165 N.E. 258 | Ind. Ct. App. | 1929
There is no dispute as to the facts in this case, and briefly, they may be stated as follows: On June 12, 1926, the appellee was in the employ of the appellant, and received an injury by accident arising out of and in the course of his employment. The parties entered into a compensation agreement, under the terms of which appellee was to receive compensation at the rate of $13.20 per week during temporary total disability, beginning June 19, 1926, and not exceeding, as to time, the period fixed by law. The appellant also paid the reasonable and necessary surgical, medical and hospital expenses. In August, 1926, appellee returned to his work with appellant and resumed his employment at the former wages. He also, at said time, executed and delivered a final settlement receipt, covering five and two-sevenths weeks, the period during which he was totally disabled. The said "compensation agreement" was duly approved by the Industrial Board, and said final receipt was filed with said board.
On December 9, 1927, appellee filed with the Industrial Board his application for the "adjustment of his claim for compensation," and on December 16, 1927, he filed *382 with said board his application for a review of the award on account of alleged "change of conditions."
After the filing of these applications, notice of the time andplace of hearing thereon was given to the appellant. A hearing was had, and later, upon application, there was a review by the full Industrial Board. Upon this review, the full board found,inter alia, that on June 12, 1926, the appellee received a personal injury by accident arising out of and in the course of his employment; that his average weekly wage was in excess of $24; that the employer had actual knowledge of the accident and injury; that the parties entered into a compensation agreement which was approved by the Industrial Board; that the said agreement provided for payment of compensation during totaldisability only, and there was no provision therein for the payment of compensation on account of the loss of vision of plaintiff's eye; that appellee's injury, originally andimmediately, resulted in the total and permanent loss of the vision of his left eye; that appellee received and receipted for five and two-sevenths weeks' compensation as being in full of compensation under said agreement; that on December 9, 1927, appellee filed an application herein for an award of compensation, alleging that his said injury had resulted in the permanent loss of the vision of his left eye; that on December 16, 1927, appellee also filed an application for an award of compensation on account of a change of conditions.
Upon the findings made, there was an award of compensation upon the application of December 9, 1927, for 150 weeks, with credit for what had theretofore been received, as for permanent partialimpairment. From this award, this appeal is prosecuted, and the matters urged for reversal are those hereinafter considered.
Upon the said award being made, the appellant moved to strike out part of the said findings, and also *383 part of said award, which motion was overruled, and of this action complaint is made.
Counsel for appellant says that it had no notice of the filing of said application of December 9, 1927; that the filing of the application of December 16 was an abandonment of the said 1. prior application and that the same should not, therefore, have been considered. We cannot concur in this contention. The application of December 16 did not purport to be an "amended application," and, in fact, was not such; it was an independent application for an award based upon a supposed "change in conditions," and was, as an application, in no way related to the application of December 9, and did not supersede the same. We know of no rule of law or practice that prohibits the filing of two such applications.
Appellant says it had no notice of the filing of said application of December 9, but the answer to this contention is that the statute (Acts 1915, ch. 106, § 58, § 9503 Burns 2. 1926) requires the board to give notice of the time and place of the hearing only, and parties must take notice of papers on file in the case. If a party does not examine the record or search the files to see what is therein contained, he must count that as his misfortune. There was no error in overruling said motion.
The appellant next contends that, as the application upon which the award in this case was made was not filed within one year from the time total disability ceased — July, 1926 — it was 3. barred by the one year limitation mentioned in § 45 of our compensation act; that the decision in the case of In reHogan (1921),
The application for an award of compensation as for permanent partial impairment, filed herein December 9, 1927, was filed within the two years given by § 24, and therefore in time.
Affirmed.