*1 Marguerite Indiana, Gibson v. Industrial Board Robert McNevin, Noes, Cronin,
W. Richard J. John J. Richard Raymond Kickbust, McDonagh, DeTar, F. and G. Richard Terrence constituting Coriden, quorum of and as Members Corporation Indiana; Industrial Board Philco-Ford 30,May 2-576A207.Filed [No. 1978.] *2 andSimkin, Richmond, Williams, Jr., Williams, Clyde Delaney appellant. E. Dowling, Rocap, Rocap, Young,
James Reese and Indianapolis, for appellee. an ac- Gibson sustained Marguerite Plaintiff-appellee
HOFFMAN, with employment in the course of her injury arising out and cidental occurred on The defendant-appellee Corporation. Philco-Ford 3,1969, assembly caught line material on an rough when certain October bin, it to causing off the table and the bin hair-pin knocking under a the left suffered contusions of left arm. appellant’s Appellant strike disability begin- in total temporary which resulted forearm and hand 4, 1969. ning November 4,1969, as to “Agreement Temporary filed an parties December
On each Disability” whereby compensation was to receive appellant Total 4,1969, in until terminated accordance week November beginning day, Law. On the same Compensation of the Workmen’s provisions Indiana “Industrial Board of Memorandum Philco-Ford, paid had Payments” disclosing employer, was filed that 1,1969, and that ending December compensation appellant two weeks on had returned to work appellant had ceased because payments 1, 1969. December 18,1971, as to Permanent “Agreement filed an parties
On June com- to receive six weeks in which was Impairment” Partial the elbow. of the arm below rating on an pensation 3% 4,1969.1 monthly November beginning payable Such impair- agreement Although the stated the 1. 4,1971, 1969, parties rather themselves treated should commence November than also filed a statement with the Board she ac- Appellant indicating that cepted physician’s statement as to the extent of her permanent par- asking agreement awarding tial that the six weeks com- be pensation approved. agreement the Board on approved 25, 1971, 1971. June On June an “Industrial Board of Indiana Payments” Memorandum of Compensation stating was filed that had employer paid eight weeks compensation beginning November 1,1969, to December inclusive and the payment that of compensa- tion had ceased because the payments for permanent partial impair- ment, award, as per had been completed. 26,1972, May
On filed an for the Review of “Application alia, Conditions,” inter Award on Account of a Change alleging, award, her disability has recurred since the date of the disability award, has increased since the date of the the injury resulted a per manent partial impairment and the permanent partial impairment has increased since the date of the award. filed a motion to dismiss.
Subsequently, employer After a hear- Board, thereon Member of Hearing the Industrial it was deter- *3 that the jurisdiction mined Board was without to consider the petition 1971,22-3-3-27 for modification because provisions of the limitations of IC (Burns Ed.). Code Review the Full Board likewise determined that it was without jurisdiction modify to consider the to petition presented
The issues for our review are whether the Industrial Board determined that was barred from a appellant petition properly for modification and whether the statute denies Due Process since it permits Law the limitations without affor- period expire ding opportunity her an for modification. 1971, 22-3-3-27, supra,
IC also referred to as Section 45 of the Act, Workmen’s Compensation provides general two-year a statute of commencing employer’s that period as in 1969. The motion to dismiss stated the time December, following payments “for the the accident until such were time Deny January 1970.” Likewise in “Plaintiff’s Motion to Defendant’s 1969 or at the latest Memorandum,” appellant period stated that the award was “for the Motion to Dismiss and October, beginning It not until that the 1969.” was filed brief inconsisten- cy years in the is noted. provisions relating permanent Appellant’s appeal 2. limited to the issues on are partial impairment. modifications for of awards in- limitations for “except applications impairment are creased barred unless filed without [1] year from the last day which compensation paid.”3 It has been stated that modification in provisions workmen’s com- pensation legislative recognition statutes are a of the fact that although the Industrial Board’s diagnosis employee’s condition at the time accurate, may entirely of the hearing may be that condition later change worse, Larson, for the Workmen’s improve, or clear up altogether. (1976). 81.10, Thus, 1971, 22-3-3-27, Law, Compensation at 15-470 IC § supra, permits a modification due to changes circumstances which continue, terminate, might decrease or extend the compensation payments.
