¶1I agree with the majority’s construction of Section 43-3-4 in that it allows a reopening of the case for the purpose of awarding compensation for permanent disability which did not exist at the time of the first hearing. As the court correctly points out, the nature and effect of an injury are in many instances subject to change. An injury which at first appears to have caused only temporary disability may later develop into damage of a permanent nature. It was to take care of such a contingency that the Board was given continuing jurisdiction over a claim for a period of three years after the injury.
¶2But I disagree with the court’s decision not to determine what I consider to be the principal issue in the case: whether Section 43-3-22
¶3At the first hearing in November 1957 there was evidence that Collier had incurred some permanent partial disability. In his report of October 31, 1956 Dr. Brighton stated that Collier had suffered from a bursitis of the right elbow and a muscular strain of the lower back, and that he was then disabled 20% in the use of his back and 25% in the use of his right elbow. On October 31, 1957 Dr. Harsha reported that Collier had “moderately advanced degenerative and traumatic arthritis to his lumbar spine”, and that the injury “accelerated his arthritic status so that it is now an asymptomatic state.” He concluded that Collier had a permanent partial disability rating, related to the accident of September 1956, in the amount of 30% of the body as a whole related to- the back, and 20% to the right elbow.
¶4At the conclusion of this hearing the Board found that “The evidence fails to indicate any permanent partial disability due to the injury of August 20, 1956”. The court has construed this as meaning the Board merely found that Collier, up to the time of the first hearing, had suffered no permanent loss in earning capacity. In the light of evidence before the Board, I cannot see that such an interpretation of the decision is justified. It means, in effect, that the court has ignored the words “due to the injury of August 20, 1956”, and has read the Board’s findings as saying only that “The evidence fails to indicate any permanent partial disability.” But there was in fact evidence “indicating” such disability. Logically, then, the Board must have had in mind not that there was no such disability at all, but that there was none attributable to the 1956 injury. To me this has only one meaning: that there was no causal connection between the injury of August 20, 1956 and the permanent partial disability which was indicated by the evidence produced at the first hearing.
¶5On Collier’s petition for modification of the award, the Board reopened the case and conducted another hearing in February 1960. In its order and award of February 29 it concluded that “as a result of the accident of August 20, 1956 applicant has incurred a 25% permanent partial disability.” Implicit here was the finding that a causal connection did exist between Collier’s accidental injury and his condition of permanent disability. This involved nothing more than a reconsideration of the factual question that had already been decided adversely to Collier’s conténtions in 1957.
¶6The main question, then, with which we are faced is whether the Board under Section 43-3-4 has the authority to redetermine questions of fact. I submit it does not. Under Section 43-3-22 the award is “conclusive and binding as to all questions of fact”, unless tested in a court proceeding commenced within 30 days. If this language has any meaning at all, one is forced to the conclusion that once the factual question of causality between injury and disability has been decided, and no appeal has been taken, the Board is thereafter foreclosed from reconsidering that same question and reversing itself at a subsequent hearing.
¶7It is my opinion, therefore, that the judgment should be reversed and the case remanded with directions to the superior court to vacate the Board’s award and to enter judgment for the appellants.
¶8. Section 43-3-22 A.C.L.A.1949 provides in part that “An award by the full Board shall be conclusive and binding as to all questions of fact; but either party to the dispute, within thirty days from the date of such award, if the award is not in accordance with law, may bring injunction proceedings, mandatory or otherwise, against the Industrial Board, to suspend or set aside, in whole or in part, such order or award.”
¶9, Suryan v. Alaska Industrial Bd., 12 Alaska 571 (D.Alaska 1950); Weymer v. Industrial Comm., 404 Ill. 271, 88 N.E.2d 841 (1949).
¶10. 2 Larson, Workmen’s Compensation Law § 81.32, at 333 (1952).