74 Ind. App. 267 | Ind. Ct. App. | 1920
Claim by appellee against the appellants for compensation. The facts as found by the Industrial Board on final hearing are as follows:
On May 18, 1918, appellants as partners were engaged in the grocery business. On and prior to said date appellee was employed by them as a clerk at a weekly wage not exceeding ten dollars. On said date, while appellee was removing a top from an egg crate, a nail flew out and struck her in the right eye. This resulted in the permanent loss of vision of the injured eye. Appellants had actual knowledge of such injury within three days after the accident. Appellee was absent from her work for two weeks immediately after the accident' on account of said injury, during which time she was unable to perform her duties as such employe. Appellants at that time had personal knowledge that appellee was not able to perform her duties. At the end of two weeks appellee returned to her duties and informed appellants that as a result of her injury
Appellee was awarded 100 weeks’ compensation at the rate of $5.50 per week, beginning May 18, 1918, appellants being given credit for the $12. An award of $22.96 was also made on account of medical expense .incurred.
The errors assigned áre that the award was not sustained by sufficient evidence, and was contrary to law.
The evidence shows that appellee, while working in appellants’ store, was injured during their absence. The accident occurred about 10 a.m. on Saturday; appellee worked until noon and went home. Appellants learned of the accident the following evening. On the following Monday, appellee telephoned to the store and informed them that she would not be at the store that day. She went to see a physician two days after the accident, at which time the vision of the injured eye was only twenty per cent, normal. The following Wednesday, she went to another physician and in the evening, after returning from this physician, she had a conversation with one of the appellants. Appellee testified that she was blind in the injured eye at that time, and that she at that time told one of the appellants of the condition of her eye, and that she would not be able to work for a while. A physician who ex
The award of the Industrial Board was based on total blindness of the injured eye. Appellants contend that the award is contrary to law, and not supported by sufficient evidence, for the reason that no notice was given before the filing of this action that appellee had become blind as a result of the accident. Appellants do not deny knowledge of the accident and that they had knowledge of the nature and cause of the injury the fourth day after the accident, but contend that it is incumbent upon a claimant to notify the employer of an injury which has occurred in the course of employment, and in' such notice to state “the exact nature of the injury so that the employer may have an opportunity to take proper steps in regard to the injured employe.” They further contend that appellee was not wholly blind at the time when they learned of the injury ; that they could not know such a condition would develop unless notified of that fact by appellee, and that they were entitled to a further notice after appellee became totally blind in the injured eye.
Section 22 .of the Workmen’s Compensation Act, Acts 1915 p. 392, §80201 et seq. Bums’ Supp. 1918, provides that: “Every injured employe or his representative shall immediately upon the occurrence of an injury or as soon thereafter as practicable give or cause to be given to the employer written notice of the injury and the employe shall not be entitled to physician’s fees nor to any compensation which may have accrued, under the terms of this act, prior to the giving of such notice: unless it can be shown that the employer, his agent or representative had knowledge of the injury or death, or that the party required to give such notice had been
Section 23, after enumerating what the notice shall state, provides that: “No defect or inaccuracy in the notice shall be a bar to compensation unless the employer shall prove that his interest was prejudiced thereby, and then only to the extent of such prejudice.” The burden of proving prejudice is on the employer.
It is clear that appellants had timely knowledge that appellee was injured. It has been held many times that knowledge on the part of the employer is a substitute for written notice required by §22 of Workmen’s Com
Award affirmed, and under the statute is increased five per cent.