Time limitations on modify power awards is a recognition the administrative practical and difficulties jurisdic on an unlimited Larson, modify
tion to awards to meet current conditions. 3 Workmen’s Law 81.10 supra. Indiana § Legislature set certain time limits within which an award could 1971, 22-3-3-27, be modified. IC supra, permits party a a modification of award due to an increase in permanent partial impair within one from the last date for which An paid. important feature of this limitation is the period point in time from which the period commences to run. In this it respect, should be noted that the did not choose a specified of time period provides
3. The statute as follows: power jurisdiction “The of the industrial board over each case shall be continu- time, may, upon and from time to application it its own motion or conditions, party, change either on account of a change make such modification or award, ending, lessening, in the continuing extending previously payments or awarded, by agreement upon hearing, just, subject as it deem to the — provided maximum and minimum for in this act [22-3-2-1 22-3-6-3]. “Upon making any change, immediately the board shall send to each of parties copy previous of the modified award. No such modification shall affect the any money paid *4 award as to thereunder. error application from day nent “The for which the last partial board shall not make by agreement any finding therefor be filed day for which or award.” upon hearing, are barred unless filed within one any was compensation such modification paid. either The board except party was after the paid may applications under the at its own any expiration time correct [1] motion, for increased year of two [2] from the last nor shall award made any clerical perma- years any
493
award,
injury,
after
date of the
or after the date of the
or after the
(1946).
Annot.,
Rather,
See:
payment
compensation.
last
9
165 A.L.R.
which
Legislature
day
chose
last
was
paid.
always
phrase
Such
has
been taken to require an
to be filed
application
year
within
from
distal end
the compensation period fixed
awards.
previous
(1977),
275, 366
1206;
Co.,
Breeden v.
Swifty Oil
Inc.
174
Ind.
N.E.2d
App.
(1964),
(transfer
Milner v.
R.C.A.
136
App.
Ind.
Wilson v. Betz et al. 130 App. Ind. N.E.2d (transfer denied). 402
The date in which the award fixed the Industrial Board is not (1964), v.
the controlling date. supra, Milner R.C.A. 136 Ind. denied, 218, 195 reh. App. 136 Ind. App. N.E.2d 756.
In choosing such reference to point commence the running statutory period, has built in a feature which other
accomplishes objectives. example, For successive modifications tacked to previous awards can extend the period in which for future increased im (1976), 110, 341 pairment. Bagwell Chrysler Corporation Ind. App. N.E.2d 799. in instances of less injuries severe such as the bar, mechanism, at case the limitations when viewed with respect award, the rendition of an operates preclude or decrease the time within which an award be modified. (limitations Co., Inc.,
Breeden v. Oil Swifty supra, period to apply for entered); a modification expired eight days after award was (limitations award). R.C.A., Milner v. supra, expired six weeks after “the day Thus last for which compensation materially could paid” effect the time within which a petition modify could be brought after bar, the rendition of an award. In the at case the one expired before the award was entered. The then question becomes whether an employee may be precluded so modify consistent the requirements of Due Process of Law.
494 100, (1976), 346 Ind. App. v. Harris 169 Speedway on Town
Relying
of
646,
in apply-
interest
property
that she has a
contends
interest gives
that such
of award and
modification
for a
in a mean
time and
meaningful
heard at a
the
to be
right
review,
the United
appellate
the issue of
manner. On
ingful
on the merits
full and fair trial
held that if a
has
Supreme
States
Court
Amendment does
of the Fourteenth
Due Process
is
the
Clause
provided,
appeal.
state to
for an
provide
not
a
require
36;
862,
(1972),
56,
31 L.Ed.2d
92
v. Normet
405 U.S.
S.Ct.
Lindsey
585,
12,76
(1956), 351 U.S.
the
Illinois
S.Ct.
People
v.
