Sewell v. Terre Haute Brewing Company

• Decision Date: 31 March 1936
• Docket Number: 15,650
• Parties: SEWELL v. TERRE HAUTE BREWING COMPANY
• Court: Indiana Appellate Court

200 N.E. 734

102 Ind.App. 373

SEWELL v. TERRE HAUTE BREWING COMPANY

No. 15,650

Court of Appeals of Indiana

March 31, 1936

Rehearing denied July 2, 1936.

[Rehearing denied July 2, 1936.]

1. MASTER AND SERVANT---Workmen's Compensation---Limitation of Actions---Permanent Partial Impairment.---If a permanent partial impairment for which claim is made is the direct result of the accident, the claim may be filed within two years (as an original action, under 24 of the Act), but if the impairment is the result of a temporary disability, it must be filed within one year after final payment for the temporary disability (as a change of conditions, under 45 of the Act). p. 376.

2. MASTER AND SERVANT---Workmen's Compensation---Limitation of Actions---Permanent Partial Impairment.---Where a permanent impairment has existed from the date of the injury and payment therefor was not included in the original award it being for temporary disability only, such impairment may be the basis of an independent application for compensation and is governed by the two-year limitation (24, Workmen's Compensation Law), whether the original compensation was paid by agreement or established by an award. p. 376.

3. MASTER AND SERVANT---Workmen's Compensation---Compensable Injuries---Permanent Impairment---As Basis for Independent Claim.---On original application for compensation for a permanent partial impairment, after payment of compensation by agreement for temporary disability, evidence held to establish existence of the impairment from the date of the injury entitling the employee to recovery on application filed within two years after an accident. p. 376.

From Industrial Board of Indiana.

Proceedings under the Workmen's Compensation Law by Frank Sewell employee, against Terre Haute Brewing Company, employer. From an award denying compensation, the employee appealed. Reversed. By the court in banc.

Rehearing denied July 2, 1936.

From Industrial Board of Indiana.

Proceedings under the Workmen's Compensation Law by Frank Sewell, employee, against Terre Haute Brewing Company, employer. From an award denying compensation, the employee appealed.

Reversed.

Frank Hamilton and William E. Hamilton, for appellant.

Slaymaker, Merrell & Locke, L. A. Shaner, H. T. Batman and James V. Donadio, for appellee.

OPINION

WIECKING, J.

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 assignments 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 permanent 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.

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...