Christopher H. Cross
Miriam A. Rich
ATTORNEY FOR APPELLEE
Christopher H. Cross
Miriam A. Rich
We granted transfer to consider the applicability of the Journey's Account Statute (the "Statute") to claims presented to the Worker's Compensation Board (the "Board") under the Worker's Compensation Act. We hold that such claims are not subject to the Statute.
limitations. See, e.g., Ullom v. Midland Industries, Inc., 663 F. Supp. 491 (S.D. Ind. 1987).
The Journey's Account Statute is not limited to causes of action that existed at common law. As Cox points out, the Journey's Account Statute has been applied to revive actions that have lapsed under the provisions of several statutory schemes. These include the Medical Malpractice Act, Vesolowski, 520 N.E.2d at 433; the Wrongful Death Act, City of Evansville v. Moore, 563 N.E.2d 113 (Ind. 1990); the Will Contest Statute, Willman v. Railing, 571 N.E.2d 590 (Ind. Ct. App. 1991); and the Products Liability Act, Ullom, 663 F. Supp. at 491. In Vesolowski, for example, the parents of an injured child brought a timely medical malpractice action on the child's behalf in Illinois. The court dismissed the suit for lack of personal jurisdiction over the defendant. After the statute of limitations on medical malpractice actions had expired, the parents refiled their daughter's action in Indiana, also with new claims on their own behalf. This Court held that because the original action was timely filed and not dismissed on the merits, the Journey's Account Statute applied and saved the daughter's action. Vesolowski, 520 N.E.2d at 435-36. The daughter's "new action" was a "continuation of the first." However, the new claims asserted by the parents were not preserved because they were not a part of the original action.
The principles underlying Vesolowski control disposition of the current case. Both the medical malpractice and worker's compensation statutes contain substantive and procedural limitations. But unlike the Worker's Compensation Act, medical malpractice creates or modifies a right that, once initiated, takes the form of a lawsuit brought in a court of law. The same is true of each of the other statutory causes of action cited by Cox. A
worker's compensation claim, however, cannot be brought in any forum other than the
Board, and conversely the Board has no jurisdiction over general legal claims. More
importantly, the Journey's Account Statute preserves only those claims that are "a
continuation of the first" action. In each of the cases cited by Cox the elements of the cause
of action asserted in the second "action" were the same as those in the first. In contrast, the
elements of a worker's compensation claim are different from those of any remedy available
in a court. Unlike the tort lawsuit that Cox initiated, there is no requirement of intentional
wrongdoing or even fault in a compensation claim. Ind. Code § 22-3-2-2 (1991) (employer
shall pay for "personal injury or death by accident arising out of and in the course of
employment"). Indeed, if the elements of a worker's compensation claim are met, it is
usually fatal to a court case. Mannon v. Howmet Transp. Serv., 645 N.E.2d 1135 (Ind. Ct.
App. 1995) (Worker's Compensation Act provides exclusive remedy for recovery of personal
injuries arising out of employment and in the course of employment.). In sum, Cox's
worker's compensation claim is not a "new action" because it is not an action presented
before a court. Nor can it be a "continuation of the first" action because the two claims are
substantively different. Accordingly, the Board correctly determined that the Journey's
Account Statute does not apply.
Newnam Foundry Co. Inc., 271 Ind. 422, 393 N.E.2d 163 (1979). In Wawrinchak, the court
distinguished between a general statute of limitations, which may be waived, and a
"nonclaim" statute.See footnote
Wawrinchak concluded that the Worker's Compensation Act was a
nonclaim statute and that the period for filing a claim under that act may not be extended by
"the disability, fraud or misconduct of the parties" nor may the "time to act . . . be waived
by the parties or lengthened by the court." Id. at 400. Cox argues, and the Court of Appeals
agreed, that this Court's decision in Gayheart undermined Wawrinchak's hard line against
flexibility in the two year filing requirement for worker's compensation claims. As the Court
of Appeals noted, Gayheart held that "when a party was fraudulently induced to forgo the
timely filing of an application for modification of his worker's compensation award, the
applicable limitation period was tolled at the time the fraud was perpetrated." Cox, 667
N.E.2d at 217. From this, Cox argues there is precedent for court intervention to extend time
limits required under the Worker's Compensation Act.
However, our decision today is not grounded on the structure of the Worker's Compensation Act as a nonclaim statute. Nor is the delay in this case attributable to any action of the defendant. Rather our decision turns on the construction of the Journey's Account Statute. Gayheart did not involve the Journey's Account Statute and so tells us nothing about whether the Statute applies to worker's compensation claims. Because a
worker's compensation claim is not an "action" that may be considered as "a continuation
of the first," the Journey's Account Statute does not apply regardless of how the limitation
period built into the statute is characterized.
be a significant burden on the employer. AAC was alerted to Cox's lawsuit, and the
preparations necessary to mount a defense -- investigation, location of witnesses, discovery --
presumably largely included those needed to defend against a worker's compensation claim.
But if Cox had first filed an unsuccessful worker's compensation claim and then, up to five
years later in reliance on the Journey's Account Statute, sued AAC for an intentional tort,
the potential of unfairness to the employer is significant. The employer would for several
years believe itself faced with a statutorily defined financial exposure and the need to offer
proof on limited issues. The employer's devotion of effort and expense to the defense would
be guarded by that belief. It is fundamentally unfair to convert the proceeding into a general
tort lawsuit years after the event.
Finally, nothing prohibits an employee from filing a claim with the Board and initiating a lawsuit concurrently, although administrative proceedings have been described as serving "only to complicate resolution of the matter." Tribbett v. Toy Mor Industries, Inc., 471 N.E.2d 332, 334 (Ind. Ct. App. 1984). If there were a need to do so, Cox certainly could have done that in this case. He knew one year before the two year window had expired that AAC disputed the jurisdiction of the court to hear the lawsuit. He and his attorney also were both familiar with the two year filing requirement. The result in one proceeding may operate as res judicata in the second if the first results in a disposition "on the merits," Riverview Health Care v. Wright, 524 N.E.2d 321, 323 (Ind. Ct. App. 1988), but that is a difficulty faced by any plaintiff seeking to pursue concurrent remedies.
SHEPARD, C.J., and DICKSON and SELBY, JJ., concur.
SULLIVAN, J., dissents, believing this case was properly resolved by the Court of Appeals. Cox v. American Aggregates Corp., 667 N.E.2d 215 (Ind. Ct. App. 1996).
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