Pirtle v. National Tea Co.

308 N.E.2d 720, 159 Ind. App. 597, 1974 Ind. App. LEXIS 1165
CourtIndiana Court of Appeals
DecidedMarch 26, 1974
DocketNo. 2-773A165
StatusPublished
Cited by1 cases

This text of 308 N.E.2d 720 (Pirtle v. National Tea 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
Pirtle v. National Tea Co., 308 N.E.2d 720, 159 Ind. App. 597, 1974 Ind. App. LEXIS 1165 (Ind. Ct. App. 1974).

Opinion

Hoffman, C.J.

This is a review of a decision of the Full Industrial Board of Indiana (Board) which denied John S. Pirtle (claimant) compensation for an injury that was found by the Board not to have arisen out of or in the course of the claimant’s employment with National Tea Company (employer) .

[598]*598Omitting caption and formal parts, the specific findings made and the award entered by the Board are as follows:

“That on the 11th day of July, 1969, plaintiff was in the employ of the defendant at an average weekly wage in excess of the maximum;
“It is further found that on September 29, 1969 Dr. Brady removed a disc from plaintiff’s back.
“It is further found that plaintiff was disabled from work of any kind for a period in excess of 26 weeks due to one or more discs in his back.
“It is further found that due to plaintiff’s back trouble he incurred medical expenses in the amount of $5,428.16 all of which expenses were necessary.
“It is further found that plaintiff’s back condition has reached a permanent and quiescent state and that plaintiff is permanently partially impaired in the amount of 85% to the man as a whole;
“It is further found that plaintiff had had several accidents on the job with the defendant prior to July 11, 1969, and on each occasion had reported by the company procedure.
“It is further found that plaintiff did not report an occupational accident to his foreman on July 11, 1969.
“It is further found that plaintiff alleges that while lifting a box of 20 mule team borax he injured his back at about 10:00 P.M. on that Friday, and that the incident made á sound like a gun and that plaintiff continued to work through his shift change.
“It is further found that plaintiff worked on Monday after July 11, 1969, and alleges that he went home at 10:00 P.M. Tuesday night because of the pain.
“It is further found that plaintiff did not sustain an accidental injury on July 11, 1969 by reason of an accident arising out of and in the course of his employment with the defendant.
“The Full Industrial Board of Indiana now finds for the defendant and against the plaintiff on plaintiff’s Form 9 Application filed December 17,1969.
“AWARD
“IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Full Industrial Board of Indiana that the plaintiff shall take nothing by virtue of his Form 9 Application heretofore filed December 17, 1969.”

[599]*599The facts in the record most favorable to the appellee are as follows:

The claimant’s testimony presented before the Board shows that while he was working on Friday, July 11, 1969, he picked up “a box of 20 Mule Team Borax, came between two skids and slipped,” and in doing so he heard a “popping” sound in his back. The “box of 20 Mule Team Borax” referred to was a carton weighing “[b]etween 40 and 60 pounds.” Thinking that he had only pulled a muscle in his back, he did not inform his employer of his injury at that time. Claimant returned to work on the following Monday and Tuesday; on the latter day he informed his foreman that his back was causing him pain from his injury of the previous Friday. The foreman sent the claimant home because of his inability to straighten up. The next day, the claimant informed the employer of his injury by telephone and was advised by an employee of the employer to go to the employer’s clinic for treatment of the injury. The claimant went to the clinic several times over a period of weeks. The customer and employer representative of the Company testified that its file on claimant contained a memorandum stating that the accident had been reported to a foreman but he had refused to fill out the accident report because he was not the claimant’s foreman on the night of the injury. The file also contained information indicating that the claimant had been sent to the clinic and that employer had received an $84.60 medical bill from the clinic for services rendered to claimant.

The findings and award deny compensation to the claimant because of lack of notice of the injury to the employer, and because the injury did not arise out of or in the course of his employment.

An injured employee must give notice to his employer as a condition precedent to receiving compensation under the Workmen’s Compensation Act. IC 1971, 22-3-3-1, Ind. Ann. Stat. §40-1222 (Burns 1965), states, in part:

[600]*600“Notice to employer of injury or death. — Unless the employer or his representative shall have actual knowledge of the occurrence of an injury or death at the time thereof or or shall acquire such knowledge afterward, the injured employee or his dependents, as soon as practicable after the injury or death resulting therefrom, shall give written notice to the employer of such injury or death.
“Unless such notice is given or knowledge acquired within thirty [30] days from the date of the injury or death, no compensation shall be paid until and from the date such notice is given or knowledge obtained.”

This court has long held that an employer seeking to defend against payment of a claim on the ground that he was prejudiced by lack of knowledge or defective notice of the employee’s injury has the burden of proof to show such lack of notice or defective notice. State v. Gageby (1933), 95 Ind. App. 681, 184 N.E. 190; In re Trout-man (1921), 77 Ind. App. 110, 133 N.E. 150; Garton v. Klein-knight (1920), 74 Ind. App. 267, 128 N.E. 770. And, even if the employer shows lack of notice, compensation is not barred unless the employer can show he is prejudiced by such lack of knowledge. Where such prejudice is shown, the employee’s right to compensation is barred only to the extent of the prejudice. IC 1971, 22-3-3-1, §40-1222 (Burns 1965), supra.

In the case at bar, the employer neither alleged that it was prejudiced by inadequate notice from the claimant, nor attempted to prove to what extent and in what manner claimant’s failure to submit a written accident report has prejudiced. it.

IC 1971, 22-3-3-2, Ind. Ann. Stat. §40-1223 (Burns 1965), sets forth the requirements of the employee’s notice to his employer of his accident or injury:

“Contents and service of notice. — The notice * * * shall state the name and address of the employee, the time, place, nature and cause of the injury or death, and shall be signed by the injured employee or by some one in his behalf or by one [1] or more of the dependents, in case of death, or by some person in their behalf. Said notice may be served [601]*601personally upon the employer, or upon any foreman, superintendent or manager of the employer to whose orders the injured or deceased employee was required to conform or upon any agent of the employer upon whom a summons in a civil action may be served under the laws of the state, * *

This court has repeatedly held that under our Workmen’s Compensation Act actual knowledge of a claimant’s injury by another employee who has some supervisory authority over claimant is sufficient to impute that notice to the employer.

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Cite This Page — Counsel Stack

Bluebook (online)
308 N.E.2d 720, 159 Ind. App. 597, 1974 Ind. App. LEXIS 1165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pirtle-v-national-tea-co-indctapp-1974.