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08/18/87 SEARS ROEBUCK & CO. v. MICHAEL E. MURPHY

August 18, 1987.

SEARS ROEBUCK & CO., AND ALLSTATE INSURANCE CO., APPELLANTS, DEFENDANTS BELOW,
v.
MICHAEL E. MURPHY, SR., APPELLEE, PLAINTIFF BELOW



Staton, J. Garrard, P. J., and Conover, J., concur.

Author: Staton

Opinion ON PETITION FOR REHEARING

STATON, J.

Sears petition for rehearing of our opinion at 508 N.E.2d 825.

On appeal, Sears contested Murphy's workmen's compensation award. We determined that Murphy's injury arose "out of" his employment at Sears, thereby entitling him to temporary total disability payments and to statutory medical expenses, but not to a permanent partial impairment award.

Because Provident, a non-party insurance carrier, had paid eighty percent (80%) of Murphy's medical expenses while litigation was pending, the Industrial Board ordered Sears to reimburse Provident the amounts it had paid. We held that this was error, and we remanded, directing the Board to make specific findings regarding what statutory medical expenses had been paid by Provident and the amounts of those payments. We further directed the Board to enter an order and to award those amounts to Murphy.

Sears now contends that our holding is in error because Murphy no longer owes anyone for his medical expenses and because such an award would result in a double recovery for Murphy.[Footnote 1] Sears argues that, in essence, we are determining Murphy's liability to Provident and that under Inland Steel v. Almodovar (1977) 172 Ind. App. 556, 361 N.E.2d 181, trans. denied, and Rockwell International v. Byrd (1986), Ind.App., 498 N.E.2d 1033, such a determination lies beyond the jurisdiction of the Board and this Court.

However, Sears misconstrues our opinion. Our opinion was not premised upon our concern that Provident may at some point seek reimbursement from Murphy. Rather, it was premised upon Sear's liability to Murphy under the Workmen's Compensation Act, Ind. Code 22-3-1-1-et seq.

IC 22-3-3-4 provides: . . . [T]he employer shall furnish or cause to be furnished, free of charge to the employee, an attending physician for the treatment of his injuries, and in addition thereto such surgical, hospital and nursing services and supplies as the attending physician or the industrial board may deem necessary . . . .[Footnote 2]

Indeed Inland , supra, and Rockwell, supra, are consistent with our holding. In Inland, the Board awarded medical compensation to the plaintiff, but did not reduce the award by the amount of payments already made by by a non-party insurance company; this award was affirmed on appeal despite the result -- a double recovery for plaintiff.[Footnote 3]

In Rockwell, the employer claimed it was entitled to credit for payments made to an employee by another insurance company under a non-work related sickness and accident insurance policy.[Footnote 4]

The Court held that the Board is without jurisdiction to consider any form of employer credit against workmen's compensation benefits for payments made by someone other than the employer. Id. at 1040.

Sears is concerned that by awarding Murphy the statutory medical expenses[Footnote 5] paid by Provident, Murphy will receive an "unowed, unjustified windfall." However, in Jenkins v. Pullman Standard Car Mfg. Co. (1957), 127 Ind. App. 173, 139 N.E.2d 566, the Court stated:

". . . Should the [employer] be required to reimburse a third party, a stranger to this litigation, who voluntarily paid medical bills incurred by the appellant as a result of his injury? By the great weight of authority in actions against tort-feasors an injured person is entitled to recover for medical services rendered him even if gratuitous, or paid for by a third party, on the theory that, while such services or payment is a gift for his benefit, it is one of the elements of his injury and it is no concern of the tort-feasor that he has benefited by such gift. [Citation omitted.] It would seem at first blush that the elements of legal recovery, having in mind the liberal purposes of the Workmen's Compensation Act, should ...


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