Summary
In Railway Express Agency v. Harrington, 119 Ind. App. 593, 88 N.E.2d 175 (1949), where an amendment to the Indiana statute shortened the limitation period within which claims must be filed, it was held that the rights and duties of the parties were fixed by the law in effect at the time of injury and were not affected by the subsequent amendment.
Summary of this case from Barksdale v. H.O. Engen, Inc.Opinion
No. 17,902.
Filed October 25, 1949. Rehearing denied December 5, 1949.
1. WORKMEN'S COMPENSATION — Proceedings to Secure Compensation — Time for Filing Claim — Statutory Limitation of Time Is Condition Precedent to Right To Maintain Action — Burden of Proof on Claimant. — The limitation of time for the filing of a claim under the Workmen's Compensation Act is a condition precedent to the right to maintain the action, and it affects the right and not the remedy, and it is not to be regarded merely as a statute of limitations, but it is a condition attached to the right to recover, and the burden of proving the claim was filed within the statutory period rests with the claimant. Burns' 1940 Replacement, § 40-1224. p. 596.
2. WORKMEN'S COMPENSATION — Proceedings to Secure Compensation — Time for Filing Claim — Statutory Limitation of Time Is Condition Precedent to Right To Maintain Action — Disablement or Compensable Injury Not Simultaneous with Accident — Limitation Applies after Resulting Injury Develops. — Where statute bars right to workmen's compensation unless claim is filed within 2 years after the injury, a claim for compensation filed within 2 years after a resulting injury develops or becomes apparent is timely filed, when the disablement or compensable injury does not occur simultaneously with the accident producing it. Burns' 1940 Replacement, § 40-1224. p. 597.
3. WORKMEN'S COMPENSATION — Nature and Grounds of Employer's Liability — Act Is Contractual — Effect. — Workmen's Compensation Act is contractual, and its provisions become a part of the contract of employment between the employer and the employee. p. 597.
4. WORKMEN'S COMPENSATION — Nature and Grounds of Employer's Liability — Retroactive Operation of Statutes — Limitation of Time for Filing Claim — Statutory Amendment Cannot Deprive Employee of Rights. — The right of an employee to recover compensation for injury resulting from a fall vested when he fell and where he filed his claim for compensation within 2 years "after injury" developed or became apparent, as authorized by statute in effect at time of fall, it was timely, although statute was amended, before filing of claim, so as to require filing of claims within 2 years "after occurrence of accident." Burns' 1940 Replacement (1947 Supp.), § 40-1224. p. 598.
5. CONSTITUTIONAL LAW — Construction, Operation and Enforcement of Constitutional Provisions — Determination of Constitutional Questions — Workmen's Compensation — Presumptions and Construction in Favor of Constitutionality. — The Appellate Court must apply the Workmen's Compensation statute so as to avoid any conflict with constitutional limitations, if such can be done. Burns' 1940 Replacement, § 40-1201 et seq. p. 598.
6. WORKMEN'S COMPENSATION — Appeal — Presentation Below of Grounds for Review — Evidence — Admissibility — Failure to Renew Objection before Full Industrial Board — No Question Presented for Review. — Where appellant assigned as error the admission of certain evidence by the hearing member, but failed to renew such objection at the hearing before the full Industrial Board, no question would be presented for review. p. 599.
7. WORKMEN'S COMPENSATION — Proceedings to Secure Compensation — Award — Sufficiency of Evidence to Sustain Award — Award Not Excessive. — Where an award in a proceeding to secure compensation was within the range of the evidence, which was considered without objection before the full Industrial Board, such award would, therefore, not be excessive. p. 599.
8. STATUTES — Construction — Retroactive Operation — Repealing Acts — Statutory Rights Taken Away — Vested Rights Not Affected. — Generally, where a right is given by statute, the repeal of the statute with no saving clause takes away such right of action in all cases that have not proceeded to final judgment, but it is not true when rights have vested under the law before its repeal. p. 599.
9. CONSTITUTIONAL LAW — Vested Rights and Remedies — Non-Existent in the Law — Legislative Changes Not Prohibited by Constitution — Cannot Impair Obligation of Contracts. — There are no vested rights in the law generally, nor in legal remedies, and hence changes in them by the legislature do not fall within the constitutional inhibition, unless they are of such a character as to materially affect the obligation of contracts. p. 599.
