DISSENTING OPINION I cannot agree with the opinion of the court in this case. The Industrial Board of Indiana found for the appellee on its special answer raising *Page 419 the question of the jurisdiction of the Industrial Board to hear and determine the issues raised by the appellant's application submitted on Form No. 14. After hearing the evidence, they found that the plaintiff's total disability ended on October 11, 1936. They made no finding on the question of permanent partial impairment which might have been properly presented on their application Form No. 14, which was filed on July 30, 1938. The appellant had a right to file at any time within two years from the date of the original injury a claim for permanent partial impairment and this he did on Form No. 14, which he filed on July 30, 1938. Briggs Indiana Corporation v. Davis (1939), ante 177, 23 N.E.2d 285.
I accordingly cannot agree with the statement in the majority opinion that "this was not an application for an original award and was not so treated by either the board or the parties". The finding of the Industrial Board to the effect that the plaintiff's total disability has ended and did end as of October 11, 1936, did not constitute a finding on the question of permanent partial impairment. Eureka Coal Co. v. Melcho (1927), 85 Ind. App. 552, 154 N.E. 774; Inman v. Carl FurstCo. (1930), 92 Ind. App. 17, 174 N.E. 96; Briggs IndianaCorporation v. Davis, supra.
This question therefore has not been passed upon by the Industrial Board and the appellant was and is entitled to have the same determined. The approval by the Industrial Board of the agreement filed by the parties on December 29, 1936, which showed that compensation would be paid from the 9th day of August, 1936, until terminated in accordance with the provisions of the compensation law did not constitute an adjudication of the period of disability. Neither did the filing of the receipt, which showed disability to *Page 420 have ended on the 11th day of October, 1936, constitute such an adjudication.
There is accordingly no foundation, in my opinion, for the finding of the Industrial Board that:
". . . all of the questions raised by plaintiff's application Form No. 9 as amended, heretofore filed on August 16, 1938, were adjudicated by Form No. 12 agreement entered into between the plaintiff and the defendant on December 18, 1936, and approved by the Industrial Board on December 31, 1936."
The only agreement which the Industrial Board approved was that the appellant was entitled to the payment of compensation "at the rate of $9.68 per week beginning on August 9, 1936," and to continue "during temporary total disability, not exceeding the period fixed by law". The filing of the receipt in which the appellant recites that his disability and impairment has terminated added nothing to the award entered on that date.
It is evident therefore that the Industrial Board was in error when it found that more than one year had expired since the last date of payment of compensation under the agreement approved by the Industrial Board on December 31, 1936, as there is nothing in the record which shows that they approved any last payment. It is true that the Industrial Board may have considered the receipt signed by the appellant on December 18, 1936 as sufficient evidence upon which to conclude that all disability and all impairment terminated on October 11, 1936, but their finding covers only total disability and says nothing on the question of impairment. It was accordingly the duty of the board to find either for or against the appellant on this issue. This duty cannot be avoided by the application of the statute of limitations, as they *Page 421 apparently did, by finding for the appellee on its special answer raising the question of jurisdiction. Sec. 45 of the Workmen's Compensation Act which deals with the time for filing application for review provides that:
"The board shall not make any such modification upon its own motion, nor shall any application therefor be filed by either party after the expiration of one year from the termination of the compensation period fixed in the original award, made either by agreement or upon hearing."
It will be noted that the limitation period of one year begins to run from the termination of the compensation period "fixed in the original award". If, therefore, the termination of the compensation period is not fixed in the original award, there is no basis for the computation of the limitation period. If the case of Miles v. Indiana Service Corporation (1933),97 Ind. App. 400, 185 N.E. 460, announces the principle that the Industrial Board of Indiana may, upon a hearing, find that the compensation period ended more than a year prior to the date of the filing of the application for a review of the award, and after such finding, may conclude that they are without jurisdiction to hear the matter, then, in my opinion, the case ofMiles v. Indiana Service Corporation, supra, does not correctly interpret the statute, and should be overruled. Apparently, there is some doubt as to this contention for the Appellate Court in the case of Grant Coal Mining Company v.Coleman (1934), 98 Ind. App. 560, 187 N.E. 692, in discussing this contention with reference to the holding in the Miles case said (p. 565):
"That contention is not the law and Miles v. Indiana Service Corporation does not support it. . . . . It does not hold . . . that an application for *Page 422 modification of an award cannot be filed more than one year after the period of disability has ceased."
At any rate, it is my opinion that the statute of limitations does not begin to run except in cases where the compensation period has been fixed in the original award. This statute was passed for the benefit of the employer and if he desires to obtain the benefit of it, it would impose no hardship upon him to obtain a fixing of the compensation period if the same can be done at the time the original award is entered.
In the case at bar, it would have entailed very little time and trouble for the appellee to have presented to the board the facts contained in the receipt and to have obtained from the board a fixation of the compensation period as recited therein. Having failed to obtain this fixation, the appellee has deprived himself of the benefit of the statute. The Industrial Board was accordingly without authority to find that they were without jurisdiction in this case.
It is my opinion that the award of the Industrial Board should be reversed.