Lukich v. West Clinton Coal Co.

• Decision Date: 13 October 1937
• Docket Number: 15867.
• Citation: 10 N.E.2d 302,104 Ind.App. 73
• Parties: LUKICH v. WEST CLINTON COAL CO.
• Court: Indiana Appellate Court

10 N.E.2d 302

104 Ind.App. 73

LUKICH v. WEST CLINTON COAL CO.

No. 15867.

Appellate Court of Indiana, in Banc.

October 13, 1937

Stanley E. Stohr, John A. Riddle, and Chas. Fox, all of Terre Haute for appellant.

Hays & Hays, Alonzo C. Owens, John S. Taylor, and J. Olias Vanier, all of Sullivan, for appellee.

LAYMON Presiding Judge.

The record in this case discloses that on the 7th day of December, 1934, appellant filed his application for compensation with the Industrial Board of Indiana, in which application he alleged, among other things, that on the 4th day of September, 1934, he received personal injuries by reason of an accident arising out of and in the course of his employment with appellee and claimed compensation at the rate of $16.50 per week for 300 weeks' total disability. A hearing was first had before one member of the board, who found, inter alia, "that if the plaintiff is suffering or has suffered from any disability, it is not due to any accidental injury arising out of and in the course of his employment with the defendant." Upon this finding there was an award denying compensation. In due time proper application was made for a review before the full board, and on April 15, 1935, the full Industrial Board, after reviewing the evidence, made and entered the following award, which omitting the formal parts, reads as follows:

"And the Full Industrial Board having heard the argument of counsel, having reviewed the evidence and being duly advised therein, now finds for the defendant on plaintiff's application for the adjustment of claim for compensation filed on December 7, 1934, that plaintiff suffered no disability as the result of an accidental injury arising out of and in the course of his employment with the defendant.

"ORDER

"It is therefore considered and ordered by the Industrial Board of Indiana that plaintiff shall take nothing by his complaint herein and that he shall pay the costs of this proceeding."

There was no appeal taken by either party from this award of the full board.

Thereafter, on the 19th day of August, 1935, appellant filed an application for the review of award on account of a change in conditions and alleged therein, among other things, "that said award should be reviewed by said Honorable Board on account of such change in conditions upon the grounds following, to wit: That said injury has resulted in a permanent partial impairment." Appellee appeared and filed an answer in general denial and a special answer of res adjudicata. There was a hearing on these issues before a single member of the board, who found that the Industrial Board was without jurisdiction and entered an order dismissing said application. Appellant, in due time, applied for a review before the full Industrial Board, and the full board, having reviewed the record, made and entered a finding that the order entered by the single member should be set aside and held for naught and ordered the cause remanded for hearing before a single member of the board. A hearing was then had before a single member who found for appellant and that his injury had resulted in a permanent partial impairment to his arm in the amount of 75 per cent. and that appellant recover compensation at the rate of $16.50 a week beginning September 11, 1934, and continuing for the full period of 75 per cent. permanent partial impairment to the left arm. In due time appellee applied for a review before the full Industrial Board, and, on the 5th day of August, 1936, the full board made a finding setting out all of the proceedings had in said cause from the filing of appellant's original application for the adjustment of a claim for compensation on December 7, 1934, down to the date of its award, and the board further found for the appellee on appellant's application filed August 19, 1935, to review an award because of a change in conditions. Upon this finding there was an award that appellant take nothing by his complaint herein and that he pay the costs of this proceeding. It is from this last award appellant appeals, assigning as error that the award of the full Industrial Board is contrary to law.

Upon examination of the finding and order made and entered by the full Industrial Board on the 15th day of April, 1935, from which award no appeal was taken, it is apparent that the board failed to find as an ultimate fact that claimant was an employee; that he received an injury by accident; that the accident arose out of and in the course of the employment; the character and extent of such injury; and claimant's average weekly wage, which ultimate facts must be found by the board as a legal basis for an award of compensation in cases of this character.

It has been firmly established by this court that the failure of the Industrial Board to find an essential ultimate fact is the equivalent of a finding against the party having the burden of establishing such fact. Raynes v. Straats-Raynes Co. (1918) 68...