¶1concurring.
¶2The Board did not aid our decision when, in The Additional Findings of December 17, 1980, it found that Coachmen “failed to show by sufficient credible evidence that [Yoder's] injury constituted a direct harm.. .. ” Such finding was obviously premised upon an erroneous assumption that it was Coachmen’s burden to prove that Yoder’s impairment was direct and that therefore I.C. 22-3-3-3 was the applicable statute. To the contrary, it was Yo-der’s burden to prove that his impairment was resultant rather than direct. Railway Express Agency v. Harrington (1949) 119 Ind.App. 593, 88 N.E.2d 175. Despite the unnecessary finding, however, the Board did find the affirmative fact that Yoder’s impairment was “later developed,” i. e., resultant.
¶3At first blush, Tom’s Chevrolet Sales v. Curtis (1958) 128 Ind.App. 201, 147 N.E.2d 571 would appear to support a conclusion that Yoder’s modification claim is not barred by I.C. 22-3-3-3. The Curtiscase holds that an existing permanent impairment is within the purview of I.C. 22-3-3-27 so long as it has not reached a quiescent state at the time of the original award. The holding however is not justified by Fashion Thimble Shoe Co. v. Withrow (1942) 110 Ind.App. 668, 40 N.E.2d 359, the only authority relied upon in Curtis. Nor is the Curtis holding validated by Pettiford v. United Department Stores (1935) 100 Ind. App. 471, 196 N.E. 342. I do not, therefore, base my concurrence upon the Curtiscase.
¶4*395The impairment is “resultant” (as that term is used in Pettiford) only if it does not exist in any degree at the time of the accident, or if existent, cannot be determined to be permanent. If the accident is the direct cause of an impairment it is not “resultant,” even though the impairment which exists at the time of the accident either increases in degree or lessens in degree, so long as the impairment which does exist is permanent in nature. In the latter instance, any modification in award must be sought within two years of the accident. Stated conversely, if there is some impairment at the time of the accident, but it has not been determined to be permanent, a claimant may seek modification pursuant to I.C. 22-3-3-27.
¶5When Dr. Feferman testified that he thought Yoder’s condition “could be improved” he was stating that the condition was not permanent and quiescent. A condition may improve or worsen only if it has previously existed. Dr. Feferman’s testimony clearly indicates the existence of an impairment but it does not compel a conclusion that the impairment could be determined to be permanent in nature at that time. It is the permanency of the impairment which triggers the limitation of I.C. 22-3-3-3.
¶6From the record before us, I am unable to conclude that, as a matter of law, the impairment which Yoder manifested when examined by Dr. Feferman was permanent. It is for that reason that I concur in the application of I.C. 22-3-3-27.