Bruce v. Stutz Motor Car Co. of America

*261 Dausman, J. In determining whether or not there has been a change in conditions, the inquiry must necessarily relate to a definite period of time. That period is the time which has elapsed since the last preceding adjudication—that is to say, since the conditions were last officially determined. The compensation agreement has not been approved by the Industrial Board, and therefore has not become an award. It follows that the petition for a review of “the award” on account of a change in conditions, was premature. There was no award to review. Acts 1919 p. 158, § 8020c2 Burns' Supp. 1921, § 9490 Burns 1926; Pedlow v. Swartz Electric Co. (1918), 68 Ind. App. 400, 120 N. E. 603; Indianapolis Bleaching Co. v. Morgan (1921), 75 Ind. App. 672, 129 N. E. 644. The spirit of our compensation law is that total disability is to be determined primarily by reference to the kind of work the employee was doing at the time of the injury. It is also the spirit of the compensation law that compensation for total disability shall continue until the employee is able to resume, at full wages, work of the same kind and character as that in which he was engaged at the time of the injury. Artman’s Manual, p. 145. That proposition is subject to the qualification stated in section 32 of the Compensation Act. Acts 1915 p. 392, §8020pl Burns’ Supp. 1921, §9477 Burns 1926. If the injured workman is able to do work of a different character and thereby earn some wages, without injury to himself, then it is his duty *262 to accept that kind of employment when procured for him; and if he refuses employment suitable to his capacity, his compensation shall cease during the time he declines the employment. That means that if the employer is of the opinion that, in truth, the employee is able to do work of a different character, and desires to diminish, on that basis, the amount of compensation for which he is liable, it is his privilege to procure for the workman employment of such a character as in his judgment is suitable to the workman’s capacity. No order of the Industrial Board is necessary to confer that privilege upon the employer. The law does that. In that respect, there is nothing for the board to do until employment has actually been procured and refused. Should a dispute arise as to whether the employment thus procured is suitable to the workman’s capacity, if he have any capacity, it will be the duty of the board to decide the controversy when properly presented. It follows that all the board has done and all it has attempted to do with respect to this feature is premature—mere speculation. No employment had been procured, and none refused- That entire controversy is purely imaginary. There was nothing legitimately before the board under §32, supra. The conclusion we have reached makes it unnecessary to consider the third contention. The award is reversed and the Industrial Board is directed to dismiss the petition, at the costs of the appellee.