174 Ind. App. 275 | Ind. Ct. App. | 1977
On October 21,1974, appellant Breeden filed a Form No. 14 application for the modification of an award made December 3, 1973, awarding him 22.5 weeks compensation for a ten percent increase in the permanent partial impairment of his right leg above the knee, the result of an injury sustained November 13, 1971, for which he had previously been paid 59.75 weeks compensation (26 weeks for temporary total disability and 33.75 weeks for fifteen percent permanent partial impairment of the right leg above the knee). He alleged in his application for review that both his disability and his permanent partial impairment had increased since the date of the award. The Industrial Board dismissed his application in response to Swifty’s (his employer’s) motion which asserted that the board was without jurisdiction because the application was filed more than one year after the last date for which Breeden was paid compensation. Holding the dismissal proper for the reason stated, we affirm.
The governing statute is Ind. Ann. Stat. § 22-3-3-27 (Burns Code Ed., 1974), also referred to as section 45 of the Workmen’s Compensation Act.
Unfortunately the award of December 3, 1973, which Breeden seeks to modify does not expressly state when the 22.5 weeks compensation it awards begins or ends.
The basis of Swifty’s argument that the lump sum payment order implies a beginning date of July 7, 1972, is that otherwise there would be no “deferred” payments which could lawfully be ordered paid in a lump sum without direction for reduction to present value, as is required by Section 43 of the act, Ind. Ann. Stat. § 22-3-3-25 (Burns Code Ed., 1974), when payments for future weeks are ordered paid in a lump sum.
Strangely enough this same lump sum payment provision is also the basis of Breeden’s contrary argument that “the unique language as contained in the December 3, 1973 Award . . . constitutes a declaration by the Industrial Board that that is the date from which the time limitation of one year as contained in Section 45 begins to run.” He makes no explanation of how he reaches that conclusion and we find none in the authority (Wilson v. Betz Corporation [1959], 130 Ind. App. 83, 159 N.E.2d 402; Miles v. Indiana Service Corporation [1933], 97 Ind. App. 400, 185 N.E. 460) he cites to support it.
It has been suggested that because § 31 of the Workmen’s Compensation Act (IC 1971, § 22-3-3-10) no longer contains the language “in lieu of all other compensation on account of said injuries”, Smith v. Brown, supra, and Frazier v. Knox Consolidated Coal Corp., supra, are no longer authority for the proposition that a recurrence of temporary total disability is no reason for the modification of an award for permanent partial impairment. However, a careful reading of § 31 as amended discloses that, in this respect, the only change that has been made is that of permitting the injured employee to receive his scheduled number of weeks compensation for his permanent partial impairment “in addition to temporary total disability benefits not exceeding twenty-six weeks.” In the case now before us Breeden was initially paid compensation for temporary total disability for the twenty-seven weeks immediately following his injury. In his first award for permanent partial impairment his employer, Swifty,
Breeden also complains that the board failed to find the facts on which it based its conclusion that his application was not filed within one year after the last date for which compensation was paid. We agree that it would have been helpful for the board to have set forth the last date for which compensation was paid, rather than merely its conclusion “that plaintiff failed to file his Form 14 application within one year after the last date on which plaintiff had been paid compensation for his subject injury.”
The order of the full board is Affirmed.
NOTE — Reported at 367 N.E.2d 1206.
. 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
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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.
. In full, the December 3, 1973, award reads:
“IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Industrial Board of Indiana that there shall be awarded plaintiff as against the defendant compensation at the rate of $60 per week for a specific period of 22.5 weeks for permanent partial impairment of an additional ten percent of the right leg above the knee joint, resulting from the accidental injury of November 13, 1971.
“It is further ordered that all deferred payments of compensation shall be brought up to date and paid in cash in a lump sum.
“It is further ordered that defendant shall pay the statutory medical expenses.
“It is further ordered that defendant shall pay to plaintiffs attorney his fee herein, based as follows: a minimum of $25 and in addition thereto 20% upon the first $1,000 recovered herein, 15% upon the second and third $1,000, and 10% upon all sums recovered in excess thereof, that defendant shall have credit on this award for all sums so paid to plaintiffs attorney.”
. Swifty’s brief in this court asserts the 22.5 week period “had already begun and already concluded before the date of the award [December 3,1973].” The “Motion to Dismiss” which Swifty filed with the board asserts that for the total 25% permanent partial impairment “defendant has paid plaintiff compensation for the period beginning December 31, 1971 to January 28, 1973 inclusive representing fifty-six and one-fourth (56 'A) weeks.” Breeden’s brief in this court concedes “that if the time computations set forth in the Appellee’s Motion to Dismiss are legally [our emphasis] correct. . . then the Appellant’s Form No. 14 simply was not filed timely pursuant to the one year limitation as contained in Section 45.” While Swifty’s time computations do not coincide exactly with ours (as set forth in the text of this opinion) the variation is so slight that it makes no difference which is in error. Given the beginning date of November 13,1971, set out in the approved agreement for the first 15% of impairment, and interpreting the 10% award as consecutive to the 15% award, there is no way to find that the Form 14 filed on October 21,1974, was filed within one year of the last date for which compensation was paid.
. Also, it would have been more accurate had the board said “the last date for which [instead of “on which”] plaintiff had been paid compensation”, thereby following the wording of § 45, IC § 22-3-3-27.
. The meaning of the lump sum payment order in the award of December 3, 1973, is resolved by the board’s finding that the Form 14 was not filed within one year after the last date on which plaintiff was paid compensation.