and amount fixed by law beginning February 4, 1942, and that employer should pay the necessary and reasonable surgical, medical and hospital expenses of the employee for the first ninety days after the injury; that said agreement was approved by the Industrial Board of Indiana on April 2, 1942; that employee and employer complied with the terms of said agreement, including payment by employer to employee of compensation in total amount $82.50 for total disability of employee resulting from said injury, which total disability ended March 10, 1942; that employee executed his Form 28 receipt evidencing payment by employer of said total disability compensation for said period; that thereafter employee and employer disagreed on the question of the amount of permanent partial impairment employee had sustained to the vision of his right eye as the result of said injury, and thereafter employee on January 19, 1943, filed his Form 14 application for the review of said agreement-award on account change in conditions on the ground that said injury had resulted in a permanent partial impairment; that said application was set for hearing before the Industrial Board of Indiana at the courthouse at Terre Haute, Vigo County, Indiana, July 21, 1943, at nine o'clock a.m., and employee and employer were duly notified of the time and place of said hearing; that at the hearing before the Industrial Board July 21, 1943, employee and employer, among other things, stipulated certain facts, which facts for the purposes of the certified question herein set forth are true, as follows: 'That on May 6 and 7, 1943, and July 8 and 9, 1943, the plaintiff (employee) at the request of employer defendant, during that part of the day on each date on which there was a shift of work available for him at his per day wage scale of $7 per day, went to and returned from St. Louis, Missouri, for medical examination relating to the question of permanent partial impairment to the vision of his eye in this case. As to question of defendant's liability for said four days of lost wage incurred under said circumstances the parties submit the facts to the Board for determination, under the law passed by the 1943 Legislature providing that in certain cases the employer should pay wages lost by an injured employee arising out of the employee's compliance with the employer's request that the employee go and be examined for his condition in connection with a compensable injury'. The aforesaid wage scale of $7 per day was the average daily wage of employee in said employment.

'Upon the foregoing facts, and Section 27 of the Workmen's Compensation Act of 1929, as amended by the General Assembly of 1943 by an Act known as Engrossed House Bill No. 11, being Chapter 136 of the Acts of 1943, signed by the Governor March 5, 1943, which Act had an emergency clause providing the Act shall be in full force and effect on and after April 1, 1943, the applicable part of said Section 27 being as follows:

"After an injury and during the period (period) of resulting disability or impairment, the employee, if so requested by his employer * * * shall submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer. * * *; and if such examination or travel causes any loss of working time on the part of the employee, the employer shall reimburse him for such loss of wages upon the basis of his average daily wage.' (The...