Milner v. Radio Corp. of America

• Decision Date: 03 February 1964
• Docket Number: No. 19915,No. 1,19915,1
• Citation: 136 Ind.App. 218,195 N.E.2d 875
• Parties: Hester M. MILNER, Appellant, v. RADIO CORPORATION OF AMERICA, Appellee
• Court: Indiana Appellate Court

Page 875

195 N.E.2d 875

136 Ind.App. 218

Hester M. MILNER, Appellant, v. RADIO CORPORATION OF AMERICA, Appellee.

No. 19915.

Appellate Court of Indiana, Division No. 1.

Feb. 3, 1964.

Rochford & Rochford, Paul T. Rochford, Frank A. Mueller, Frank E. Spencer, Indianapolis, for appellant.

James V. Donadio, Geoffrey Segar, Ice, Miller, Donadio & Ryan, Indianapolis, for appellee.

CARSON, Chief Justice.

This is an appeal from the full Industrial Board of Indiana. The appellant had recovered an award originally and then filed a form #14 for a review alleging a change of condition. The original award was for a three per-cent permanent partial impairment beginning on August 16, 1960, and continuing for a period of fifteen weeks at $39.00 per week. The award was made on the 14th day of October, 1961. The period for which the award was made, expired on November 28, 1960. The application for review under form #14 was filed on January 2, 1962.

There were no issues of fact before the board and the question is presented to us solely on an issue of law set out in appellant's brief, to-wit:

'* * * whether the right for review of the prior award on account of a change in conditions was limited by the passage of time prior to the rendering of the award--whether the one (1) year statutory period for filing such an application for review of an award on change of conditions commenced to run with the payment of compensation prior to the rendering of the award, determined at a later date to have been the final payment of compensation.'

THE appellee employer filed a motion to dismiss which was sustained by the board for want of jurisdiction on the ground that the form #14 filed on January 2, 1962, was not timely filed. Following this action of the board the appellant filed her praecipe for transcript, her bill of exceptions and perfected this appeal. The appellant assigns as error two propositions:

'1. The award of the full board is contrary to law.

'2. The award of the full board, dismissing the Appellant's Form #14 Application for review of award on account of a change in conditions, is contrary to law.'

A careful review of the proposition submitted by the appellant indicated that the correctness of the order of the full board must be determined by an examination of the statute applicable in this appeal, namely Acts of 1929, Ch. 172, Sec. 45, as amended by the Acts of 1947, Ch. 162, Sec. 12, and as found in Burns' 1952 Replacement, Section 40-1410.

The pertinent part of the statute governing this matter is contained in the third paragraph and reads as follows:

'* * * except that applications for increased permanent partial impairment are barred unless filed within one (1) year from the last date for which compensation was paid.'

This language is clear and unambiguous. While it is true in this case that the award was made on the 14th day of October, 1961, the appellant in her application for the increase alleged that the compensation awarded was paid for a period ending the 22nd of November, 1960, and this application was not filed until the 2nd day of January, 1962. It is therefore obvious that it was not filed within...