Smith v. Brown, 12007.

• Decision Date: 08 October 1924
• Docket Number: No. 12007.,12007.
• Citation: 144 N.E. 849,81 Ind.App. 667
• Parties: SMITH v. BROWN.
• Court: Indiana Appellate Court

81 Ind.App. 667

144 N.E. 849

SMITH

v.BROWN.

No. 12007.

Appellate Court of Indiana, Division No. 1.

Oct. 8, 1924.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by H. M. Smith against James Brown. From an award of increased compensation, defendant appeals. Reversed.

Turner, Adams, Merrell & Locke, and Paul E. Beam, all of Indianapolis, for appellant.

BATMAN, J.

Appellee filed a petition under section 45 of the Workmen's Compensation Act (Laws 1915, c. 106, as amended by Acts 1919, c. 57), to have an award of compensation in his favor against appellant modified by increasing the same, on account of a change in conditions. On a hearing before the full Industrial Board, on review, it was found, in substance, among other things, that on October 27, 1921, appellee was in the employment of appellant, and on said date received a personal injury by accident, arising out of and in the course of his employment; that on December 7, 1921, the parties entered into a compensation agreement by which appellant agreed, among other things, to pay appellee compensation, at the rate of $8.25 per week, for the period of his temporary disability, beginning on November 4, 1921, which agreement was duly approved by the Industrial Board; that on January 23, 1923, the parties entered into supplemental agreement by which it was agreed that the injury to appellee had resulted in a 66 2/3 per cent. permanent impairment of his right leg below the knee, and that by reason of that fact appellant would pay appellee compensation at the rate of $8.25 per week for 100 weeks, beginning on November 4, 1921, which agreement was approved by the Industrial Board; that thereafter, on January 23, 1923, the parties entered into a further agreement by which appellee was to receive from appellant 38 weeks' compensation in a lump sum, compensation for the remaining portion of said 100 weeks having theretofore been paid, which agreement was approved by the Industrial Board; that pursuant to said agreement appellant paid appellee the full amount of said lump sum and took his final receipt therefor. The finding of the Industrial Board then concludes as follows:

“That since the filing of said lump sum agreement and final receipt there has been a change in the plaintiff's condition; that on the date of the original hearing, his disability, resulting from the injury, had recurred and increased, and he was at said time wholly disabled for work as a result of his injury; but the board is unable to determine whether or not the degree of permanent partial impairment has been thereby increased.”

Based on these facts, appellee was awarded compensation at the rate of $8.25 per week, beginning October 17, 1923, and to continue during the period of his total disability, resulting from such recurrence; such compensation thereby and theretofore awarded, however, not to exceed 500 weeks as to time, or $5,000 as to amount. From this award appellant has appealed, alleging that it is contrary to law.

[1] A consideration of the facts found discloses that they are not sufficient to sustain the award for the following reasons: The approved agreement, made by the parties on January 23, 1923, has the force and effect of an award. In re Stone (1917) 66 Ind. App. 38, 117 N. E. 669;Pedlow v. Swartz, etc., Co. (1918) 68 Ind. App. 400, 120 N. E. 603;Home, etc., Co. v. Cahill (1919) 71 Ind. App. 245, 123 N. E. 415. Appellee recognizes that it was properly made, and is still in force, by seeking to have the same modified, pursuant to section 45 of the Workmen's Compensation Act. People's, etc., Co. v. Warner, etc., Co. (1923, Ind. App.) 141 N. E. 231.

[2] In that agreement it was stipulated that the injury to appellee had resulted in a 66 2/3 per cent. permanent impairment of his right leg below the knee, and that he should receive compensation from appellant for 100 weeks by reason thereof. Thus appellee's condition at that time was specifically determined, and the period for the payment of compensation was definitely fixed. As neither of the parties took any step to have the agreement set aside or superseded, it became a full and final determination of appellee's condition at the time it was made, and of appellant's liability for the payment of compensation, subject only to the right of either party to have a modification of the period for the payment of compensation, on account of a change in appellee's condition, if any should occur subsequent thereto, as provided in said section 45. Pedlow v. Swartz, etc., Co. supra; Indianapolis, etc., Co. v. Morgan (1921, Ind. App.) 129. N. E. 644.

[3][4] It will be observed that appellee's condition was specifically determined to be “a 66 2/3 per cent. permanent impairment of his right leg below the knee,” at the time the said agreement for the payment of compensation for 100 weeks was made, and, further, that the Industrial Board has expressly found that it is unable to determine whether or not the degree of appellee's permanent partial impairment has been...