Wilson v. Betz Corp.

• Citation: 130 Ind.App. 83,159 N.E.2d 402
• Decision Date: 26 June 1959
• Docket Number: No. 19274,No. 1,19274,1
• Parties: Doris WILSON, Appellant, v. BETZ CORPORATION and Betz Div-Bohn Aluminum & Brass Corp., Appellees
• Court: Court of Appeals of Indiana

Page 402

159 N.E.2d 402

130 Ind.App. 83

Doris WILSON, Appellant, v. BETZ CORPORATION and Betz Div-Bohn Aluminum & Brass Corp., Appellees.

No. 19274.

Appellate Court of Indiana, Division No. 1.

June 26, 1959.

Rehearing Denied Sept. 23, 1959.

Sevald & Sevald, Hammond, for appellant.

Spangler, Jennings, Spangler & Dougherty, Gary, for appellees.

AX, Judge.

On June 15, 1955, appellees herein filed with the Industrial Board of Indiana their 'Employer's First Report of Injury', and on the same date appellant and appellees also filed their agreement as to compensation and the same was approved by said Board. All payments were made under said agreement as to temporary total disability and said total disability terminated on June 27, 1955.

On June 27, 1956, appellant filed with the Industrial Board her Form No. 14 requesting a review upon the basis of a change of conditions upon the following grounds:

(1) That said injury has resulted in a permanent partial impairment;

(2) That said permanent partial impairment has increased since the date of said award;

(3) Inability to engage in the same or similar employment.

Appellant subsequently obtained an award from the Full Industrial Board of Indiana on May 8, 1957, against the appellees, of compensation at the rate of $32.40 per week for a specific period of sixty weeks, beginning May 24, 1955, for a 12 per cent permanent partial impairment to her as a whole on account of an accidental injury arising out of and in the course of her employment with the appellees. The Board in its finding stated that 'the appellant's condition has reached a permanent quiescent state'. Said award also contained the statutory allowance for attorney fees.

Thereafter, on June 3, 1957, appellant prosecuted an appeal to this Court, which appeal was duly and timely perfected as Cause No. 19047. In this appeal among points proposed, appellant claimed that she was entitled to an award based on a 30 per cent impairment of her person as a whole, instead of the 12 per cent found by the Full Industrial Board; and further that the Full Board had failed and refused to decide the tendered issue of the inability of appellant to return to work and to engage in the same or similar occupation. On December 18, 1957, our Court rendered its decision upon said appeal, affirming the award of the Full Board which in substance was a finding against appellant. See Wilson v. Betz Corporation and Betz Div-Bohn Aluminum & Brass Corp., 1957, Ind.App., 146 N.E.2d 570. Said appeal was still pending in our Court under Cause No. 19047 until January 24, 1958, when this Court denied appellant's petition for rehearing.

The record further discloses that subsequently on February 20, 1958, the appellees paid appellant the final and full amount due to her from the award of the Full Board which paid her compensation to and including July 19, 1956, being the last day for which compensation was to be paid under terms of said award.

Thereafter, on March 4, 1958, appellant filed with the Industrial Board her second and supplemental application for review of award on account of change of condition citing two grounds for review:

(1) That said permanent partial impairment has increased since the date of said award.

(2) That permanent partial impairment has resulted in inability to engage in the same or similar employment.

To the application the appellee filed a motion to strike certain parts of appellant's application and also a motion to dismiss the application on the grounds that the one year limitation as provided in § 40-1410, Burns' Ind.St. has run, thereby constituting a bar to the filing of appellant's claim. This section so relied upon by appellee as a bar to the appellant's claim is as follows:

'Continuing power to change or modify award.--The power and jurisdiction of the industrial board over each case shall be continuing, and, from time to time, it may, upon its own motion or upon the application of either party, on account of a change in conditions, make such modification or change in the award, ending, lessening, continuing or extending the payments previously awarded, either by agreement or upon hearing, as it may deem just, subject to the maximum and minimum provided for in this act (§§ 40-1201-40-1414, 40-1503-40-1704).

'Upon making any such change, the board shall immediately send to each of the parties a copy of the modified award. No such modification shall affect the previous award as to any money paid thereunder.