10. CONSTITUTIONAL LAW — Obligation of Contracts — Limitation of Actions — Statute Cannot Shorten Time for Filing an Action So As To Destroy Remedy. — A change in the time for filing actions to enforce rights arising out of contract does not impair the obligation of a contract, but the legislature cannot, without offending the constitution, shorten the time for filing an action so as to destroy or abolish every means for enforcing a contractual obligation. p. 600.
11. WORKMEN'S COMPENSATION — Nature and Grounds of Employer's Liability — Retroactive Operation of Statutes — Limitation of Time for Filing Claim — Amendment of Statute Did Not Cut-Off Claimant's Rights. — Where employee fell and was injured on March 7, 1944, but the injuries resulting therefrom did not develop or become apparent until November, 1947, and amendment of statute limiting time for filing claims took effect on April 1, 1947, such amendment did not cut off right to file a claim for compensation after the latter date. Burns' 1940 Replacement, § 40-1224. p. 600.
12. WORKMEN'S COMPENSATION — Nature and Grounds of Employer's Liability — Amendment and Repeal of Statutes — Construction and Operation. — Amendment of Workmen's Compensation Act concerning the limitation of time for filing claims governs all cases where the "occurrence of the accident" follows the effective date of such amendment. Burns' 1940 Replacement (1947 Supp.), § 40-1224. p. 600.
From the Industrial Board of Indiana.
Proceedings under the Workmen's Compensation Act by E.H. Harrington, claimant, against Railway Express Agency, employer, to recover workmen's compensation. From an award in favor of claimant, the employer appeals.
Affirmed, with statutory 5% penalty. By the court in banc.
On Petition for Rehearing. Petition denied.
Church Chester, of Elkhart, for appellant.
Henry L. Humrichouser, of South Bend, for appellee.
On March 7, 1944, the appellee accidentally fell and injured his knee while about his duties for the appellant. It was not immediately disabling and he continued to work until November 24, 1947, when the injury became disabling and he submitted to the first of two operations. On March 11, 1948, he returned to work. He filed his application for compensation on August 5, 1948. The Board found that he had sustained a 28% permanent partial impairment to his leg as a whole, and was entitled to compensation therefor.
The first question presented is whether the application was timely filed.
The limitation of time for the filing of a claim under the Workmen's Compensation Act is a condition precedent to the right to maintain the action. It affects the right and not the 1. remedy. It is not to be regarded merely as a statute of limitations. It is a condition attached to the right to recover, and the burden of proving the claim was filed within the statutory period rests with the claimant. Keser v. U.S.S. Lead Refinery (1928), 88 Ind. App. 246, 163 N.E. 621; 78 A.L.R. 1294.
On March 7, 1944, the day the appellee fell, § 24 of the Act, being Burns' 1940 Replacement, § 40-1224, read as follows: "The right to compensation under this act shall be forever barred unless within two (2) years after the injury, . . . a claim for compensation thereunder shall be filed with the industrial board." (Emphasis supplied).
In construing the word "injury" in that section, this court has consistently held that when the disablement or compensable injury does not occur simultaneously with the accident producing 2. it, a claim for compensation filed within two years after the resulting injury develops, or becomes apparent, is timely filed. See i.e. International Detrola Corporation v. Hoffman (1947), 224 Ind. 613, 70 N.E.2d 844; S.G. Taylor Chain Co. v. Marianowski (1932), 95 Ind. App. 120, 182 N.E. 584; Muehlhausen Spring Co. v. Szewczyk (1937), 104 Ind. App. 161, 8 N.E.2d 104. It thus appears that under the law as it stood at the time the appellee fell, the claim in this case was seasonably filed.
In the session of 1947, § 24 was amended, so that on August 5, 1948, the date upon which appellee filed his application, it read as follows: "The right to compensation under this act shall be forever barred unless within two (2) years after the occurrence of the accident, . . . a claim for compensation thereunder shall be filed with the industrial board." Burns' 1940 Replacement (1947 Supp.), § 40-1224. (Emphasis supplied).
It seems apparent that the appellee's cause was well grounded and timely filed unless it had been cut off by the amendment of 1947.
We have many times held that the Act is contractual, and its provisions become a part of the contract of employment between the employer and the employee. Carl Hagenbeck, etc., Shows 3. Co. v. Leppert (1917), 66 Ind. App. 261, 117 N.E. 531; Collwell v. Bedford Stone, etc., Co. (1920), 73 Ind. App. 344, 126 N.E. 439; Rogers v. Rogers (1919), 70 Ind. App. 659, 122 N.E. 778; Johns Manville, Inc. v. Thrane (1923), 80 Ind. App. 432, 141 N.E. 229.
