Roush v. W. R. Duncan & Son

• Citation: 183 N.E. 410,96 Ind.App. 122
• Decision Date: 08 December 1932
• Docket Number: 14,745
• Parties: ROUSH v. W. R. DUNCAN & SON ET AL
• Court: Court of Appeals of Indiana

183 N.E. 410

96 Ind.App. 122

ROUSH v. W. R. DUNCAN & SON ET AL

No. 14,745

Court of Appeals of Indiana

December 8, 1932

Rehearing denied February 23, 1933.

From Industrial Board of Indiana.

Proceedings under the Workmen's Compensation Act by L. B. Roush claimant, opposed by W. R. Duncan & Son, employer, and another. From an order of the Industrial Board denying a review of the award, claimant appealed.

Affirmed.

Samuel E. Cook, for appellant.

H. L McCray, Edward J. Boleman, Burrell Wright, and Jacob S. White, for appellees.

OPINION

CURTIS, C. J.

This was an application by the appellant for a review of an award of the Industrial Board of Indiana. The hearing member decided against the appellant, who then filed an application for a review by the full Board. From the order of the latter the appellant has appealed.

It is thought that the issues can be best understood by setting forth the principal terms of the stipulation entered into by the parties before the Board. It is as follows: "That on December 13, 1928, the plaintiff sustained an injury to his right leg, while in the employ of said W. R. Duncan & Son as a carpenter, by an accident in falling from a scaffold and arising out of and in the course of said employment in the City of Huntington, Huntington County, Indiana.

"That the average weekly wages of said employee at the time of said injury exceeded $ 30.00 per week.

"That on December 28, 1928, said employer and employee made and entered into a written agreement as to compensation in which it was agreed that said employee should receive compensation at the rate of $ 16.50 per week during total disability not exceeding the period fixed by law beginning on December 21, 1928.

'That said agreement was duly executed by said parties and filed with said Industrial Board and was approved by it on January 10, 1929.

"That said employer made said payments for 57 weeks or until January 28, 1930.

"That on January 28, 1930, said employer and employee made and entered into a second agreement in writing in which it was agreed that said employee should receive as compensation for said injury at the rate of $ 16.50 per week for 200 weeks beginning on December 21, 1928, on account of the total loss of the use of the right leg and not exceeding five thousand dollars; that said agreement was executed by said parties and filed with said Board and duly approved by it on February 6, 1930, which is still in full force and effect.

"That afterwards, on January 28, 1930, said employer and employee made and entered into a third written agreement in which it was agreed that on December 13, 1928, said employee had received personal injuries by an accident arising out of and in the course of his employment while in the service of said employer; that by the agreement approved by said Board the weekly compensation liability of said employer to said employee was fixed at $ 16.50 per week for 200 weeks; that said employer had made said weekly payments in the manner and at the times fixed in said agreement for 57 weeks; that said employee and employer have agreed that 143 weeks of the remainder of said weekly compensation liability may be redeemed by the cash payment of said employer to said employee of a lump sum in such an amount as may be fixed by said Board; that it will be to the best interest of said injured employee that so much of such weekly compensation liability be redeemed by the cash payment of a lump sum for the following reasons: 'The injured employee has a condition in his right leg which has a strong possibility of being materially benefited by a further operation necessitating prolonged confinement in hospital and home and desires lump sum settlement so that he may meet this expense as well as provide for his family during this interval.'

"That said employee and employer prayed in said agreement that the Board approve it and to fix the amount of the lump sum by which 143 weeks of said compensation liability may be redeemed by a cash payment.

"That said agreement was duly executed by said parties and filed with and approved by said Board on February 6, 1930; that in approving said agreement said Board fixed and provided the amount of said 143 weeks of weekly compensation liability may be redeemed by a cash payment in a lump sum of $ 2,265.50 which was paid by said employer to the plaintiff.

"That afterwards, on February 10, 1930, the plaintiff executed a receipt to said employer showing he had received said $ 2,265.50 making in all, with the weekly payments already received by said employee, the total sum of $ 3,239.00.

"That said receipt was intended by said parties to correspond with said last described agreement and to cover the statutory period of 200 weeks for the total loss of the use of said right leg, but by the mutual mistake of the scrivener who prepared said receipt and of said parties said scrivener wrote it therein: '100 weeks for total loss of right leg.'

"That afterwards, on February 1, 1932, the plaintiff made a demand of said employer that it resume said weekly payments for disability for work as provided in said original award and to continue the same until said balance of $ 5,000.00 is paid; that said defendants have refused to resume said payments and said parties have disagreed as to the resumption and continuance of said payments and compensation."

The first paragraph of the appellant's application for review contained the following allegations: "That the disability of said employee on account of said injury has recurred since the date of said award.

"That the disability of said employee on account of said injury has increased since the date of said award.

"That the disability of said employee on account of said injury did not end on January 28, 1930, and never has ended.

"That said injury has resulted in a permanent partial impairment." The appellant also filed a second paragraph in his application for review, much of which is covered by the stipulation heretofore set forth. In said paragraph it is also alleged that a further operation, as mentioned in the stipulation, was performed in an unsuccessful attempt to reduce the fracture and that the appellee refused to have said operation performed and refused to pay for the same and that the appellant was compelled to pay out over $ 600.00 for said operation. It is also alleged: That the appellant understood that said 57 weeks were paid on his disability and that he should receive 200 weeks for the loss of the use of his leg; that he had no attorney at the time of said lump sum agreement, and "had no knowledge of the provisions of the compensation law in relation to the separate liability of said employer for loss for disability to perform work and loss for the use of said limb;" that "on account of the action of said defendant (appellee) in so applying said payments, they did not pay him for 200 weeks but only paid him for 143 weeks and for that reason they have not paid him anything on the compensation for the 500 weeks for said disability to perform work," and that under said first agreement and award the appellant was and now is entitled to compensation during the continuance of total disability to perform work as a carpenter or other similar work, not exceeding 500 weeks; that the injured limb is stiff and sore and that it pains and aches continually and that since said first award said limb has gradually grown worse and that he is totally disabled from performing any work as a carpenter or any other similar work or any kind of work at all. The prayer of this paragraph is as follows: "Wherefore, he asks the Board to enter an order herein requiring said defendants to resume to make said weekly payments for total disability for work and to continue the same until the balance of $ 5,000.00, namely $ 1,761.00 is paid and that said defendants...