In re Holland

72 Ind. App. 588 | Ind. Ct. App. | 1920

Batman, J.

—The Industrial Board has certified the following statement of facts to this court:

“On November 20, 1918, one John Holland was in the employment of the Prairie Plow Company at an average weekly wage of $24.00; that on said date while engaged in the discharge of the duties of his employment, the said John Holland received a personal injury by aii accident arising out of and in the course of his employment, of which the employer had actual knowledge at the time; that said injury resulted in the loss by amputation of the right hand at' the wrist joint; that on December 3, 1918, said John Holland and his employer executed a compensation agreement, which provided that the employer should pay him 150 weeks’ compensation at the rate of $13.20 per week, beginning on November 20, 1918, for the loss of his-right hand by separation; that said agreement was filed with and approved by the Industrial Board of Indiana; that under said agreement the employer paid to the said John Holland 26 weeks’, compensation at the rate of $13.20 per week, paying the compensation up until and including May 21, 1919; that on May 26, 1919, the said John Holland and his employer filed with the Industrial Board of Indiana an agreement providing that the commutable value of the remaining 124 weeks of his compensation, on the approval of the Industrial Board, should be paid in cash in a lump sum; that as reasons justifying the approval of said agreement it was stated therein that the said J ohn Holland owned a residence property, upon which there was a mortgage incumbrance of $1,000.00 past due; that since receiving his injury his wife had died and that the expenses of her last sickness and burial amounted to $500.00, which was unpaid; that on said date the Industrial Board approved said agreement and fixed the corn-mutable value of the 124 weeks’ compensation at $1,580.00, and made an order directing the employer to pay it to the said J ohn Holland in cash in a lump sum; that on June 5, 1919, the employer paid said sum of $1,580.00 to the said John Holland in cash in a lump sum and took his receipt therefor, reciting that said sum was received by the said Jolm Holland ‘in full satisfaction and discharge of all liability, of 'the employer to me by reason of the injury of November 20, 1918’; that on August 4, 1919, by reason of conditions developing after May 26, 1919, and growing out of the injury of November 20, 1918, the.plaintiff’s right'arm was amputated two inches below the shoulder joint; that on September 25,1919, said John Holland filed with the Industrial Board of Indiana his petition to review on account of a change in. conditions, and therein setting up the facts relative to the amputation of. his- arm on August 4, 1919. Said John Holland claims that by reason of.the amputation of his arm on August 4, 1919,. above the elbow joint, he is entitled to an additional 50‘weeks’ compensation. The employer contends that the said John Holland is not entitled to any additional .compensation whatever; that the approval of the-lump sum agreement of May 26, 1919, by the Industrial Board ■ of Indiana, and the payment on June 5, 1919, of the $1,580.00, fixed by said board as the commutable value of the unpaid 124 weeks’ compensation, completely terminates and extinguishes all compensation rights of the said John Holland growing out of the injury of November 20, 1918. Upon the other hand, John Holland contends that the approval of said agreement and the payment of the lump sum fixed by the Industrial Board has no effect in the way of discharging any compensation liability on account of the change in conditions subsequent to the approval of said lump sum agreement. ’ ’

Upon the foregoing facts the Industrial Board, by virtue of §61 of the Workmen’s Compensation Act (§80201 et seq. Burns’ Supp. 1918, Acts 1915 p. 392, as amended, Acts 1917 p. 154), has submitted the following questions of law for our determination: “(1) Is John Holland entitled to an award of 50 weeks’ additional compensation? (2) Did the approval of the lump sum agreement of May 26, 1919, and the payment of the sum fixed by the Industrial Board, have the effect of extinguishing the compensation liability of the employer arising from a change in conditions on account of the original injury taking place after said date?”

1. If no part of the compensation due the injured employe had been paid in a lump sum, in pursuance to the order of the Industrial Board, made by virtue of §43 of the Workmen’s Compensation Act, supra, it is obvious that, under the facts stated, the board would have had the right, by virtue of the provisions of §45 of said act, to continue the payment of the installments specified in the original compensation agreement. The question arises, Did the fact that a portion of such compensation was paid in a lump sum, in pursuance of an order of the board, affect its right or duty in that regard? By reference to said §43 it will be observed that the payment of compensation in a lump sum is for the redemption, in whole or in part, of certain future installments thereof. The amount of such lump sum is not to be determined arbitrarily, but it is to be “the commutable value of the installments to be redeemed.” It thus appears that the payment of such lump sum, when permitted by the board, is simply the payment of such future installments by the payment of their commutable value in cash. Said §45 provides in part as follows: “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.” As amended, Acts 1919 p. 158. •

It thus appears that the Industrial Board has a continuing jurisdiction over the cases that come before it where awards are made, and it is given express authority, where change in conditions is shown, to end, lessen, continue or extend the payments previously awarded. This provision manifestly applies where an award is payable in installments, and we see no good reason for not applying it where such installments have been paid in a lump sum by authority of .the board. The language of the statute does not preclude it, and there appears to be sufficient grounds for construing it so as to give it that effect. To make the provision of the statute quoted apply in' either case would seem to be in harmony with the spirit and purpose of the act, and appeals to our sense of justice. •

2. We note that*after the Industrial Board had made the order for the payment of the $1,580 in a lump sum the employer paid the employe said amount in cash, and took his receipt therefor, reciting that said sum was received “in full satisfaction and discharge of all liability of the employer to me by reason of the injury of November 20, 1918.” However, we do not attach any significance to such recital, as it is expressly provided in §15 of the Workmen’s Compensation Act (as amended, Acts 1919 p. 158) that: “No contract or agreement, written or implied, no rule, regulation or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this act.” The conclusion we have reached finds support in the decisions of the Supreme Court of Illinois where a workmen’s compensation statute is in force with similar provisions for the payment of compensation in a lump sum, and for reviewing an award on a change in condition. Peoria R. Co. v. Industrial Comm. (1919), 290 Ill. 177, 125 N. E. 1; Ellsworth v. Industrial Comm. (1919), 290 Ill. 514, 125 N. E. 246; Tribune Co. v. Industrial Comm. (1919), 290 Ill. 402, 125 N. E. 351. We are not unmindful that the Supreme Judicial Court of Massachusetts, in considering the effect of a lump-sum payment, under the provisions of a statute somewhat similar in that regard, has reached a contrary conclusion. McCarthy’s Case (1917), 226 Mass: 444, 115 N. E. 764. However, we believe that the conelusion there announced is not supported by the better reason.

3. It appears that the injury under consideration first resulted in the amputation of the employe’s right hand at the wrist, and that'an agreement for the payment of compensation'therefor for 150 weeks was approved by the Industrial Board. This is the period fixed by §31 of the Workmen’s Compensation Act then in force for an injury so resulting. It further appears that by reason of a change in conditions, developing after the order made by the board for the payment of the remaining installments in a lump sum, and growing out of the original injury, the employe’s, right arm was amputated two inches below the shoulder. Under the provisions of said §31 this fact entitled the employe to compensation for 200 weeks, or fifty weeks in addition to the period specified in the original compensation agreement.

We therefore answer the first question submitted in the affirmative, and the second question in the negative.