DISSENTING OPINION The accident resulting in the injury to appellant's eye occurred on November 18, 1941. As a result the appellant had but 3.3% vision in the eye on May 19, 1942. On April 28, 1945, nearly three years after discovering that fact, the appellant filed his application for compensation for loss of the eye. The board denied compensation because the application was filed too late.
Although this court is firmly committed to the doctrine that where the disablement or compensable injury does not occur simultaneously with the accident producing it the claim for compensation may be filed within two years after the resulting injury develops or becomes apparent, the claim is barred by the statute unless filed within the latter time. Any other holding would completely nullify the provisions of § 24 of the Act.
The burden of proving that the claim was filed within the statutory period is upon the claimant. In a very few jurisdictions it is held that the limitation of time for filing a claim under the Workmen's Compensation Act is not jurisdictional, but is a defense which may or may not be asserted by the defendant. The overwhelming weight of authority, however, is that the limitation of time for the filing of a claim under the Act is jurisdictional *Page 88 and is a condition precedent to the right to maintain the action. See Annotation 78 A.L.R. 1294. Indiana has taken its place with the majority, and it is the law in this state that the provision requiring the filing of a claim within two years is not an ordinary statute of limitations; that it affects the right and not the remedy; that the condition is one attached to the right to sue at all; and that the filing of a claim within time is an indispensable condition to the claimant's right to proceed.Keser v. U.S.S. Lead Refinery (1928), 88 Ind. App. 246,163 N.E. 621.
It was, therefore, incumbent upon the appellant to prove that, although the accident occurred more than two years before he filed his claim, his application was nevertheless timely filed; or in other words, to prove that the injury first became compensable within two years preceding the filing of his claim. This burden rested upon him. The appellee was not required to disprove it, nor to file any answer setting up such a defense.
An eye reduced to one-tenth of normal vision is an industrially blind eye. Eureka Coal Co. v. Melcho (1927),85 Ind. App. 552, 154 N.E. 774. It was industrially blind on May 19, 1942. For the purposes of the Compensation Act it could deteriorate no further. The appellant proved that the accident had produced such an eye more than two years before he filed his claim, and I believe he filed his claim too late.
It is true there is no evidence that the appellant did or did not wear glasses when he was examined on May 19, 1942. The evidence shows that he procured glasses, however, and I doubt whether the board could assume that he did not wear them. But any uncertainties in the evidence are chargeable to the appellant, for the burden of proof was upon him. If the board could *Page 89 assume he did not wear glasses when examined, it could not further assume that had he worn them they would have improved his vision to any particular percentage degree. If he did not wear glasses when examined on May 19, 1942, and if glasses would have increased his vision to one-tenth of normal on that date and thus have avoided a medical finding that his eye was then an industrially blind eye, it was incumbent upon him to produce such proof.
The board was entitled to believe that the appellant made the best case he could. It was required to decide the case according to the evidence before it. It had no right to indulge in speculation, guess or surmise. The only proof before the board was that the eye was industrially blind more than two years before the claim was filed, and I believe the board reached the only conclusion possible to it.
I, therefore, think the award should be affirmed.
Crumpacker, J., concurs.
NOTE. — Reported in 66 N.E.2d 625.