Indiana Law Review XVIII. Workmen^s Compensation John A. Rader* A. Assignment of Errors Counsel continue to disregard the requirement that a certified copy of an assignment of errors be included in the transcript on appeal.' The assignment need only state that "the award of the full board is contrary to law. . . ."^ The court may then review both the sufficiency of the findings of fact utilized to sustain the award and the sufficiency of the evidence to sustain the findings of fact.^ Dur- ing the survey period, the court of appeals has summarily disposed of two cases not containing this prerequisite by dismissing the appeals by memorandum "not for publication" opinions/ citing Slinkard v. Extruded Alloys.^ Although the statutory mandate has been firmly established^ and consistently enforced by the court with little hope of exception/ the court's practice of specifically referring to the inclusion of the assignment* has alerted few appellants in the survey period. B. Permanent Total Disability The court of appeals established the definition of permanent total disability in Perez v. United States Steel Corp.^ To establish permanent total disability, an injured workman must show "that he cannot carry on reasonable types of employments.''^° Necessarily, however, the ability to assume reasonable types of employment re- quires physical fitness, mental fitness, and availability of employ- ment opportunities." Superimposed on these factors is the per- *Member of the Indiana Bar. A.B., Indiana University, 1969; J.D., Indiana Univer- sity School of Law — Indianapolis, 1974. 'IND. Code § 22-3-4-8 (1976): Ind. R. App. P. 7.2(AK1). 'IND. Code § 22-3-4-8 (1976); see generally Penn-Dixie Steel Corp. v. Savage, 390 N.E.2d 203, 205 (Ind. Ct. App. 1979). Tenn-Dixie Steel Corp. v. Savage, 390 N.E.2d 203. 205 (Ind. Ct. App. 1979). 'See Ind. R. App. P. 15(A)(3). The author has personal knowledge of these cases since he has served as a single hearing judge for the Industrial Board since 1977. n50 Ind. App. 479. 277 N.E.2d 176 (1971). ^See Ind. Code § 22-3-4-8 (1976); see generally B. Small, Workmen's Compensa- tion Law of Indiana, § 12.14 (1950 & Supp. 1976). 'Means v. Self Material Handling Co., 157 Ind. App. 492, 300 N.E.2d 895 (1973). "See, e.g., Seagram & Sons v. Willis, 401 N.E.2d 87 (Ind. Ct. App. 1980); White v. Woolery Stone Co., 396 N.E.2d 137 (Ind. Ct. App. 1979). '359 N.E.2d 925. 927-28 (Ind. Ct. App. 1977). '"Id. at 927 (quoting B. Small, supra note 6, § 9.4) (emphasis in original). "359 N.E.2d at 928 (quoting B. Small, supra note 6, § 9.4). 571 572 INDIANA LAW REVIEW [Vol. 14:571 manency of the injury. Therefore, applicaiton of the definition re- mains unsettled'^ as each party presents medical evidence to demonstrate the claimant's condition. In White v. Wollery Stone Co.,^^ White underwent surgery to remove cartilage from his knee. He suffered a lengthy recuperation as a result of complications and sought a declaration by the In- dustrial Board that his injury resulted in permanent total disability. The Board disagreed, and found that the injuries resulted in a fifty percent permanent partial impairment of his left lower extremity.'^ The court of appeals affirmed, deferring to medical testimony which had established the extent of the claimant's injuries, the likelihood that the claimant could return to his old job, and the parameters which the claimant should follow in seeking employment.'^ In Penn—Dixie Steel Corp. v. Savage,^^ Savage suffered burns and a hernia in a work-related accident. After receiving temporary total disability benefits for approximately fifty-one weeks, he return- ed to work. Subsequently, he was unable to continue working because he experienced mental problems allegedly precipitated by the previous injury. The court of appeals affirmed the Board determination that Savage was 100% disabled.'^ In support of this finding, the Board relied on the testimony of Savage's wife and daughter concerning Savage's mental state.'* Moreover, the Board considered the psychiatrist's testimony that Savage's injury was "a significant emo- tional factor in his mental demise."'^ The psychiatrist also testified that Savage was totally disabled.^" The standard of review is clear. The reviewing court will not weight evidence and will only consider evidence tending to support the Board's decision.