McGinnis v. American Foundry Co.

• Decision Date: 18 April 1958
• Docket Number: No. 18957,18957
• Citation: 128 Ind.App. 660,149 N.E.2d 309
• Parties: Luddie McGINNIS, Appellant, v. AMERICAN FOUNDRY COMPANY, Inc., Appellee.
• Court: Indiana Appellate Court

Page 309

149 N.E.2d 309

128 Ind.App. 660

Luddie McGINNIS, Appellant, v. AMERICAN FOUNDRY COMPANY, Inc., Appellee.

No. 18957.

Appellate Court of Indiana, In Banc.

April 18, 1958.

Rehearing Denied May 26, 1958.

Transfer Denied July 10, 1958.

Henry J. Richardson, Jr., Indianapolis, for appellant.

James V. Donadio, R. Stanley Lawton, Edward J. Ohleyer, Indianapolis, Ross, McCord, Ice & Miller, Indianapolis, of counsel, for appellee.

KELLEY, Chief Judge.

Appellant is the widow of George McGinnis, deceased. On January 27, 1955, she filed with the Industrial Board of this state her application Form No. 116 for adjustment of her claim for compensation from appellee, as a dependent of the decedent, who, it was alleged, died as the proximate result of an occupational disease contracted by him in the course of his employment by appellee. The latter filed its answer to said application and alleged therein that the Industrial Board was without jurisdiction in the cause for the reason, inter alia, that decedent's death as a result of an alleged occupational disease, did not occur within (1) year after the date of disablement. Appellant replied to said answer by denial and by further alleging that after disability and during the running of the 'Statute of Limitations' the decedent was 'mentally disabled and incompetent' and said 'Statute of Limitations' has not run to 'bar' the appellant.

The Full Board found, in material substance:

'That as a result of an alleged occupational disease the plaintiff's decedent, * * * became disabled on March 12, 1953 and died on June 23, 1954. * * * that the death of * * *, plaintiff's decedent, did not occur within one year after the date of disablement as a result of any occupational disease; that at the time of his death no claim whatsoever was pending before the Industrial Board * * * and that no agreement had been filed or a decision rendered fixing a period of disablement in said cause, at the time of his said death.

'* * * That during the decedent's period of alleged disablement up to the time of his said death, he was an adult and was not mentally incompetent. * * * that plaintiff's application * * * for the adjustment of claim for compensation * * * should be dismissed for want of jurisdiction.'

and entered an order dismissing appellant's application for want of jurisdiction.

Appellant appeals from said award, charging that the same is contrary to law. This attack on the award is predicated upon appellant's contentions that----

1. Decedent was mentally incompetent during the period of his disability and, therefore, under the provisions of Sec. 40-2225(d), Burns' 1952 Replacement, the 'Statute of Limitation,' Sec. 40-2225(c), Burns' 1952 Replacement, did not run against decedent and consequently, his rights to claim compensation were never barred and are available to her as his dependent notwithstanding the provisions of Sec. 40-2205(f), Burns' 1952 Replacement.

2. Decedent died within a year from the date of his disablement because the date of disablement is the date of diagnosis of the disease whereby it becomes apparent and the employee learns that his disability is the result of an occupational disease.

Appellant also proposes that to bar her claim is a denial of her constitutional rights of due process and equal protection of the law; and that the provisions of the applicable statutes are so rigorous as to call for the interposition of the equitable arm of the court.

It appears from the record that decedent was in the employment of appellee from February 26, 1945 to March 12, 1953. On the latter mentioned date decedent went home ill and entered the hospital on May 26, 1953, where he remained until his death on June 23, 1954. During the entire period from March 12, 1953 to June 23, 1954 decedent was unable to work at any employment and was disabled from earning full wages at the work at which he had last been engaged for appellee. Decedent filed no claim for compensation and there was no agreement for compensation nor any decision of a claim which was in the process of rehearing, review or appeal at the time of his death. The major portion of the evidence submitted to the Board concerned the physical and mental condition of decedent during the period of his last illness and was given in support of appellant's claim that decedent was mentally incompetent within the meaning of Sec. 40-2225(d), Burns' 1952 Replacement, 'almost continuously from the date he last worked for the appellee.'