'The board shall not make any such modification upon its own motion, nor shall any application therefor be filed by either party after the expiration of two (2) years from the last day for which compensation was paid under the original award made either by agreement or upon hearing, except that applications for increased permanent partial impairment are barred unless filed within one (1) year from the last day for which compensation was paid. The board may at any time correct any clerical error in any finding or award.' (Our Emphasis) Acts 1929, ch. 172, § 45, p. 536, 552, 1947, ch. 162, § 12, p. 523.

Thereafter, appellant filed her reply, alleging in substance:

(1) That it is not the office or function of either motion to strike or to dismiss, to present such issue, for same constitute pleas in bar, composed of law and facts and are personal defenses, which must be specially pleaded, as such; and

(2) That the previous pending appeal to the Appellate Court tolled or suspended the one year statute of limitations during the period when the Appellate Court had exclusive jurisdiction over the subject matter of this claim, and that therefore the one year limitation had not expired at the time that the claim of appellant was duly filed.

On November 21, 1958, the Full Industrial Board, after hearing argument of counsel for both the claimant and employer, dismissed appellant's said second application for review for the reason of want of jurisdiction because appellant's application was filed more than 1 year after the last day for which compensation was paid in the original award of the said cause.

Appellant has assigned as error that the award of the Full Industrial Board is contrary to law and points out in her argument that two questions are presented to this Court on this appeal:

(1) Did the Industrial Board have the legal right to dismiss the second application upon a motion to dismiss filed by appellees on the grounds that said Board had no jurisdiction because the application was filed more than one year after the date for which compensation was last paid under the original award? and

(2) Did the pending appeal to the Appellate Court transfer all jurisdiction over the application from the Industrial Board to the Appellate Court and thereby toll the so called statute of limitations during the period of the appeal?

In answer to the first argument of appellant set out above, we are of the opinion that the Industrial Board could properly dismiss this application upon a motion to dismiss, provided that said Board could ascertain on the face of the application that it was not properly filed with the time limitation prescribed by the controlling statute which created both the right and remedy.

'Jurisdiction is essential to give validity to the determinations of administrative authorities. Without jurisdiction, their acts are void and open to collateral attack. Administrative authorities are tribunals of limited jurisdiction. Their jurisdiction is dependent entirely upon the provisions of the statutes reposing power in them; they cannot confer it upon themselves, although they may determine whether they have it.' 42 Am.Jur. 440, Public Administrative Law, § 109.

The Workmen's Compensation Act provides that the Board shall prescribe its own procedures. See Burns' § 40-2108. Our Court, in the case of Carl Hagenbeck & Great Wallace Shows Co. v. Leppert, 1917, 66 Ind.App. 261, 117 N.E. 531, 534, stated the following principle of law which we believe answers the appellant's contentions, as follows:

'We deem it advisable to state that we have not considered the assignment of error that 'the commission (board) erred in overruling appellant's amended plea in abatement', for the following reason: The rules of procedure prescribed in the Civil Code are not available in matters before the Industrial Board. The Workmen's Compensation Act, supra, provides that the board shall prescribe its own procedure. We cannot take judicial knowledge of the rules of the board.'

The Industrial Board, thus, not being a court of law, is not strictly bound by the Rules of Civil Procedure prevailing in Indiana. Section 40-1510, Burns' Ind.Stat. gives the Industrial Board jurisdiction to hear and determine disputes between parties in a summary manner.

Judge Kime, in the case of Homan v. Belleville Lumber & Supply Co., 1937, 104 Ind.App. 96, 8 N.E.2d 127, 130 stated the following which we believe has application to this case at bar----

'Throughout the entire act it is obvious that the people through their law making agency intended that the Industrial Board, which they created, should have full, complete and absolute administration of such law. That resort was not to be had to the courts until the administrative process had been completely exhausted. (Our Emphasis)

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'It seems plain from even a casual reading of the act that it was intended that the administrative body created was to replace the function that had, until that time, been exercised by the courts.'

Also in this case Judge Kime on page 109 of 104 Ind.App. on page 132, of 8 N.E.2d stated the following rule----

'It is our belief that we should say and by this opinion do say that whenever in the processes of the administration of this act there is called to the attention of the board matters which show that the board was without jurisdiction that it should pass upon the question and if those involved are not satisfied then that action can be...