Hayward v. Kalamazoo Stove Co. , 290 Mich. 610 ( 1939 )

On rehearing we are of the opinion the award should be vacated.

In the application for rehearing the attorney general, at the request of the commissioners of the department of labor and industry, confessed error in the award and, as amicus curiae, joined in asking for a rehearing on the grounds that the decision is irreconcilable with the established law of this State and the doctrine of stare decisis.

Plaintiff was injured August 6, 1936, went back to somewhat lighter work December 15, 1936, and worked until November 13, 1937, when the plant shut down for want of business and all of the employees were let go; and at the time of the hearing the plant had not reopened.

The department found there had been no change in plaintiff's physical condition and held that it was not necessary for plaintiff to show a change in physical condition in order to have compensation reinstated and, therefore, treated the stoppage as no bar and reinstated an award.

That there may be no mistake about this we quote from the opinion of the department:

"Based on the fact that plaintiff admits his physical condition has not changed since the accident, defendant contends that the deputy commissioner's award was a proper one in that plaintiff had not sustained the burden of proving a change of physical condition lessening his earning capacity. We are unable to agree with such contention. * * * In the instant matter it is apparent that the final settlement receipt was executed not because plaintiff's physical condition had improved following the accident but to attempt his rehabilitation at lighter work. Such efforts should not be discouraged which would result if we determined under the instant facts that it was necessary for plaintiff to show a change of physical condition in order to have his compensation reinstated."

When plaintiff returned to work and signed the final settlement receipt, stating therein that he had fully recovered, and the receipt was approved by the department, there was an award of stoppage, determinative of rights as of that date and subsequent thereto unless and until such time, if any, there was a physical change for the worse affecting his ability to work.

In this jurisdiction the award stands in the nature ofres judicata, subject to change only by reason of subsequent intensified physical condition lessening earning capacity.

The award of the department was upon a finding of no change in plaintiff's physical condition and, therefore, contrary to our repeated holdings; and the opinion affirming the award overrules Anderson v. Ford Motor Co., 232 Mich. 500; Peet v.City Bakery Co., 238 Mich. 431; Kilgour v. Remington-Rand,Inc., 252 Mich. 657; McKay v. Jackson Tindle, Inc.,268 Mich. 452; Runnels v. Allied Engineers, Inc., 270 Mich. 153; Smith v. Pontiac Motor Car Co., 277 Mich. 652; Blust v.National Brewing Co., 285 Mich. 103. It, however, is in line with Mr. Justice POTTER'S dissents in Blust v. NationalBrewing Co., supra, and Dyer v. McQuistion, 273 Mich. 327.

In Butler v. Millman, 271 Mich. 113, we held, in line with all former opinions on the subject, that approval by the department of final settlement receipts has the force of an award and determines facts barring reopening, except upon proof of a change for the worse in physical condition.

We have uniformly held that the doctrine of res judicata applies to awards under the workmen's compensation act of this State. Lumbermen's Mutual Casualty Co. v. Bissell, 220 Mich. 352 (28 A.L.R. 874); American Life Ins. Co. v. Balmer,238 Mich. 580; Besonen v. Campbell, 243 Mich. 209;Hebert v. Ford Motor Co., 285 Mich. 607. See, also, Estate ofBeckwith v. Spooner, 183 Mich. 323 (Ann. Cas. 1916 E, 886);Levanen v. Seneca Copper Corp., 227 Mich. 592; Catina v.Hudson Motor Car Co., 272 Mich. 377.

In Nevels v. Walbridge Aldinger Co., 278 Mich. 214, we held:

"An award made upon oral stipulations before the department is binding on the parties. McKay v. Jackson Tindle, Inc.,268 Mich. 452. A binding award is res judicata even though it be erroneous. Ammond v. Muskegon Motor Specialties Co., 265 Mich. 211 . Consequently, the award of June 5, 1933, was resjudicata of plaintiff's right to compensation, was equivalent to an award stopping compensation and, upon plaintiff's present petition, it was necessary that he show a change of condition since June, 1933."

In remanding that case we said:

"Specifically, the department will determine the time and degree of change of physical condition since the award of June, 1933."

The award, approving the final settlement receipt, bars further action contrary thereto in the nature of a rehearing but leaves permissible a reopening of the case only upon a showing that a change in plaintiff's physical condition, resulting from the injury, is worse than it was at the former hearing and, therefore, a new cause for disability compensation is presented for an award.

There is no claim that the settlement receipt was obtained by fraud and, if it were so claimed, the remedy is not with the department but in a court of equity.

In the former majority opinion it was stated:

"It is the adjudication of the department, and not plaintiff's testimony, which controls."

In this case the finding of the department was based on the testimony of plaintiff that there had been no change in his physical condition and, under such finding, there was an award by the department, termed a reinstatement, but, in fact and law, it was a rehearing and reversal of the award on the final settlement receipt.

If the award is affirmed the force and effect of an award upon a final settlement receipt expires with its announcement and entry, and our holding will constitute a departure from all our former decisions, will materially enlarge the powers of the department, eliminate any and all application of the doctrine of res judicata, and open the way for rehearings upon matters heretofore considered closed by uniform rulings of this court.

CHANDLER, J., concurred with WIEST, J.