State
of
of
Griffin
Similarly, rehearings 16A C.J.S. Constitutional proceedings. administrative quirements 628, 849, Law, force to reasoning applies equal 866. This at § bar, In at awards. the case of workmen’s modifications be heard on her claim before opportunity was afforded of the award a modification entry Consequently, the of an award. satisfy of due process. the requirements not required the modifica a vehicle for provided The has nevertheless Legislature In those cases. tion of awards in workmen’s States is the United appeal permitted, instances where an to some granted it cannot be Supreme has stated Court to others arbitrarily denied litigants capriciously Protection violating without the Clause. Equal Normet, v. Lindsey supra; Illinois, supra. v. the State People of of
Griffin
being
vested
the
appeal,
question
since there is no
Legislature
or withheld as the
given
discretion to be
legislative
fit,
to cases in which
ability
appeal
limit the
sees
can
sum.
prescribed
involved exceeds a
amount
660;
(1942),
41 N.E.2d
111 Ind. App.
Gary Rys. Co. v. Cinkoski
(1934),
Buchanan, C.J., by Participating Designation, Concur.
Garrard, P.J. in Result Opinion. Concurs with IN RESULT CONCURRING
OPINION by majori- the the result reached I concur with P.J. While Garrard, which has process of the due issue analysis I so under a different ty, do of awards. the modification concerning raised been is that attaches process to which due me that It seems to her in- recover for accident in an industrial injured employee of an whether that an assessment appear It would therefore juries. a consideration depend should process due affords statute 22-3-3-27, section, which deals act, merely one IC than rather entire of awards. modification of an award modification permits attacked provision The specific impair- amount of decrease the increase or limits. As time specified condition within changed of a because com- for modification statutory period majority, by discussed under was paid for which the last date to run as of mences apart when considered urged appellant, As original case, operation the facts of the given the balance of the act and originally for those this section creates an of unfairness appearance Indeed, the period small permanent partial impairment. awarded a (as here) when the “expired” well have seek a modification award is entered. con- the entire and the it affords are rights when statute illusory is
sidered one must conclude that the unfairness appearance unfortunate). (and is, additionally, for this reason particularly statutory who provide injured employees qualify is to purpose they for the full amount to which are entitled under its various benefits time limitations for the assertion provisions. imposes The statute also liability to those in civil In this imposed regard, similar actions. however, finality the statute from the which nor- departs principal mally civil the modification of final litigation permitting attends to the section in period according question. awards originally perma- For those determined to have suffered substantial finality nent the effect of this is to defer for a provision beyond generally substantial the two limitation period applicable not, however, See IC claims. 22-3-3-3.This does mean that those originally determined to have suffered little were denied year’s time within which to assure themselves of the correctness of the award. *7 by
I this specifications urged believe is well illustrated two of the (2) by Her Gibson. issue whether she should be queries “compelled file for a modification... to an award prior notwithstanding initial [that] no modification be filed to an initial prior adjudication (3) by Similarly, the claim the Board?” whether the act re- questions task;’ is, attempt her to “to to file quires perform ‘impossible benefits, for additional where no into rights ripened initial benefit have existence?”
The answers to these are when one considers that questions apparent an award and have is not to secure it modified. Her right Gibson’s injuries. by is to recover for her This is well illustrated the facts at hand. (6) Upon the award made she was entitled to six weeks benefits for her These were to commence as of the end of impairment. 4,1969. sec- disability November the modification on Under tempoary end tion she and her were to be accorded employer 17,1970, to determine whether six week or until December period, of the modification so in circumstances which change required there was a injury. the correct award her that she would receive fact, more made both received parties, Because no award had been Nearly the extent of impairment. this in which to determine time than 10,1971 on both that the extent her im- agreed six months later June weeks, on 21st the Board ap- to six June equivalent pairment ability She was not to recover proved deprived her because she was not limited claimed Instead, Form 9. she was entitled to at the Board prove hearing impairment. the extent of her deny
The statute did not
her due
and the decision should be
process
affirmed.
at
NOTE Shelby Read Charles James Malone May 1-777A136. Filed [No. 1978.]