Bowles v. Second Injury Fund

827 N.E.2d 170
CourtIndiana Court of Appeals
DecidedMay 13, 2005
DocketNo. 93A02-0412-EX-1053
StatusPublished

This text of 827 N.E.2d 170 (Bowles v. Second Injury Fund) 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
Bowles v. Second Injury Fund, 827 N.E.2d 170 (Ind. Ct. App. 2005).

Opinion

OPINION

ROBB, Judge.

Roger Bowles appeals the Worker's Compensation Board's ("the Board") order denying him retroactive entry into the See-ond Injury Fund provided for in Indiana Code section 22-38-3-18. We affirm.

Issue

Bowles raises one issue for our review, which we restate as whether the Board properly denied Bowles retroactive entry into the Second Injury Fund.

Facts and Procedural History

The case at issue here concerns Bowles' efforts to gain retroactive entry into Indiana's Second Injury Fund, which is provided for in Indiana Code section 22-3-3-13. This case stems out of Bowles' original application for adjustment of claim filed in 1993. We adopt the statement of facts as set forth in Bowles v. Griffin Indus., 798 N.E.2d 908 (Ind.Ct.App.2003), which are as follows:

[Oln December 15, 1986, Bowles visited Dr. Ronald G. Bennett complaining of back problems, bilateral leg pain, and difficulty walking. Bowles told Dr. Bennett that he had suffered from back pain for seven years and that his back pain was so severe that he had been hospitalized the previous June. Dr. Bennett noted that Bowles had previously been treated with cortisone injections. Dr. Bennett saw Bowles again in January and February 1987 because of Bowles's continued back pain, and, in August 1987, Dr. Bennett performed a discecto-my on Bowles to alleviate his symptoms.
On October 24, 1990, Bowles, while employed full-time by Griffin [Industries] as a driver, injured his lower back "in an incident arising out of and in the course of his employment" for Griffin. Griffin paid Bowles temporary total disability (TTD) benefits and statutory medical benefits from the day of the incident until September 22, 1998. Bowles filed his Application for Adjustment of Claim on September 80, 1998.
A hearing before a member of the Board was conducted on May 25, 2000, [the case was fully briefed by the parties by March 22, 2001,] and on March 5, 2002, the member found that Bowles was permanently partially impaired (PPT) as a result of the October 24, 1990 injury. Moreover, the Board member [144]*144found that Bowles's PPI rating was 21% of the whole person, as determined by Dr. Bennett. The Board member adopted Dr. Bennett's opinion that 11% impairment-53.5% of the 21% impairment rating-was attributable to the injury he received while employed with Griffin and 10% impairment-46.5% of the 21% impairment rating-was caused by Bowles's prior condition. Thus, the Board member awarded Bowles $6600 in reduced PPI benefits. The Board member held that "Just as his PPI is apportioned between his prior active condition and his work injury of October 24, 1990, pursuant to IC 22-3-3-12, [Bowles] PTD [permanent total disability] should also be apportioned." Accordingly, the Board - member - awarded - Bowles $55,967.13 in PTD benefits, which represented 53.5% of the PTD benefits he would have received had he not had a preexisting condition. The Full Worker's Compensation Board affirmed the Board member's decision [on November 8, 2002].

Id. at 909-10.

On appeal, we first noted that this case centered on Indiana Code section 22-8-3-12, "which apportions worker's compensation awards between pre-employment and employment periods in the event that an injury suffered in the course of employment aggravated a prior medical condition." Id. at 910. We determined that the Board had simply applied the impairment ratio to determine the allocation of a disability award and that this procedure was not within the language of Indiana Code section 22-38-8-12. Id. at 912. We ultimately reversed and remanded the case back to the Board. Id.

Before the Board could take any action on remand, in January of 2004, Griffin Industries' insurer paid Bowles the remainder of the benefits he was entitled to for his permanent total disability (PTD). Thus, by January 29, 2004, Bowles had received all of the temporary total disability (TTD) and PTD benefits he was entitled to under Indiana Code section 22-8-3-10. On January 29, 2004, Bowles, pursuant to Indiana Code section 22-3-3-18, filed an application for benefits from Indiana's See-ond Injury Fund. In his application, Bowles also requested retroactive entry into the Second Injury Fund as of November 21, 2001. In July of 2004, a single member of the Board granted Bowles entry into the Second Injury Fund as of January 29, 2004, but denied his request for retroactive admittance. Bowles appealed this decision to the full Board. On November 3, 2004, the full Board issued an order affirming the decision of the single member. The full Board's November 3, 2004, Order states in pertinent part:

It is further found that this cause has been set and continued by the parties in this case multiple times over a span of 11 (eleven) years due to multiple reasons including failure of the Plaintiff [Bowles] to timely respond to discovery requests.
It is further found that the following examples indicate the above referenced delay:
September 30, 1993: Application for Adjustment of Claim filed on behalf of [Bowles] alleging an October 24, 1990 date of injury.
December 27, 1993: Motion to Continue filed on behalf of the Defendant [Griffin Industries] for Hearing set by the Board on January 6, 1994. Defendant's Motion states that [Bowles'] deposition was requested on five dates in November 1993 and three dates in December 1998 with no response from [Bowles'] counsel.
December 27, 1998: [Bowles] filed a Request to Continue the hearing set by the Board.
[145]*145March 22, 1994: Motion to Continue April 12, 1994 hearing filed on behalf of the Defendant due to [Bowles'] deposition recently taken on March 3, 1994 and pending discovery requests. No objection filed on behalf of [Bowles].
August 31, 1994: Motion to Continue hearing set for September 22, 1994 filed on behalf of the Defendant, defendant states they are waiting on depositions of [Bowles'] medical experts. No objection filed on behalf of [Bowles].
December 19, 1994: Motion to Continue hearing set for December 19, 1994 filed on behalf of the defendant. No objection filed on behalf of [Bowles].
April 17, 1995; Motion to Continue hearing set for April 17, 1995 filed on behalf of [Bowles].
September 27, 1995: Motion to Continue hearing set for October 12, 1995 filed on behalf of the Defendant. Defendant states in their continuance that a deposition is still pending due to a cancellation on behalf of [Bowles]. No objection filed on behalf of [Bowles].
January 29, 1996: Motion to Continue hearing set for February 22, 1996 filed on behalf of the Defendant. Defendant states in their continuance that they cannot go forward because [Bowles] has cancelled a key deposition two times. No objection filed on behalf of [Bowles].
May 30, 1996: Motion to Continue hearing set for June 18, 1996 filed on behalf of the defendant. - Motion states that both the Plaintiff and Defendant continue to conduct discovery.
June 4, 1996: [Bowles] objects to the Defendants [sic] Motion to Continue after the Board has already granted it on May 31, 1996.

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Related

United States Steel Corp. v. Spencer
655 N.E.2d 1243 (Indiana Court of Appeals, 1995)
Bowles v. Griffin Industries
798 N.E.2d 908 (Indiana Court of Appeals, 2003)
Walker v. State, Muscatatuck State Development Center
694 N.E.2d 258 (Indiana Supreme Court, 1998)

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Bluebook (online)
827 N.E.2d 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowles-v-second-injury-fund-indctapp-2005.