Palmeri v. Riggs-Sargent, Inc.
| Citation | 261 N.E.2d 887,147 Ind.App. 430 |
| Decision Date | 09 September 1970 |
| Docket Number | No. 1169A210,No. 1,RIGGS-SARGEN,INC,1169A210,1 |
| Parties | Francis PALMERI, Appellant, v., Appellee |
| Court | Court of Appeals of Indiana |
John M. Lyons, Valparaiso, for appellant.
Larry G. Evans, Valparaiso, for appellee.
The issue presented to this court for review is whether the Industrial Board of Indiana properly dismissed appellant's petition for adjudication of permanent-partial disability as it was not filed within the two year limitation from the last day for which compensation was paid under the original award of the Industrial Board, dated February 16, 1966.
The chain of events in this cause is as follows. On April 12, 1965, appellant, plaintiff below, sustained an injury while in the course of his employment with appellee, defendant below. Four months later, on August 16, 1965, appellant timely filed his application of injured employee, which is Form No. 9. Defendant then filed its special answer on October 22, 1965, which alleges, in substance, that appellant refused medical attention offered by the employer. A hearing was had by the single hearing officer and on October 29, 1965, an award was made for plaintiff, compensating him for temporary total disability at the rate of $45.00 per week, beginning the 5th day of May, 1965, until the 23rd day of July, 1965. This award also included certain hospital and medical expenses and attorney fees.
Defendant appealed this decision to the full Board and on the 16th day of February, 1966, the full Board affirmed the single hearing officer. Thereafter, on December 9, 1968, plaintiff filed his Petition for Adjudication of Permanent Partial Disability, to which appellee filed its special answer, alleging that the petition was not timely filed since it was beyond the statutory limitation of two years. Thus, the full Board, on October 13, 1969, sustained the individual hearing officer and dismissed appellant's petition for adjudication of permanent partial disability. Subsequently, appellant filed his assignment of errors, alleging that the award of the Industrial Board is contrary to law.
Appellant argues that his original Form 9 application, which was timely filed four months after the accident, included a request for permanent partial disability in addition to total temporary disability. He further maintains that the request for permanent partial disability was never ruled on by either the individual hearing member or the full Board and that his petition for adjudication of permanent partial disability which was filed over two years later was nothing more than a request for a hearing on an issue timely filed four months after the accident. Appellant also contends that because of the nature of the special answer, he was denied an opportunity to submit the necessary facts to the Board which would enable them to determine whether he had been permanently disabled. In essence, appellant, in his final prayer, asks this court to adjudicate what apparently has not been adjudicated.
Appellee contends, however, that appellant's petition for adjudication of permanent partial disability is an application to modify the award of the full Industrial Board of February 16, 1966, and thus has not been timely filed, pursuant to Burns' Stat. § 40--1410, because it was filed more than two years from the last day for which compensation was paid under the original award.
The two year limitation on filing for modifications is not the issue that this court is to concern itself with in the case at bar.
We are confronted with the issue as to whether the award of the full Board on appellant's Form 9, which was silent as to permanent partial disability, was a full and final adjudication of Form 9 in its entirety.
Pursuant to the new Rules of the Supreme Court, this court made a complete search of the transcript, to the end that justice might prevail. The transcript was silent on the issue of permanent partial imimpairment and the court remanded the cause to the full Industrial Board, which was directed to make and enter its findings on that part of Form 9 as to permanent partial impairment.
The full Board promptly responded and filed its response to said order, which, omitting the formal and preliminary parts, is in the words and figures as follows, to-wit:
'And the Full Industrial Board being advised in the premises now makes the following findings pursuant to the Order of the Appellate Court:
'That the original hearing on plaintiff's Form 9 application was limited to the questions of temporary total disability and medical payments, that such limitation was at the request of the parties and with the knowledge of the plaintiff; that at said hearing there was no evidence submitted and no issue presented on the issue of permanent partial disability or permanent partial impairment;
'That after said initial hearing and award for the plaintiff the plaintiff did not file any additional pleadings, forms or requests for a hearing on a change in condition for permanent partial disability or permanent partial impairment as required by the Acts of 1929, 172, Section 45, as amended and as found in Burns' (1965 Replacement), Section 40--1410 but rather filed such a petition more than two years beyond the last date for which he had been paid compensation under the original award of the Industrial Board.
'That by reason of the plaintiff's failure to submit evidence on the question of permanent partial disability or permanent partial impairment at the original hearing and by further reason of his failure to file an application for changed conditions within the statutory time period the Board is without jurisdiction to determine his degree of disability of impairment and is without evidence to make any findings thereon in compliance with the Order of the Appellate Court.'
The record is now clear that the original hearing on appellant's form 9 application was limited to the one specification, namely, temporary total disability and medical payments, and that such request was made by the parties and with the...
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...appeal was taken from the award and there were no issues left undecided or pending following the award. See Palmeri v. Riggs-Sargent, Inc. (1970), 147 Ind.App. 430, 261 N.E.2d 887; Smith v. Brown (1924), 81 Ind.App. 667, 144 N.E. On his subsequent form 14 application he stated on line two: ......
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