Sewell v. Terre Haute Brewing Co.

Decision Date31 March 1936
Docket NumberNo. 15650.,15650.
Citation102 Ind.App. 373,200 N.E. 734
PartiesSEWELL v. TERRE HAUTE BREWING CO.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Frank Sewell, claimant, opposed by the Terre Haute Brewing Company, employer. From an award of the Industrial Board denying claimant's application for compensation, claimant appeals.

Reversed, with instructions.Wm. E. Hamilton and Frank Hamilton, both of Terre Haute, for appellant.

L. A. Shaner, Slaymaker, Merrell & Locke, Clarence F. Merrell, and James V. Donadio, all of Indianapolis, and H. T. Batman, for appellee.

WIECKING, Judge.

This is an appeal from an award of the Industrial Board of the state of Indiana seeking the review of an order and award of said board denying appellant's application for compensation. Appellant assigns as error: (1) That the award of the Full Industrial Board is contrary to law; and (3) that the award and judgment of the Full Industrial Board is not sustained by sufficient evidence.” The first of such assignment is the only proper one under the law, and is sufficient to present all questions.

The evidence discloses that on February 1, 1934, appellant was in the employ of the appellee, and received a personal injury by accident arising out of, and in the course of, his employment, consisting of an injury to the left foot. On February 9, 1934, an agreement was entered into between the parties providing for the payment to appellant of compensation beginning February 9, 1934, and to continue during temporary disability, which agreement was duly approved by the Industrial Board on April 24, 1934. Compensation was paid to appellant under and pursuant to this agreement until May 4, 1934, on which date he returned to work.

On June 1, 1935, appellant filed with the Industrial Board his application for additional compensation on form 14, alleging that said injury had resulted in a permanent partial impairment. Such application was thereafter dismissed by the appellant on July 11, 1935. On July 12, 1935, appellant commenced this proceeding by filing with the Industrial Board his form 9 application for adjustment of compensation on account of permant partial impairment to his left foot below the knee. On July 23, 1935, appellee filed its special answer on form 44 of the Industrial Board, alleging that appellant's application for compensation was not filed within one year from the termination of the compensation period fixed in the original award or agreement, as provided by section 45 of the Workmen's Compensation Law (Acts 1929, c. 172).

A hearing was held before a single member of the Industrial Board, and on September 24, 1935, said hearing member made an award in favor of appellant, finding that as a result of said injury appellant had suffered a 20 per cent. permanent partial impairment to the left foot below the knee and was entitled to compensation for 30 weeks at $9.24 per week, the appellee to receive credit for compensation theretofore paid, the remainder to be paid in cash and in a lump sum.

Appellee appealed from this award to the full Industrial Board, and, after a hearing, said full Industrial Board on November 14, 1935, made and entered an order that appellant take nothing by his application, filed July 12, 1935, and that his right to prosecute a claim for permanent partial impairment, if he had such a right, expired one year after the date of final payment for total disability, under the order approved April 24, 1934. The pertinent part of such finding and order of the full Industrial Board is as follows:

“And the Full Industrial Board now finds, by a majority of its members, that plaintiff shall take nothing by his application filed herein on July 12, 1935, that his right to prosecute a claim for compensation for permanent partial impairment, if any such right he had, expired one year after the date of final payment for disability,under the agreement approved by the Industrial Board on April 24, 1934.

“Order.

“It is therefore considered and ordered by the Full Industrial Board of Indiana, by a majority of its members, that plaintiff shall take nothing by his complaint herein and that he shall pay the costs of this proceeding.”

The question presented here is whether or not appellant's claim for compensation for permanent partial impairment is controlled by section 24 or section 45 of ...

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