Wilks v. First Nat. Bank of Mishawaka
| Decision Date | 08 May 1975 |
| Docket Number | No. 2--174A6,2--174A6 |
| Citation | 326 N.E.2d 827,164 Ind.App. 156 |
| Parties | Ludene WILKS, Appellant (Plaintiff below), v. FIRST NATIONAL BANK OF MISHAWAKA, Appellee (Defendant below). |
| Court | Indiana Appellate Court |
James H. Pankow, South Bend, for appellee.
Plaintiff-Appellant, Ludene Wilks (Wilks), seeks judicial review of a decision by the Full Industrial Board (the Board) affirming the Hearing Member's dismissal of Wilks' Application (Form 9) as not timely filed.
We affirm.
On April 8, 1970, while employed as a bank teller with the First National Bank of Mishawaka (the Bank), Wilks allegedly Her claim for compensation thus expired on April 8, 1972 . . . a Saturday.
injured her back while lifting heavy money bags.
On Monday, April 10, 1972, Wilks sent her Form No. 9 Application by registered mail to the Industrial Board, return receipt requested.
On Wednesday, April 12, 1972, Wilks' Application was received by the Board and stamped 'Filed' on that date.
The Bank filed an affirmative answer alleging Wilks' Form No. 9 was not timely filed and moved for the dismissal of her application for workmen's compensation benefits. The Hearing Member found 'the plaintiff's Form No. 9 application was not filed within the two-year statutory period provided by the Indiana Workmen's Compensation Act,' and dismissed Wilks' application.
After oral argument, the Board entered the following Findings of Fact:
'That this claim was initiated as Application No. 72356 by the filing of a Form 9 application for compensation on April 12, 1972, by the plaintiff; said application having been deposited in the mail on April 10, 1972, at Mishawaka, Indiana post office box and by certified mail.
'It is further found that said Form 9 application alleged an accidental injury for the plaintiff on April 8, 1970 . . ..
'Therefore, the defendant filed an affirmative answer alleging seeking dismissal of the application for compensation for the reason same was not filed until more than two years after the alleged accidental injury occurred; the plaintiff's Form 9 application . . . was neither mailed to nor received by the Industrial Board within two years of the date of the alleged accidental injury.
'Said Full Industrial Board of Indiana now finds for the defendant and against plaintiff on defendant's Affirmative Answer . . . and further finds that plaintiff's application Form No. 9 . . . should be dismissed.' (Emphasis supplied.)
Wilks appealed that dismissal.
A single issue is presented:
Did Wilks timely file her Application Form No. 9 with the Industrial Board pursuant to the Workmen's Compensation Act?
Wilks contends that the Workmen's Compensation Act is to be liberally construed, that the Indiana Rules of Trial Procedure apply, making her application timely because the two-year statutory limit expired on a Saturday and the mailing of the Application on the following Monday constituted timely filing.
The Bank argues that the Workmen's Compensation Act specifically sets forth the statute of limitations which controls the manner in which time is to be computed in workmen's compensation actions and the Indiana Rules of Trial Procedure are not applicable.
CONCLUSION--It is our opinion that Wilks' Form No. 9 Application was not timely.
IC 1971, 22--3--3--3, Ind.Ann.Stat. § 40--1224 (Burns Code Ed.) sets forth the statute of limitations for the filing of claims for workmen's compensation benefits:
'Limitation for filing claim.--The right to compensation under this act shall be forever barred unless within two (2) years after the occurrence of the accident . . . a claim for compensation thereunder shall be filed with the industrial board . . ..' (Emphasis supplied.)
Note: No reference is made in this statute to the method of computation of time.
According to Wright v. Weil Brothers & Co. (1921), 75 Ind.App. 497, 130 N.E.2d 878, 'filed' means the application must 'reach the office of the Industrial Board' within the statutory time limit:
(Emphasis supplied.) 75 Ind.App. at 498, 130 N.E. at 878--79.
Even more persuasive is the language found in Weatherhead Co. v. State Bd. of Tax Comm'rs (1972), Ind.App., 281 N.E.2d 547, in which the Court examined the definition of the term 'filing' as used in IC 1971, 6--1--31--4, Ind.Ann.Stat. § 64--104 (Burns Code Ed.):
'This portion of the statute plainly requires that a notice of appeal be filed with the Board within thirty days after the Board gives notice of its determination.'
'If, then, notice is required to be filed within thirty days, the next question is whether Weatherhead's notice of appeal was 'filed' when it was deposited in the mail on the thirtieth day.
'In Lawless et al. v. Johnson et al. (1953), 232 Ind. 64, at 67, 111 N.E.2d 656, at 658, it was stated that,
'Similarly, there is a great unanimity of authority from other jurisdictions in agreement with the above definition of the word 'filed'. In Wirtz v. Local Union 169, International Hod Carriers, etc. (D.Nev.1965), 246 F.Supp. 741 at 750, the court stated:
'See also:
State v. Empire Building Company (1971), 46 Ala.App. 565, 246 So.2d 454;
Blades v. United States (9 Cir. 1969), 407 F.2d 1397;
Mears v. Mears (1965), 206 Va. 444, 143 S.E.2d 889.
16A Words and Phrases 'File,' at 102--141;
36A C.J.S. File at p. 397.'
(Emphasis supplied.)
See also,
Walner v. Capron (1946), 224 Ind. 267, 66 N.E.2d 64;
Goodman v. State (1929), 201 Ind. 189, 165 N.E. 775;
Grabowski v. Benzsa (1923), 80 Ind.App. 214, 140 N.E. 76;
Thompson v. State (1921), 190 Ind. 363, 130 N.E. 412;
Hammond, etc. Electric Co. v. Antonia (1908), 41 Ind.App. 335, 83 N.E. 766; Engleman v. State (1850), 2 Ind. 91;
Burroughs v. Lyles (1944), 142 Tex. 704, 181 S.W.2d 570;
Laffey v. Philadelphia & Reading Coal & Iron Co. (1937), 125 Pa.Supr. 9, 189 A. 509;
United States v. Lombardo, 241 U.S. 73, 36 L.Ed. 508, 60 L.Ed. 897.
So Wilks' Application was not 'filed' on Saturday, April 8, 1972, the expiration date of the two-year statute of limitations, nor was it 'filed' on Monday, April 10, 1972, because it was not received at the Board's office until Wednesday, April 12, 1972.
Wilks seeks to avoid this unfortunate circumstance by resorting to the Rules of Trial Procedure . . . without designating any particular rule.
There is some, but not enough, solace for Wilks in the application of Ind. Rules of Procedure, Trial Rule 6(A), which provides in pertinent part:
'(3) a legal holiday as defined by state statute, or
'(4) a day the office in which the act is to be done is closed during regular business hours.
'In any event, the period runs until the end of the next day that is not a Saturday, a Sunday, a legal holiday, or a day on which the office is closed. . . .'
In Ball Stores, Inc. v. State Bd. of Tax Comm'rs (1974), Ind., 316 N.E.2d 674, the Supreme Court did go so far as to apply TR. 6(A) in an analogous situation, because the statute involved, as here, was silent as to the method of computing time. Justice Hunter said:
But utilization of TR. 6(A) only operates to extend to Monday, April 10, 1972, for filing Wilks' Application. And that it must be 'filed' was recognized by the opinion in ...
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