Sissom v. Commodore Corp.

349 N.E.2d 724, 169 Ind. App. 547, 1976 Ind. App. LEXIS 955
CourtIndiana Court of Appeals
DecidedJune 29, 1976
DocketNo. 2-276A81
StatusPublished
Cited by2 cases

This text of 349 N.E.2d 724 (Sissom v. Commodore Corp.) 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
Sissom v. Commodore Corp., 349 N.E.2d 724, 169 Ind. App. 547, 1976 Ind. App. LEXIS 955 (Ind. Ct. App. 1976).

Opinion

Statement of the Case:

Lowdermilk, J.

Appellant Bufford L. Sissom (Sissom) appeals from a judgment of the Full Industrial Board (Board) which in affirming the decision of a single hearing examiner found that his Form 14 “Application For Review on Account of Changed Conditions” was not filed within the limitation period found in IC 1971, 22-3-3-27 (Burns Code Ed.).

FACTS:

On April 16, 1971, Sissom received an injury in the course of his employment with Commodore Corporation of Indiana (Commodore).

Pursuant to an agreement entered into between the parties which was approved by the Board, Sissom was to receive $57.00 per week beginning April 19, 1971, and continuing “until terminated in accordance with the provisions of the Workmen’s Compensation Law of the State of Indiana.” The record discloses the following chronology of events:

February 24, 1973 — Commodore filed a Form 14 seeking to have Sissom’s compensation payments reduced or terminated.

March 1, 1973 — The Board caused notice of Commodore’s Form 14 application to be sent to Sissom.

April 22, 1975 — The Board gave notice to the parties that the hearing on Commodore’s Form 14 application had been set for June 10,1975.

May 27, 1975 — Sissom filed a motion requesting the Board to require Commodore to furnish medical services and to pay medical bills.

[549]*549June 3,1975 — Commodore filed a motion to dismiss its Form 14 application which was granted without notice or hearing afforded Sissom.

June 6,1975 — Sissom filed a Form 14 which was denied.

June 13, 1975 — Sissom filed a Form 16 which sought review of the single hearing examiner’s actions by the Full Board.

On January 29, 1976, the Board made the following findings and award:

“. . . Section 45 of the Act [IC 1971, 22-3-3-27] provides the continuing power and jurisdiction of the Board over each case but further provides that ‘nor shall any application therefor be filed by either party after the expiration of two years from the last day for which compensation was paid under the original award made either by agreement or upon hearing, . . .’ Plaintiff’s Form 14 filed June 6, 1975 is not timely filed and same is hereby dismissed. Defendant’s Form 14 heretofore filed February 24, 1973, being dismissed by the Industrial Board June 3, 1975, was proper. Plaintiff’s proper procedure to envoke the jurisdiction and power of the Industrial Board is by the filing of a Form 9 within two years after the date of injury, or in the ease of an award either upon hearing or by agreement, as in this case, is to file a Form 14 in accordance with the provisions of Section 45. This plaintiff has failed to do.”

ISSUES:

1. Was the decision of the Board in affirming the hearing examiner’s dismissal of Sissom’s Form 14 contrary to law?

2. Did the failure of the Board to permit Sissom to have his dispute under the compensation agreement settled by the Board violate his right to due process and equal protection?

DISCUSSION AND DECISION:

Commodore argues that the Board correctly found Sissom’s Form 14 was not timely because it has not made a compensation payment to Sissom since February 14, 1973. We disagree.

IC 1971, 22-3-3-27 (Burns Code Ed.) provides:

“. . . The board shall not make any such modification upon its own motion, nor shall any application therefor be filed [550]*550by either party after the expiration of two [2] years from the last day for which compensation was paid under the original award made either by agreement or upon hearing, except that applications for increased permanent partial impairment are barred unless filed within one [1] year from the last day for which compensation was paid. The board may at any time correct any clerical error in any finding or award.” (Our emphasis.)

The cases cited by counsel, and our research, discloses to us that the limitation period of the above statute begins to run from the last day specified in the compensation agreement of the parties or the compensation period fixed by the Board. Wilson v. Betz Corporation (1959), 130 Ind. App. 83, 159 N.E.2d 402 [60 weeks]; Allen v. United Telephone Company, Inc. (1976), 168 Ind. App. 696, 345 N.E. 2d 261 [67.5 weeks]. In the case at bar there is no definite compensation period fixed in the parties’ agreement. The agreement provides only “that compensation will be paid until terminated in accordance with the provisions of the Workmen’s Compensation Law of Indiana.” It therefore becomes necessary for us to determine the steps necessary for terminating one’s duty to make compensation payments under our Wokmen’s Compensation Law.

Industrial Board Procedural Rule (IBPR) 32, Burns Adm. Rules and Reg. § 40-1518-2 provides:

“If an injured employee, or his dependents have been awarded compensation by the industrial board, either by approval of an agreement, or by an award upon a hearing, the employer shall continue the payments of compensation under the terms of such award or agreement for the specific period therein fixed, or until such employee returns to work, or the dependency ends, or the employer shall have disagreed with the injured employee or the dependents as to the continuation of such compensation payments.
“In such cases the employer or such employer’s insurance carrier, shall file with the industrial board in duplicate, a memorandum prescribed by the industrial board showing payments made, the date of the employee’s return to work, the date of cessation and reason for termination of the de[551]*551pendency and any other fact or facts pertaining to the cessation of said payments of compensation!” (Our emphasis.)

This Board Rule gave Commodore the power to stop making payments to Sissom. IC 1971, 22-3-4-2 (Burns Code Ed.) provides that:

“The board may make rules not inconsistent with this act . . . for carrying out the provisions hereof. . .

However, this court may not consider rules promulgated by the Board in a vacuum, but rather, must construe these rules in such a way that the underlying purposes of the Workmen’s Compensation Act are accomplished. Also, the Board may not make rules and regulations inconsistent with the statute it is administering. It may not by its rules add to or detract from the law as it has been enacted. Indiana Dept, of State Revenue, Indiana Revenue Board, Indiana Gross Income Tax Division v. Colpaert Realty Corp. (1952), 231 Ind. 463, 109 N.E.2d 415, 422. Therefore, IBPR 32, supra, must be read in conjunction with IC 1971, 22-3-4-5 (Burns Code Ed.) which provides:

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Related

R.W. Armstrong Corp. v. Manhart
585 N.E.2d 1377 (Indiana Court of Appeals, 1992)
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448 N.E.2d 1245 (Indiana Court of Appeals, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
349 N.E.2d 724, 169 Ind. App. 547, 1976 Ind. App. LEXIS 955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sissom-v-commodore-corp-indctapp-1976.