^' Thus, the Board's determination of permanent total disability, if based on sufficient evidence, will not be disturbed on appeal.^^ Moreover, although a finding of permanent partial im- '^Although findings by the Social Security Administration have been rejected by the Industrial Board as irrevelant, many of the same factors leading to a favorable determination there seem applicable to the present inquiry. See generally H. McCOR- MICK, Social Security Claims and Procedures (2d ed. 1978). "396 N.E.2d 137 (Ind. Ct. App. 1979). "Id. at 139. "Id. at 139-40. "390 N.E.2d 203 (Ind. Ct. App. 1979). "Id. at 204-05, 208. ''Id. at 207. ''Id. ^'White V. Woolery Stone Co., 396 N.E.2d at 140. '"Id. See Dennison v. Martin, Inc.. 395 N.E.2d 826. 828 (Ind. Ct. App. 1979); Penn- Dixie Steel Corp. v. Savage. 390 N.E.2d at 208. 1981] SURVEY-WORKMEN'S COMPENSATION 573 pairment does not exclude a finding of permanent total disability ,^^ when there is evidence of both, the Board's finding of only some degree of permanent partial impairment is sustainable.^* C. Liability for Contractor's Employees A little known provision of the Workmen's Compensation Act was discussed by the court of appeals in Indiana Bell Telphone Co. V. OwensP In that case, Indiana Bell hired an independent contrac- tor to complete utility construction for the telephone company. One of the contractor's employees, Owens, suffered a compensable injury while working on the project. The Industrial Board, relying on In- diana Code section 22-3-2-14,^" found Indiana Bell secondarily liable for the statutory benefits available to the employee. However, the court of appeals reversed and remanded the case to the Industrial Board because the Board's findings of fact were insufficient to show that Indiana Bell had actually contracted with Owens' employer. The statutory section upon which the Industrial Board relied^^ imposes upon those persons delineated therein, including a homeowner, the duty to verify that those with whom they contract carry compensation insurance on their employees.^* Similar provi- sions without dollar limitation apply for contractors who sublet any work.^^ Failure to exact a cetificate from the Industrial Board makes one liable to the same extent as the contractor.^" A right of subroga- tion exists against the contractor but this is seen as more illusory than real because exhaustion of the immediate employer's liability is required^' and the contractor not carrying insurance is often judgment-proof. More than one homeowner has been surprised to discover this provision. Furthermore, because homeowners' policies contain a standard exclusion for losses covered by workmen's com- pensation, the homeowner often incurs personal liability. Additional- ly, the certificate from the Board provides protection for only ten days.^^ Therefore, in addition to requesting a certificate from the 'Terez v. United States Steel Corp., 359 N.E.2d at 929. '^396 N.E.2d at 140. "399 N.E.2d 443 (Ind. Ct. App. 1980). ''IND. Code § 22-3-2-14 (1976). ^7d. The contract must exceed $500. ™M The Industrial Board's procedural rules require that each request for a cer- tificate be accompanied by a pre-addressed, stamped envelope. 630 Ind. Ad. Code § 1-1-37 (1979). ^'Sec Ind. Code § 22-3-2-14 (1976). Exhaustion of the immediate employer's liabil- ity is generally regarded as the return on execution unsatisfied. ^Ud. § 22-3-5-5. 574 INDIANA LAW REVIEW [Vol. 14:571 Board, anyone contracting for services should also request from the contractor a certificate of insurance, which provides for notification in the event of cancellation. Moreover, a homeowner should pur- chase a workmen's compensation contingency endorsement for his homeowner's policy. D. Tolling of Modification Period for Fraud In Gayheart v. Newnam Foundry Co.,^^ an employee filed a civil action for fraud against an employer and his insurer after the In- dustrial Board had dismissed the employee's claim for benefits under the Workmen's Compensation Act because the statute of limitations had expired. Based on his failure to exhaust ad- ministrative remedies and the res judicata effect of the original In- dustrial Board proceedings,'^* the trial court granted summary judg- ment against the employee in the fraud action. The court of appeals held that the doctrine of res judicata could not operate to prevent the trial court from addressing the issue of fraud since the In- dustrial Board had no jurisdiction to consider fraud as a ground for tolling the statute of limitations.