Swift Company v. Neal

Stevenson, J. This is a second appeal of this case. Our opinion in the first appeal is reported in 106 Ind. App. 139, 18 N. E. (2d) 491. The facts as disclosed by the record are fully set out in our former opinion and it is not necessary to repeat *314 them here. It is sufficient to say that the appellee received an injury to his eye on the 26th day of June, 1936, for which injury an award of compensation was entered by the Industrial Board of Indiana on April 15, 1937. This award was a conditional award which allowed compensation for a period of seventy-five weeks based on a fifty per cent permanent impairment to the sight of the appellee’s eye. It was further based on the condition that the appellant would offer and the appellee would accept a surgical operation which would reduce his then present impairment of eighty per cent of vision to the fifty per cent on which compensation was allowed. It was a part of this order that the Industrial Board should maintain continuing jurisdiction of the cause until the matter could finally be adjusted. The appellee did not accept the surgical operation at the time of the award but oh April 1, 1938, he filed his application for a review of this award in which he alleged that his impairment had increased since the date of the award and that he was willing to accept the surgical operation for the removal of the cataract from his eye. On this petition the Industrial Board made an order under date of August 6, 1938, to the effect that the appellant should offer the appellee the surgical operation for the removal of the cataract and, if accepted, the same should be paid for by the appellant and jurisdiction was expressly retained for the purpose of a final determination of -the amount of impairment to his vision. It was from this order that the appellant appealed to this court and this order was affirmed. Swift & Company v. Neal, supra. Following the affirmance of this case, the Industrial Board, on April 10, 1939, reset this case for hearing. On June 9, 1939, the appellant filed a motion to dismiss the proceedings, which motion was overruled. On the *315 16th day of September, 1939, the full Industrial Board entered an order against the appellant by which the appellant was required to furnish the appellee a surgical operation for the removal of the cataract in the appellee’s right eye. It was. further ordered that if the appellant should not offer such operation within thirty days then the appellee should be awarded compensation at the rate of $10.80 per week for 150 weeks, credit to be given for the 75 weeks compensation already paid. It is from this order that the appellant has again appealed, assigning as error that the award of the Industrial Board is contrary to law. The appellant contends that the Industrial Board of Indiana had no jurisdiction to make this award for the reason that the same was not made within one year from the termination of the compensation period fixed in the original award as required by § 45 of the Workmen’s Compensation Act; §40-1410, Burns’ 1933. The appellant contends that after the expiration of one year from the 10th day of December, 1937, the end of the compensation period fixed in the first award, the board was without jurisdiction to make any order with reference to a change in the appellee’s condition. We find ourselves unable to agree with the appellant’s contentions. The action of the Industrial Board by its order of August 6, 1938, was a conditional order by the terms of which the appellant was given an opportunity to furnish the appellee with a surgical operation. Continuing jurisdiction was expressly retained by this order for the obvious purpose of ascertaining whether or not the appellant would exercise this option, and for the further express purpose of determining what, if any, loss of vision the appellee has sustained by reason of said injury. After such award was affirmed, the Industrial Board was advised by the appellee of the *316 fact that the appellant had not seen fit to offer him the surgical operation. He accordingly asked that the board complete its work by a final award on his petition filed April 1, 1938, in which he alleged that his impairment had increased. This the board has done by its order of September 16, 1939. This award was entirely within the jurisdiction and power of the Industrial Board so to make. It was invoked by the petition filed April 1, 1938, and predicated thereon. The statute does not require that awards of the Industrial Board should all be entered within one year from the termination of the compensation period fixed in the original award. The only limitation fixed by statute is that no application for a modification of an original award shall be filed after the expiration of one year from the termination of such compensation period. § 40-1410, Burns’ 1933. The appellant is in error in asserting that the action of the Industrial Board was upon its own motion. Its action was predicated upon the petition of the appellee filed April 1, 1938, supplemented by information obtained from appellee’s letter under date of April 6, 1939, to the effect that the appellant had failed to exercise his right to offer the appellee a surgical operation. The appellant contends that the Industrial Board had no authority to order a surgical operation at its expense after the lapse of 90 days from the date of the injury. While this is true, yet as we have repeatedly said in this case, this order was a conditional one by which the appellant was not absolutely bound. Such conditional orders are frequently found in judicial and other proceedings. City of East Chicago v. Gilbert (1915), 59 Ind. App. 613, 108 N. E. 29, 109 N. E. 404; Union Traction Company v. Cameron (1927), 85 Ind. App. 629, 155 N. E. 265. *317 The award of the Industrial Board is affirmed and in view of the long delay occasioned by two appeals, we feel that the statutory penalty of ten per cent should be added to the award and it is so ordered. Award affirmed. Dudine, J., dissenting with opinion. Bridwell, P. J., dissents. NOTE. — Reported in 25 N. E. (2d) 451.