Under his contract of employment the appellee was lawfully entitled, at the time he fell, to receive compensation if a compensable injury resulted therefrom, even though it took 4. several years for a compensable injury to develop, for the appellee could still recover therefor upon filing his application within two years after the injury had developed and become apparent. Assuming a resulting injury, his right to recover compensation vested when he fell, and the rights and liabilities of the parties were fixed by the law then in effect.
It is our duty to apply the statute so as to avoid any conflict with constitutional limitations if such can be done. To permit legislation enacted after the appellee fell to deprive him 5. of compensation would be to strike down a vested, substantive right. Moreover, it would result in distrust, uncertainty and confusion. It would deprive the appellee of that to which he is justly entitled and would unjustly enrich the appellant. We are convinced the legislature did not intend such a result.
The conclusion reached is supported, we think, by Collwell v. Bedford Stone, etc., Co., supra, and Riggs v. Lehigh Portland Cement Co. (1921), 76 Ind. App. 308, 131 N.E. 231. See also Central Indiana R. Co. v. Davis, Admx. (1922), 78 Ind. App. 341, 132 N.E. 611. We have carefully considered Standard Acc. Ins. Co. v. Miller (1948), 170 F.2d 495, upon which the appellant strongly relies, and find nothing in that case which persuades us to the contrary.
The appellant asserts error in the admission of certain evidence. Appellant's objection thereto, made to the hearing member, was not renewed at the hearing before the full 6. board. Therefore, no question is presented. Hayes v. Joseph E. Seagram Co. (1944), 222 Ind. 130, 52 N.E.2d 356; Deszancsity v. Oliver Corporation (1948), 118 Ind. App. 504, 81 N.E.2d 703.
The award is within the range of the evidence considered 7. without objection by the full board, and is therefore not excessive.
Award affirmed, with statutory 5% penalty.
Wiltrout, P.J., not participating.
NOTE. — Reported in 88 N.E.2d 175.
ON PETITION FOR REHEARING
In its petition for rehearing the appellant says that where a right is given by statute, the repeal of the statute with no saving clause takes away such right of action in all 8, 9. cases that have not proceeded to final judgment. That is generally true, but it is not true when rights have vested under the law before its repeal. The Board of Comm'rs of St. Joseph County v. Ruckman (1877), 57 Ind. 96. As said in Rupert v. Martz (1888), 116 Ind. 72, 18 N.E. 381, "There are no vested rights in the law generally, nor in legal remedies, and hence changes in them by the legislature do not fall within the constitutional inhibition, unless they are of such a character as to materially affect the obligation of contracts." (Emphasis supplied). As stated in our original opinion, we think we are dealing here with a contractual relationship under which a right had vested in the appellee.
But the appellant says that, even so, a change in the time for filing actions to enforce rights arising out of contract does not impair the obligation of a contract. That also is 10. generally true, but the legislature cannot, without offending the constitution, shorten the time for filing an action so as to destroy or abolish every means for enforcing a contractual obligation. Davis v. Rupe et al. (1888), 114 Ind. 588, 17 N.E. 163; Sansberry v. Hughes (1910), 174 Ind. 638, 92 N.E. 783.
In this case the amendment to § 24 took effect April 1, 1947. The appellee had fallen on March 7, 1944. The injuries resulting from the fall did not develop or become apparent until 11. November 1947. To say, as contended for by the appellant, that § 24 as amended cut off the appellee's right to file a claim for compensation, would be to completely destroy the appellee's remedy, leaving him without remedy of any kind. As said in our original opinion, it is our duty to apply the statute so as to avoid any conflict with constitutional limitations, if such can be done.
Our decision will not, as claimed by the appellant, permit any employee who began his employment prior to April 1, 1947, to claim compensation at any date in the future for any 12. resulting injury received while on the same job. Sec. 24 as amended governs all cases where the "occurrence of the accident" follows that date. We think that is what the legislature intended. See 59 C.J., Statutes, § 696, p. 1171.
We have made no effort to exhaust the subject. The cases above referred to were cited in appellant's brief on petition for rehearing. Those cases, and the others therein cited seem to us to support our original opinion, and so the petition for rehearing is denied.
So ordered.
Wiltrout, J., not participating.
Note. — Petition for Rehearing reported in 88 N.E.2d 915.