^^ In vacating the court of appeals' decision, the supreme court held that the Board always has jurisdic- tion to determine whether a party was fraudulently induced into foregoing the filing of an application for modification under Indiana Code section 22-3-3-27.^'' Furthermore, the court held that if fraud were found, the modification time limitation would be tolled at the moment the fraud was perpetrated.^' Clearly, an employee would be protected by this expansion of the Board's jurisdiction. The opinion however, deals only with the limitation period for a modification of an award. Thus, the employer would also be protected because his compensation personnel, who would have knowledge of the occur- rence of an accident and surrounding circumstances, would be in charge of the file. Because the opinion is limited to modifications under Indiana Code section 22-3-3-27, absent some pronouncement, the general limitation period for the initial filing of claims found in Indiana Code section 22-3-3-3^* would be applicable as a nonclaim statute.^* Thus, where no weekly indemnity payments are made, claims should still ^'393 N.E.2d 163 (Ind. 1979). ''Id. at 165. ''Id. ''Id. at 166. ^'Id. "iND. Code § 22-3-3-3 (1976). ''See Wawrinchak v. United States Steel Corp., 148 Ind. App. 444. 267 N.E.2d 395 (1971). "A nonclaim statute creates a right of action and has inherent in it the denial of a right of action. It imposes a condition precedent — the time element which is a part of 1981] SURVEY-WORKMEN'S COMPENSATION 575 be filed within two years from the date of accident. However, in a modification action, the claimant should fully exercise the right to raise the fraud issue lest it be waived. Nevertheless, he may preserve an action at law for damages if the fraud caused him to forbear filing his claim in an original action. E. Retaliatory Discharge —Limitations The landmark case of Frampton v. Central Indiana Gas Co.*^ was revisited by the court of appeals in Scott v. Union Tank Car Co."' The supreme court in Frampton held that an employee who alleges that he was discharged in retaliation for filing a compensation claim stated a claim upon which relief could be granted. ""^ In Scott, an employee filed a suit against Union more than two years after his dismissal alleging that he had been discharged in retaliation for filing a workmen's compensation claim. The trial court dismissed the suit on the ground that it was barred by the two-year statute of limitations." A divided third district court of ap- peals also affirmed the dismissal. The court held that a claim alleg- ing retaliatory discharge is tortious in nature, and is therefore sub- ject to the two-year limitations."^ Judge Staton's lengthy dissent"^ characterized the employee's action as one of contract, and thus subject to the longer statute of limitations."^ He noted, however, that after the effective date of In- diana Code section 34-1-2-1.5, a two-year limitations period would be applicable."^ Thus, currently under both views, filing should occur within two years. F. Medical Malpractice In Stevens v. Kimmel^^ and in McLaughlin v. American Oil Co.,^^ the action itself." Id. at 451-52, 267 N.E.2d at 399. Furthermore, nonciaim statutes may not be extended "by the disability, fraud or misconduct of the parties," nor are they subject to waiver. Id. at 452, 267 N.E.2d at 400 (quoting Donnella v. Crady, 135 Ind. App. 60, 63, 185 N.E.2d 623, 625 (1962)). "260 Ind. 249, 297 N.E.2d 425 (1973). See generally B. Small, supra note 6, § 11.16 (Supp. 1976). ''402 N.E.2d 992 (Ind. Ct. App. 1980). "260 Ind. at 253, 297 N.E.2d at 428. "402 N.E.2d at 992. See Ind. Code § 22-3-3-3 (1976). 'M02 N.E.2d at 993. *'Id. at 993-97 (Staton, J., dissenting). "Ind. Code § 34-1-2-1 (1976). "402 N.E.2d at 994 n.3. Ind. Code § 34-1-2-1.5 (Supp. 1980) became effective Aug. 29, 1977. ^'394 N.E.2d 232 (Ind. Ct App. 1979). "391 N.E.2d 864 (Ind. Ct. App. 1979). 