75 Ind. App. 53 | Ind. Ct. App. | 1921
The Industrial Board has certified the following statement of facts to this court: On December 19, 1918, one Charles L. Hogan was in the employment of the Nordyke and Marmon Company in the city of Indianapolis, Indiana, at an average weekly wage of
The employer admits that the injury resulted in the permanent loss of twenty-five per cent, of the use of the
The position of the employer is as follows with respect to said question: First. That the period of compensation, fixed by said agreement, was the period of his total disability, which terminated on April 7,1919. Second. That by virtue of amended §45 of the Indiana Workmen’s Compensation Act (Acts 1919 p. 158) the plaintiff’s application for additional compensation on account of the permanent, partial impairment of his left hand, should have been filed within one year from April 7, 1919, or at least within one year from May 15, 1919, the date upon which amended §45 went into force.
The position of the plaintiff with reference to said question is as follows: First. That the compensation period fixed by the compensation agreement hereinbefore referred to was 500 weeks. Second. That the amendment of said §45 has no application to injuries which occurred prior to May 15, 1919. Third. As the compensation agreement made no provision for compensation on account of any permanent, partial impairment resulting from his injury, the agreement was incomplete, and the plaintiff may at any time within two years from the date of his injury file his claim for compensation on account of said permanent, partial impairment.
On the foregoing facts the Industrial Board of Indiana respectfully submits the following question of law for determination.
Is the right of Charles L. Hogan to an award of compensation for the permanent, partial impairment of his left hand, upon his application filed with the Industrial Board on December 10, 1920, barred by the statute of limitations?
The same principle was announced in Standard Cabinet Mfg. Co. v. Iliff (1918), 67 Ind. App. 568, 119 N. E. 479.
From the statement of facts submitted, we learn that said Hogan was totally disabled on December 19, 1918, and that such disability continued until April 7, 1919, at, and after which time he was continually disabled, to the extent of a permanent partial impairment (twenty-five per cent.) in the use of his left arm below the elbow.
Under the authorities, supra, he then had a right to apply at once to the Industrial Board for an award of compensation, based upon such partial disability.
Section 45 of the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918) as amended in 1919 (Acts 1919 p. 158), among other things, provides:
“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 modifications or change in the award, ending, lessening, continuing, or extending the payments, previously awarded, either by agreement or upon*57 hearing, as it may deem just, subject to the maximum and minimum provided for in this act. * * *.
“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 one year from the termination of the compensation period fixed in the original award, made either by agreement or upon hearing.”
The latter part of the above section of our statute fixes the time within which the party must act, if he would enforce a present right. It is a statute of limitations. Such statutes are considered necessary to the welfare of society. They are enacted on the presumption that one having a well-founded claim will not delay enforcing it. They neither create nor destroy rights, but pertain to the remedy solely. Lamberton v. Grant (1901), 94 Me. 508, 48 Atl. 127, 80 Am. St. 415.
The total disability and payments under it having ceased April 7, 1919, the application for an allowance, on account of a continuing disability, made December 10,1920, was not within the statutory period, and therefore too late. It was barred by said statute.