DISSENTING OPINION. I must respectfully dissent from the opinion of the majority of the court in this case.
It was the duty of appellee upon the affirmance of the award of the Industrial Board by this court on May 20, 1925, to pay to appellant his compensation from November 11, 1924, to the date of such affirmance, and it was then its privilege to file its application for a change of award on account of a change of condition. It did not take this course however, but waited until November 5, 1925, before filing its application for change of award because of change of condition, at which time it appears by a stipulation in the record it had paid to appellant but $346.50.
It was the duty of appellee to pay appellant compensation fixed by the Industrial Board until the original award was changed, or it filed its application for such a change, but instead of so doing appellee presumed in effect to usurp the functions of the Industrial Board by changing the award and by refusing to pay appellant for the time that he was employed at light work in excess of $24.
Appellee was without authority to make this change.
In the case of Lambert v. Powers (1921), 76 Ind. App. 77, 131 N.E. 420, this court said that the employer was not entitled to consideration unless it had paid to the employee the compensation due him under the award sought to be changed, up to the time of the filing of the petition for such change. While the record in that case presented facts showing inexcusable defaults on the part of the employer in making the payment due to the employee, generally speaking the principle there announced should be followed. The award of the Industrial Board unappealed from, or affirmed on appeal, should be respected by the parties, and its mandates obeyed until it is modified by a proper proceeding before *Page 129 the board. I am not ready to say that any modification of an award of the Industrial Board should, in the absence of fraud, apply to a time prior to the date of filing the application from such modification, or the date of the modification by the Industrial Board upon its own initiative.