Swift Co. v. Neal , 106 Ind. App. 139 ( 1939 )

DISSENTING OPINION. As is indicated by the opinion of the majority, this is an appeal from an award of the Industrial Board which is based upon appellee's application for review of a previous award on account of a change in conditions. The application for review alleged that the previous award granted compensation for a permanent partial impairment and alleged further "that said permanent partial impairment has increased since the date of said award. . . ."

The Industrial Board, in its finding of April 1, 1938, found facts as stated in the majority opinion and found further as follows: "against the plaintiff on his allegation that said permanent partial impairment has increased since the date of said (first) award. . . ."

In Jackson Hill Coal, etc., Co. v. Gregson (1925),84 Ind. App. 170, 172, 150 N.E. 398, this court said:

"The expression `change in conditions,' as used in the section (Sec. 37 of the Indiana Workmen's Compensation Act of 1919) has reference to physical condition of the injured employee." To the same effect generally see Morgan v. Wooley (1937), 103 Ind. App. 242, 6 N.E.2d 717.

In Indianapolis, etc., Tube Co. v. Surface (1926),86 Ind. App. 55, 59, 155 N.E. 835, this court said:

"The undisputed evidence shows there has been no change in appellee's (the injured employee's) condition since the award which he seeks to review was made and the board so found." (My italics.)

That case, like the instant case, was an appeal from an order increasing the amount of an award previously made which order was based on an application for review on account of a "change in conditions." This court reversed the latter award on the grounds that the evidence failed to show a "change in condition."

It is clear that the majority opinion does not hold that there was a change in the physical condition of appellee since the first award.

Two cases are cited in the majority opinion in support of a statement therein that a "change in conditions" does not necessarily mean a change in the physical condition of the injured employee, but the opinion is not based upon suchproposition.

The opinion is based primarily on reasoning stated as follows (ante p. 144):

"The Industrial Board in the original award must have anticipated that in all probability an operation would eventually be necessary to give the appellee the relief he was entitled to under the law. They accordingly were not willing to approve the agreement of the parties, with respect to the compensation as submitted, for it appeared conclusively that the appellee was suffering from an eighty per cent impairment of the vision in his right eye and that he was accepting an award on the basis of fifty per cent impairment for the reason that at that time he did not desire an operation. They must have believed that he was entitled at that time (at time of first award) to an award based upon a fifty per cent impairment plus the surgical operation which would have reduced the impairment from eighty per cent to fifty per cent. The Industrial Board accordingly stated in its original order that `this order shall not be conclusive upon the plaintiff except for the number of weeks and percentage of impairment herein stated if plaintiff shall accept the medical and surgical services proffered by the defendant for the removal of the cataract from the plaintiff's right eye.' In other words, the Industrial Board imposed conditions in the original award leaving the way open for the appellee to accept the operation if he so desired and (which conditions provided that) only in the event of his continued refusal was the order to become binding upon him." (My italics.)

Such reasoning is necessarily based upon an assumption that the Industrial Board was authorized to render an award which, reserving the right of either party to appeal therefrom, was absolutely binding upon appellant, but not absolutely binding upon appellee; which bound appellant absolutely, but bound appellee conditionally only. Such assumption is not founded in law.

Such reasoning is also necessarily based upon the assumption that a proceeding to review an award on account of a change in conditions is, in its nature, a proceeding supplementary to an award, to determine whether or not the award should be modified. Such assumption is not founded in law. A proceeding to review an award on account of a change in conditions is not in its nature a proceeding supplementary to the award sought to be reviewed. In such proceedings ". . . the original award stands as an adjudication upon all matters in dispute up to the time suchaward was made, and neither party may thereafter be heard to say that such award was wrong in any respect, or that in any subsequent hearing evidence is proper to show that either the injury or disability was greater or less than that indicated bysuch award." (My italics.) Pedlow v. Swartz Electric Co. (1918), 68 Ind. App. 400, 405, 120 N.E. 603.

Whether or not there has been a "change in conditions" in a given cause is a question of fact to be determined in the first instance by the Industrial Board. It is a fact which is essential to sustain an award which increases a previous award on account of a "change in conditions." The burden of proving such fact in the instant case was upon appellee. The Industrial Board did not find in the instant case that there was a "change in conditions." The failure of the Industrial Board to find such fact is equivalent to a finding that there was no "change in conditions." See Lukich v. West Clinton Coal Co. (1937),104 Ind. App. 73, 10 N.E.2d 302, and numerous authorities there cited.

There is in my opinion a complete lack of evidence to show a "change of conditions" within the meaning of said term as used in Sec. 45 of the Workmen's Compensation Act. The only thing, if anything, which the evidence shows, that changed since the first award was made, was appellee's mind as to whether or not he would accept the medical services. That does not constitute a "change in conditions." If it were held that such fact would constitute "a change in conditions" the employer's liability to have an award increased on account of a "change in conditions" would be dependent upon the wishes of the employee.

I cannot follow the reasoning in the majority opinion on the question of the authority of the Industrial Board to order a surgical operation at the expense of appellant more than two years after the injury complained of occurred. To say the least the order is final and absolute as to appellant to the extent that it requires appellant to offer the surgical services within thirty days and requires him to pay for the same, and for the necessary medical, hospital and nurse services incident thereto if said surgical services are accepted by appellee "within said thirty days."

I think the award should be reversed with instructions that the Industrial Board enter an award that appellee recover nothing by his application for review of an award on account of a change in conditions.