Opinion
No. 18,024.
Filed October 17, 1950. Rehearing denied November 13, 1950. Transfer denied February 1, 1951.
1. WORKMEN'S COMPENSATION — Proceedings To Secure Compensation — Findings of Fact and Conclusions of Law — Findings Conclusive on Parties — No Right to Rehearing on Ultimate Facts. — In a proceeding to secure workmen's compensation, the finding of the Industrial Board on essential facts necessary to a money award is conclusive on the parties in the absence of an appeal, and an application for review or a modification must depend on a compensation or money award as a legal basis, so that the applicant has no right to be again heard on the essential ultimate facts necessary to be established which were adjudicated in the original award. Burns' 1940 Replacement, § 40-1410. p. 699.
2. WORKMEN'S COMPENSATION — Proceedings To Secure Compensation — Rehearing and New Trial — No Rehearing Upon Issues Which Have Been Determined. — The authority of the Industrial Board to correct clerical errors or mistakes of fact does not include the power to grant a new hearing at any time upon the essential necessary issues which have been determined. Burns' 1940 Replacement, § 40-1410. p. 699.
3. WORKMEN'S COMPENSATION — Proceedings To Secure Compensation — Rehearing and New Trial — Applications for Award on Same Accident and To Review for Mistake of Fact Properly Denied. — After a claim for workmen's compensation was denied by the full Industrial Board and the decision affirmed on appeal, it was not error for the Industrial Board to deny either the petition by the same claimant based on the same accident or his petition to review the first award because of a mistake of fact. p. 699.
From the Industrial Board of Indiana.
Proceeding by Dennis Deszancsity for compensation under the Workmen's Compensation Act, and also on an application by that claimant for a review of an earlier award denying compensation on a claim arising out of the same accident. From an award denying compensation and the application to review, claimant appeals.
Affirmed. By the court in banc.
Frank C. Olive and Thomas C. Batchelor, both of Indianapolis; and Milton A. Johnson, of South Bend, for appellant.
James V. Donadio; and Ross, McCord, Ice Miller (of counsel), both of Indianapolis, for appellee.
On January 10, 1947 appellant filed an action before the Industrial Board for workmen's compensation for injuries allegedly received in an accident arising out of and in the course of his employment by appellee. In that action both the hearing member and the Full Industrial Board found against appellant on the grounds that he did not sustain an accidental injury arising out of and in the course of employment. Appellant then appealed to this Court and on October 26, 1948 we affirmed the award of the Industrial Board. Deszancsity v. Oliver Corporation (1948), 118 Ind. App. 504, 81 N.E.2d 703.
Subsequently, on March 28, 1949, appellant filed with the Industrial Board another application for an award of compensation against appellee. This application claims the accident occurred on the same date alleged in his original application. In this application he asserts disability occurred on January 30, 1947, while in the first application he asserted it occurred the day of the accident. This application describes his injuries with more particularity than the first. On appellee's motion the hearing member dismissed this application. Appellant appealed to the full Board and also filed with said Board his application for a review of the first award because of a mistake of fact in that finding and award. In this petition appellant made substantially the same contention he made to this Court on his first appeal. The Full Board denied the second application for compensation and the petition to review its original award.
In the case of Smith v. Thompson Construction 1, 2. Company et al. (1946), 224 Ind. 565, 69 N.E.2d 16, our Supreme Court said:
"In our own State it has been held that the finding of the Board on the essential facts necessary to a money award is conclusive on the parties, in the absence of an appeal. It is further held that an application for review or modification under § 45 of the Act must depend on a compensation or money award as a legal basis, and under this section, the applicant has no right to again be heard on the essential ultimate facts necessary to be established and which have been adjudicated in the original award. Lukich v. West Clinton Coal Co. (1937), 104 Ind. App. 73, 10 N.E.2d 302. The Board found against the appellant on the essential primary facts and no authority to again try those primary facts has been granted by the Legislature.
"We do not believe that the grant of authority to correct clerical errors or mistakes of fact can be interpreted to mean that the Board may at any time grant a new hearing upon the essential necessary issues which have been determined. Section 40-1410, Burns' 1940 Replacement must be read along with all other sections of the statute."
On the first appeal in this case this Court affirmed the award of the Full Board denying appellant a money award. Therefore, on the authority of the above case the Full Board did not err 3. in denying appellant's petitions for an award and a review of its original award.
Award affirmed.
NOTE. — Reported in 94 N.E.2d 486.