Bertram v. Bicknell Coal & Mining Co.

Indiana Court of Appeals

Bertram v. Bicknell Coal & Mining Co.

148 N.E. 177, 83 Ind. App. 242, 1925 Ind. App. LEXIS 26

CourtIndiana Court of Appeals

DecidedJune 5, 1925

DocketNo. 12,231.

StatusPublished

Cited by1 cases

This text of 148 N.E. 177 (Bertram v. Bicknell Coal & Mining Co.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bertram v. Bicknell Coal & Mining Co., 148 N.E. 177, 83 Ind. App. 242, 1925 Ind. App. LEXIS 26 (Ind. Ct. App. 1925).

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Opinion

Nichols, J.

Appellant filed a petition with the Industrial Board asking that appellee be required to pay *243 compensation to appellant under a compensation agreement entered into by and between appellant and appellee. After hearing the evidence, the Industrial Board, by a majority of its members, found that November 26, 1920, appellant, while in the employment of appellee at an average weekly wage of $24, received a personal injury by an accident which arose out of and in the course of his employment, of which appellee had notice and furnished medical attention; that on December 14, 1920, appellant and appellee entered into a compensation agreement, under the terms of which appellee agreed to pay appellant compensation at the rate of $13.20 per week during temporary total disability not exceeding the period fixed by law, beginning on November 30, 1920; that said agreement was approved by the Industrial Board; that, under the terms of said agreement, compensation was paid up to and including February 7, 1921; that on February 8, 1921, appellant signed “Form 28” of the Industrial Board, which is a receipt of employee in final settlement of compensation, in which he stated that his disability ceased on February 8, 1921; that more than two years had elapsed from the date of filing of final receipt to the filing of appellant’s petition herein. On this finding, the Industrial Board entered an order on December 31, 1924, that appellant’s petition be “dismissed for want of jurisdiction.”

It will be observed that the board found, not that appellant's disability had ceased, but that he had signed a receipt in which he had so stated. Such receipt was not conclusive evidence that the disability had ceased. There is no finding that the disability had ceased or that the compensation period had terminated on February 8, 1921, or on any other date. In the absence of a finding that such period had terminated more than one year before appellant's application was filed, the Indus *244 trial Board had jurisdiction. The question involved has been definitely determined in Fort Branch Coal Mining Co. v. Farley (1921), 76 Ind. App. 37, 130 N. E. 132, 131 N. E. 228 , and we need not further discuss it. See, also, Eureka Block Coal Co. v. Wells (1925), ante 181, 146 N. E. 869, in point as to the effect of a receipt.

The order is reversed, with instruction to reinstate' appellant’s application, and to make such further finding of facts as is warranted by the evidence, and to render an award accordingly.

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Nichols, J.

Appellant filed a petition with the Industrial Board asking that appellee be required to pay *243 compensation to appellant under a compensation agreement entered into by and between appellant and appellee. After hearing the evidence, the Industrial Board, by a majority of its members, found that November 26, 1920, appellant, while in the employment of appellee at an average weekly wage of $24, received a personal injury by an accident which arose out of and in the course of his employment, of which appellee had notice and furnished medical attention; that on December 14, 1920, appellant and appellee entered into a compensation agreement, under the terms of which appellee agreed to pay appellant compensation at the rate of $13.20 per week during temporary total disability not exceeding the period fixed by law, beginning on November 30, 1920; that said agreement was approved by the Industrial Board; that, under the terms of said agreement, compensation was paid up to and including February 7, 1921; that on February 8, 1921, appellant signed “Form 28” of the Industrial Board, which is a receipt of employee in final settlement of compensation, in which he stated that his disability ceased on February 8, 1921; that more than two years had elapsed from the date of filing of final receipt to the filing of appellant’s petition herein. On this finding, the Industrial Board entered an order on December 31, 1924, that appellant’s petition be “dismissed for want of jurisdiction.”

It will be observed that the board found, not that appellant's disability had ceased, but that he had signed a receipt in which he had so stated. Such receipt was not conclusive evidence that the disability had ceased. There is no finding that the disability had ceased or that the compensation period had terminated on February 8, 1921, or on any other date. In the absence of a finding that such period had terminated more than one year before appellant's application was filed, the Indus *244 trial Board had jurisdiction. The question involved has been definitely determined in Fort Branch Coal Mining Co. v. Farley (1921), 76 Ind. App. 37, 130 N. E. 132, 131 N. E. 228 , and we need not further discuss it. See, also, Eureka Block Coal Co. v. Wells (1925), ante 181, 146 N. E. 869, in point as to the effect of a receipt.

The order is reversed, with instruction to reinstate' appellant’s application, and to make such further finding of facts as is warranted by the evidence, and to render an award accordingly.

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148 N.E. 177, 83 Ind. App. 242, 1925 Ind. App. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bertram-v-bicknell-coal-mining-co-indctapp-1925.

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