576 INDIANA LAW REVIEW [Vol. 14:571 the court adopted the reasoning found in Ross v. Schubert^" as ap- plicable to malpractice actions against company physicians. In Stevens, the plantiff suffered a work related injury and was treated by the company physician. Later, he filed a medical malpractice suit against Dr. Kimmel. Dr. Kimmel claimed that as company physician, he was a co-employee and, therefore, immune from suit. The Stevens court reiterated that the company physician is essentially an in- dependent contractor in relation to his patients; therefore, he cannot claim the "in the same employ" immunity found in Indiana Code sec- tion 22-3-2-13.^' In McLaughlin, the court also found that a company physician is not clothed with immunity from a medical malpractice suit.^^ However, the court held that McLaughlin's intentional tort action against his employer was improper. ^^ The court refused to accept McLaughlin's argument that because the act which caused his injury was intentional, not accidental, it was not within the purview of the Act.^^ Instead, the court held that the question was not whether the injury was accidental or intentional, but whether it was one arising out of and in the course of employment.^^ Finding that McLaughlin's injury was one arising out of and in the course of employment, the court limited him to the remedies provided by the Act.^^ It is ax- iomatic that the harmful effects of the treatment of a compensable injury are themselves compensable." G. Recovery Limitations Temporary employees from Manpower, Inc. were found to be employees of the firm utilizing Manpower's services in Fox v. Con- tract Beverage Packers, Inc.^^ Fox, a Manpower employee, received workmen's compensation benefits from Manpower's insurance car- rier for injuries he sustained while on assignment at Contract Beverages. Fox then brought a suit against Contract, alleging negligence. Fox claimed that his civil suit was appropriate, because Contract was not his employer. The trial court entered summary judgment against Fox, and the court of appeals affirmed.^^ The court ^"388 N.E.2d 623 (Ind. Ct. App. 1979). ='394 N.E.2d at 233. ='391 N.E.2d at 865. "Id. at 866. ''Id. ''Id. ''Id. "See generally Seagram & Sons, Inc. v. Willis, 401 N.E.2d 87 (Ind. Ct. App. 1980); B. Small, supra note 6, §§ 6.19, 8.48. =«398 N.E.2d 709 (Ind. Ct. App. 1980). "Id. at 710. 1981] SURVEY-WORKMEN'S COMPENSATION 577 reasoned that Contract and Manpower were joint employers of Fox, so that Fox was limited to recovery of workmen's compensation benefits."" Manpower's payment of the workmen's compensation benefits did not preclude this result, since joint employers are allow- ed to contract between themselves as to who carries workmen's compensation insurance."' As Fox's employer. Contract could also use the exclusivity provisions of the Act."^ H. Statutory Changes The 1980 Legislative Session produced an amendment"^ to the Township Poor Relief provisions, that a recipient performing work as a satisfaction of conditions of relief was covered by "IC 22-3," presumably referring to the Workmen's Compensation Act"^ and Oc- cupational Disease Act**^ rather than the older and substantially superseded Employer Liability Act."" Two statutory changes made in 1979 became effective during the survey period. The first change to the Workmen's Compensation Act was the increase in the average weekly wages considered in determining compensation benefits."' As of July 1, 1979, the average weekly wages were $195, producing a compensation benefit of $130; as of July 1, 1980, average weekly wages were $210, producing a compensation benefit of $140."* The statutory maximums were also increased to reflect the higher benefits."^ Similar changes were made in the Occupational Disease Act.'" The other change to the Workmen's Compensation Act involved the extension of the so-called "healing period" from 26 to 52 weeks for accidents occurring on or after July 1, 1979." Nevertheless, benefits for permanent partial impairment remain at seventy-five '"Id. at 712. *'IND. Code § 22-3-3-31 (1976). ''Id. § 22-3-2-6. ''Act of 1980, Pub. L. No. 94, 1980 Ind. Acts 1170 (amending Ind. Code § 12-2-1 (1976)). This amendment provides: "[A] recipient performing work under this chapter and the governmental unit for which he wori