Sec. 40-2205(f), Burns' 1952 Replacement provides:

'No compensation shall be payable for or on account of death resulting from any occupational disease unless death occurs within one (1) year after the date of disablement: Provided, That this paragraph shall not be a bar to compensation for death (a) where death occurs during the pendency of a claim filed by an employee within one (1) year from the date of disablement and which claim has not resulted in a decision or has resulted in a decision which is in process of review or appeal, or (b) where, by agreement filed or decision rendered, a compensable period of disability has been fixed and death occurs within one (1) year after the end of such fixed period, but in no event later than three hundred (300) weeks after the date of disablement. (Acts 1937, ch. 69, § 5, p. 334).'

and Sec. 40-2205(d), Burns' 1952 Replacement, defines 'Disablement' as follows:

'The term 'disablement' means the event of becoming disabled from earning full wages at the work in which the employee was engaged when last exposed to the hazards of the occupational disease by the employer from whom he claims compensation, or equal wages in other suitable employment and 'disability' means the state of being so incapacitated.'

Appellant says that the 'date of disablement within the meaning of Burns' Sec. 40-2205(d) means 'compensable disablement' which presupposes diagnosis of an occupational disease.' There is a letter in evidence in which a statement is made that the staff of the Flower Mission Hospital made 'a diagnosis of silicotuberculosis on December 18, 1953.' Appellant contends therefrom that the date of decedent's disablement was December 18, 1953 and, therefore, decedent died within one year from such date of disablement and, consequently, that appellant's claim was not barred by the provisions of said Sec. 40-2205(f), Burns' 1952 Replacement. To render appellant's contention meritorious, would require us to declare that the Board erred in determining that March 12, 1953 was the date on which decedent became disabled.

The Occupational Diseases Act, Sec. 40-2205(d), Burns' 1952 Replacement, has defined the term 'disablement' for the purpose of the Act and that definition was adopted by the decedent and appellee and became a part of the contract between them. See Oberg v. D. O. McComb & Sons, Ind.App.1957, 141 N.E.2d 135. As we understand her, appellant seems to urge that the test of disablement, for the purpose of ascertaining the date or time of commencement thereof, lies in the discovery by the employee of the nature or kind of the disease afflicting him. However, the test of disablement prescribed by said Sec. 40-2205(d) lies in the disability to earn full wages either at the work last engaged in by the employee for the employer from whom compensation is claimed or at other suitable employment affording equal wages with those paid by said charged employer. In other words, if the employee becomes so far disabled that he cannot work sufficiently to earn the full wages paid for the work in which he was last engaged for the employer liable for the compensation, or is so far disabled that he cannot work sufficiently in other suitable employment offering at least equal wages, said employee has suffered a disablement.

The time or date of such disablement, as provided in the Act, is the 'event' of becoming so disabled. An 'event' is that which follows from the cause (Gore's Case, 9 Coke 80a, 81b, 77 Reprint 853) and it refers not to futurity but has reference to something that has taken place which, however, is not an event until something happens. It becomes an event when it does happen. Thomson v. Hayes, 1908, 59 Misc. 425, 111 N.Y.S. 495, 497. Applying such definition to the wording of the statute now being considered, it seems clear that the event of disablement denotes the time when the happening of the inability of the employee to work and earn full wages occurs. The cause of the disability may be the occupational disease but the time or event of disability, as referred to in the statute, is not the time when the nature or kind of the occupational disease is discovered or made known, but the time or event when the employee becomes unable to earn full wages at the work in which he was last engaged or at other suitable work with equal wages. In the case at hand it is stipulated by the parties that the decedent was unable to work from March 12, 1953 to the time of his death and the Board found that decedent became disabled on March 12, 1953. Such finding conforms to the...