concurring, in result.
Appellant Prentoski has not demonstrated that the Board's dismissal of his Application for Adjustment of Claim alleging a Change of Condition was erroneous. For this reason, I concur in affirmance of the Board's determination. My concurrence, however, is not without a degree of concern with respect to the date which triggers the running of the applicable statute of limitations as to such modifications.
The triggering language as set forth in 1.C. § 22-3-8-27(c) is the "last day for which compensation was paid ...." (emphasis supplied). Thus, according to the statutory provision itself, any modification as to temporary total disability ("TTD") must be filed within two years of the last date for which TTD was paid. Any modification as to a permanent partial impairment ("PPI") rating must be filed within one year of the last date for which the impairment benefits were paid. Id.
Resolution of the issue of timeliness of an adjustment of claim application is rendered more difficult, however, because of the language used in various Indiana case precedents. For example Luz v. Hart Schaffner & Marx, 771 N.E.2d 1230 (Ind. Ct.App.2002), trans. denied, Halteman Swim Club v. Duguid, 757 N.E.2d 1017 (Ind.Ct.App.2001), and Berry v. Anaconda Corp., 534 N.E.2d 250 (Ind.Ct.App.1989), speak in terms of the day on which the last payment of compensation was made to the claimant rather than the last day of the period for which the compensation was paid. These cases and others like them would appear to emanate from (Gregg v. Sun Oil Co., 180 Ind.App. 379, 388 N.E.2d 588 (1979), trans. denied.
In Gregg this court was concerned with an application for medical expenses incurred and to be incurred after the claimant had received an original award. The decision of the court focused primarily upon the fact that the modification under the two-year limitation period was tied to the period for which compensation was paid under the original award. 180 Ind. App. at 388, 388 N.E.2d at 590. -The court noted that such "original award" language was not an additional limitation under the one-year statutory provision dealing with permanent partial impairment awards or payment of medical expenses.5 Id.
The court, however, shifted from its consideration of the statutory language Le., "the last day for which compensation was paid," to a statement that limited the filing of a modification to a period of one year "from the last day on which compensation was paid." Id. (emphasis supplied). Although the change from "for which" to "on which" may have been inadvertent in the Gregg opinion, that difference in language has been perpetuated in the later cases.
*104As to TTD payments, the payments are made for the period of the disability, and receipt of the payments therefore undoubtedly coincides with the period of the disability. See Luz, 771 N.E.2d at 1281-32. Therefore, the different phrasing as to the triggering date for the start of a modification application statute of limitation would not seem to create any practical problems.
However, as to PPI awards, the two dates could very well be different. - A claimant might be awarded compensation for a period of time (such as the eighteen-week period of compensation awarded for the PPI in this case) which could date from the date of injury, as the majority holds here. If, however, the available time for filing a change of condition application dates from the time the total amount due for PPI was paid to Prentoski, April 10, 2000, the filing deadline would be different.
The Halteman Swim Club case quotes the portion of Gregg which holds the statute of limitations begins to run "as of the last day on which compensation was paid." 757 N.E.2d at 1020 (quoting Gregg, 180 Ind.App. at 383, 388 N.E.2d at 590.) (emphasis supplied). Halteman Swim Club also relies heavily upon Berry, supra, as follows:
"In Berry v. Anacondo Corp., 534 N.E.2d 250 (Ind.Ct.App.1989), we again faced this issue in the context of whether the one year statute of limitation began to run from the date of the last benefit payment (either PPI or TTD) or from the date of the last medical expense payment. In affirming the Board's determination that the statute of limitations began to run as of the last date benefit payments were made, we stated, [tlhe Board's decision, therefore, is supported by Gregg"" Id. at 253.
Thus, I read Halteman Swim Club to make the time of receipt of a PPI payment the critical event regardless of the period for which the PPI was payable. In any event, although this court may appear to have rewritten the statute, in Berry the modification claim for additional medical expenses was filed approximately seven years after the last payment for PPI or TTD. Clearly, no matter what statute of limitations was used, or the period for which the compensation was paid, Berry filed too late.
In our case, Prentoski did not receive his PPI award and payment until April 10, 2000, when he received the lump sum $7800 check. Even though that payment may have been for the period of eighteen weeks beginning March 27, 1997, the payment itself was made much later. We thus seem to be focusing upon the precise language of the statute rather than the language used in the cases.
I note a further confusing aspect of our case. Prentoski, in his application, merely stated that he "needs benefits." Appellant's App. at 21. One must therefore assume that he has reference to a "need" for an increase in his impairment rating rather than a need for the payment of new medical expenses. This conclusion is reached from the clear implication of Berry that medical expenses paid or to be paid by an employer are not "benefits," nor are they "compensation" as contemplated by the time limitations of I.C. § 22-8-8-27.6 See 534 N.E.2d at 253.
In any event, it is Prentoski's burden to demonstrate that the Board's determination of untimely filing is erroneous. In other words, he must show that the modification application was in fact timely. He *105has not done so. The filing may have been timely if the two-year limitation for TTD modifications were involved, but as heretofore noted, Prentoski is not claiming a new period of temporary total disability as a result of his March 27, 1997 injury.
Prentoski seeks either a modification of his PPI rating or new medical expenses necessitated by his 14% impairment rating as awarded. No matter whether we look to the date upon which he received the PPI benefit payment, April 10, 2000, or the eighteen-week period "for which compensation was paid," beginning with the date of injury, March 27, 1997, Prentoski filed too late.
. The Gregg court therefore held that the Board might make an open-ended modification for newly determined and continuing medical expenses without any limitation of the period for which those medical expenses would be required to be paid by the employer, so long as the claimant's application for such increased or continuing medical expenses was filed within the one-year statutory limitation period.
. If we construe the time limitation to be from the date of the last payment, I agree that the last date for filing for increased PPI would be April 9, 2001, one year after April 10, 2000, when Prentoski received the $7800 PPI check.