Wright v. Mitchell Brothers Co.

Defendant has appealed from an award of compensation made to plaintiff by the department of labor and industry. The accident involved in this appeal occurred October 25, 1918. Defendant employer filed two reports of the accident, the first was dated November 12, 1918, the second November 18, 1918. The parties filed an agreement for compensation for total disability at the rate of $9.09 per week to be paid for 20 weeks. This agreement was approved by the department November 23, 1918. Later a settlement receipt was filed. On April 2, 1919, a second agreement for compensation was filed with the department and approved. This was for compensation to "be paid at the rate of $9.09 per week during total disability." On September 6, 1919, a final report and settlement receipt were filed. From these it appears final payment of compensation was made to plaintiff July 10, 1919, and on that date plaintiff returned to work.

Nothing further was done in this compensation proceeding for nearly 15 years. On June 22, 1934, plaintiff filed a petition for further compensation. The deputy commissioner after hearing denied further compensation; but on review before the department compensation was awarded for total disability at $9.09 per week from May 9, 1932, until the further order of the department. From this award defendant has taken this appeal.

The settlement receipt of September 6, 1919, was not approved by the department. Until approved it was ineffective.Richards v. Rogers Boiler Burner Co., 252 Mich. 52. The so-called general order No. 30 was not an approval of this settlement receipt. Weaver v.Antrim Iron Co., 274 Mich. 493. It follows that when plaintiff filed this petition for further compensation he already had a valid award by virtue of the approved agreement of April 2, 1919. Under the circumstances the most the department could have done for plaintiff would have been to consider his petition as one for review of payments. Grant v. ChevroletMotor Co., 264 Mich. 510; Weaver v. Antrim Iron Co., supra. Plaintiff was not entitled to his second award for the same injury under the facts hereinbefore noted. Sampson v. MichiganCopper Brass Co., 274 Mich. 592. The department of labor and industry had no jurisdiction to make a second award under the circumstances. Gallup v. Western Board Paper Co., 252 Mich. 68.

If plaintiff is entitled to be paid any compensation by defendant he must obtain it under the terms of the approved agreement of April 2, 1919. That award was for total disability. The maximum period for which the department could award compensation for total disability was 500 weeks.^*

Throughout this proceeding the defense has been urged that plaintiff's alleged right to be paid further compensation was barred by the statute of limitations. We quote from defendant's answer:

"The defendant says that claimant, by failing to assert a right to further compensation by reason of change in condition from January 1, 1921, until October 26, 1934, for a period of 13 years, 9 months and 6 days, is barred by lapse of time to assert his alleged right for further compensation."

Under this record the only jurisdiction which the department had in the instant proceedings was to proceed as by way of review of payments and ascertain what amount, if any, plaintiff was entitled to receive under the award. We think the statute of limitations was sufficiently pleaded. It was specifically urged in the brief. This defense was made by defendant before the department as against plaintiff's claim for further compensation.

"Proceedings in court to enforce awards of the department of labor and industry would be barred by general statute of limitations where all compensation to which plaintiff might have been entitled had become due and payable more than six years before action was taken for its recovery (Comp. Laws 1929, §§ 8452, 13976)." Ardelian v. Ford Motor Co. (syllabus),272 Mich. 117.

"A hearing on a petition for further compensation after claimant has received maximum award under the workmen's compensation act for total disability amounts to a rehearing by the department which it has no power to grant or hold and its award to claimant made thereat must be vacated."Magnuson v. Oliver Iron Mining Co. (syllabus), 270 Mich. 482.

It is the general rule that this court in cases on appeal from the department of labor and industry will not consider any defense not raised before the department. Tinney v. City ofGrand Rapids, 274 Mich. 364. Nonetheless if, as in the instant case, the record discloses that the order of the department of labor and industry, from which the appeal is taken, is one which the department was without jurisdiction to make, this court must of its own motion take cognizance thereof.

For the reasons bereinbefore indicated the award entered will be vacated and the case remanded to the department of labor and industry for further proceedings in accordance herewith. Costs to appellant.

FEAD, WIEST, BUTZEL, BUSHNELL, EDWARD M. SHARPE, and TOY, JJ., concurred. POTTER, J., took no part in this decision.

^* See 2 Comp. Laws 1915, § 5439. — REPORTER.