C. & G. Potts & Co. v. Fortney

Royse, J. The sole question presented by this appeal is the construction, under the facts herein, of § 40-2205 (f), Burns’ 1940 Replacement. “No compensation shall be payable .for or on account of death resulting from any occupational disease unless death occurs within one (1) year after the date of disablement: Provided, That this paragraph shall not be a bar to compensation for death (a) where death occurs during the pendency of a claim filed by an employee within one (1) year after the date of disablement and which claim has not resulted in a decision or has resulted in a decision which is in process of review or appeal, or (b) where, by agreement filed or decision rendered, a compensable period of disability has been fixed and death occurs within one (1) year after the end of such fixed period, but in no event later than three hundred (300) weeks after the date of disablement.” *197 The facts are undisputed and may be briefly summarized as follows: Raymond Fortney, an employee of appellant, became disabled on June 17, 1942, from the occupational disease known as “silicosis-tuberculosis,” which arose out of and in the course of his employment. Thereafter, on October 7, 1942, “the Industrial Board of Indiana approved a compensation agreement made by said parties wherein the defendant (appellant) agreed to pay the plaintiff’s (appellee’s) decedent compensation at the rate of $16.50 per week from and including the 24th day of June, 1942, and to continue until terminated in accordance with the provisions of the Indiana Workmen’s Occupational Diseases Act.” Thereafter, on August 25, 1945, Raymond Fortney died and left surviving him his wife, the appellee herein, who was wholly dependent on him for support. Appellant denied liability for further payments of compensation after the death of said Raymond Fortney. Appellee thereafter filed her application for adjustment of her claim for compensation with the Industrial Board. This application was heard by a single member ■of the Board who found in favor of appellee. Upon proper application there was a review by the Full Board who also found in favor of appellee. The pertinent portion of its award is as follows: “IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED By the full Industrial Board of Indiana that there be awarded the plaintiff as against the defendant compensation at the rate of $16.50 per week beginning the 24th day of June, 1942, for a period not to exceed three hundred weeks, or until terminated in accordance with the provisions of the Indiana Occupational Diseases Act. “It is further ordered that all deferred payments of compensation be brought to date, paid in cash hnd in a lump sum. *198 “It is further ordered that the defendant be given credit for any and all payments of compensation heretofore p'aid to plaintiff’s decedent during his lifetime for his temporary total disability on account of said Occupational disease. “It is further ordered that in the event the statutory burial expenses in the sum of $150.00 for the said Raymond Fortney, deceased, has not been paid by the defendant, the defendant shall pay the said burial expenses.” Appellant earnestly contends the award of the Full Industrial Board is erroneous because Raymond Fortney died more than three years after his disablement commenced and that provisions (a) and (b) of the above quoted section are not applicable to the facts herein. It is agreed provision (a) has no application here. Appellant asserts the agreement between deceased and it fixed the beginning of the period of disability but did not fix the termination thereof, and therefore appellee does not come within the provision of the above quoted section of the statute. With this contention we do not agree. The agreement approved by the Industrial Board provided that compensation was to be paid “until terminated in accordance with the provisions of the Indiana Workmen’s Occupational Diseases Act.” We construe this to mean, compensation was to be paid to decedent for 300 weeks from the date disability commenced, unless sooner terminated under the provisions of the law, such as that referring to a change in condition, etc. This court, in the case of Continental Roll & Steel F’dry Co. v. Slocum (1942), 111 Ind. App. 438, 41 N. E. (2d) 635, held that an agreement practically identical to the one herein brought the appellee within this statute. There have been several sessions of the legislature since this decision and they *199 have not seen fit to change the law. This is some evidence of legislative approval of the construction we have placed on this question. The award is affirmed with the usual penalty. Crumpacker, C. J. — Dissents with opinion. Note. — Reported in 69 N. E. (2d) 752.