Sweet v. Eddy Paper Corp.

Plaintiff Ray Sweet, then in the employ of defendant Eddy Paper Corporation, was injured in the course of his employment on August 17, 1931. An agreement was entered into based upon his then average weekly wage of $28.62, whereby he was to receive $18 per week as compensation for total disability, and this agreement was approved by the department of labor and industry. Compensation was paid at the rate of $18 per week until August 28, 1932, when, after a petition was filed by defendant to stop or reduce compensation, the rate was reduced to $11.52 per week. The award entered at that time by the deputy commissioner reads:

"said deputy commissioner * * * doth find, determine and adjudge that said plaintiff * * * is entitled to receive and recover compensation from said defendant Eddy Paper Corporation and the Michigan Mutual Liability Company in the sum of $11.52 a week for a period of total disability from the 28th day of August, 1932."

No appeal was taken from this award. Prior to the expiration of the 500 weeks within which plaintiff might seek further compensation on a basis of changed condition, he instituted proceedings on January 27, 1941, in which he sought further compensation claiming total disability since August 28, 1932. This petition was denied by the deputy commissioner and plaintiff appealed to the department.

It was argued then, as it is argued now, that plaintiff was bound by the unappealed award which reduced his payments fortotal disability to $11.52 per week. The department held, however, that the medical testimony produced by plaintiff established that plaintiff had been totally disabled, without any earning capacity whatever, since at least January, 1933, and stated that, in its opinion, the deputy commissioner "erroneously reduced plaintiff's compensation from $18 to $11.52 per week in August, 1932."

In discussing the former award of the deputy, the department stated:

"The words ``total disability' as used in that award are meaningless. As the approved agreement had previously determined that plaintiff was entitled to $18 per week for total disability, the award of compensation at the rate of $11.52 per week could only have been based on a finding of partial disability. That award was an adjudication that plaintiff was partially disabled."

The department also said that "medical testimony not only discloses that plaintiff's physical condition has changed for the worse since January, 1933, but further that since that date he has been totally disabled without any earning capacity whatsoever. Both of these conditions have developed since the unappealed award of the deputy commissioner finding that plaintiff was partially disabled. We find that plaintiff since January 1, 1933, has been totally disabled."

The finding of fact that plaintiff's physical condition had changed for the worse is conclusive. 2 Comp. Laws 1929, § 8451 (Stat. Ann. § 17.186). A retroactive award based upon such a finding is proper. Ledward v. Public Welfare Board of Flint,298 Mich. 351.

Defendants contend, however, that the unappealed award of August 28, 1932, was for total disability and is res judicata. Some evidence was produced by defendants in support of their contention that the rate of compensation was lowered in the award of 1932 to make that award correspond with the then prevailing wage scale and was not based on a finding of partial disability. The modification of the rate of compensation on such a ground was improper. Roxbury v. Weidman Lumber Co., 268 Mich. 596. Defendants nevertheless contend that the unappealed 1932 award is final and binding and cannot be reopened by the department, and that the remedy, if any, is in a court of equity. Defendants cite authorities which, in general, support the contention that an unappealed award is final and binding.

Defendants' contention as to the finality of an unappealed award proves too much. When the 1931 settlement agreement was approved by the department it became, in effect, an award by the department. Richards v. Rogers Boiler Burner Co., 252 Mich. 52; Glavin v. Michigan State Highway Dept., 269 Mich. 672; and Roe v. Daily Record, 273 Mich. 5. The approved agreement having the force of an award, defendants' arguments as to finality are equally applicable to that approved agreement. The agreement being final, the department was without jurisdiction to modify the rate of compensation by the 1932 award except upon proof of a change of physical condition.

Applying defendants' contention, both the approved agreement of 1931 and the 1932 award were for total disability; and since, according to defendants, there was no change in plaintiff's physical condition, the department was wholly without jurisdiction when it entered the 1932 award. Burley v. CentralPaper Co., 221 Mich. 595; Righi v. Robert Gage Coal Co.,269 Mich. 46. See, also, Fawcett v. Department of Labor andIndustry, 282 Mich. 489. An award made where the department is without jurisdiction is void.

Plaintiff is the only party in position to complain that the department erred in holding that the award of 1932 was for partial rather than total disability. If the 1932 award was for partial disability, the present decision of the department is correct and should be affirmed. If the 1932 award was for total disability, it is void. In either case, the award of 1941 should be affirmed except as hereinafter stated.

In view of the foregoing, it is unnecessary for us to decide whether or not the 1932 award was in fact for partial disability.

Plaintiff's petition was filed January 27, 1941, and the award of the department of labor and industry orders payments "for total disability at the rate of $18 per week from January 1, 1933, until the end of the 500-week period," and "that defendants are entitled to a credit of $11.52 for each weekly payment made since January 1, 1933."

This award covers a period of more than six years prior to the date of the filing of the petition. See Buzzn v. MunceyCartage Co., 248 Mich. 64; Hajduk v. Revere Copper Brass,Inc., 268 Mich. 220, and Weaver v. Antrim Iron Co.,274 Mich. 493.

The award of the department should be limited to a period of six years prior to the date of the filing of the petition, viz., January 27, 1935, and, as so modified, the award is affirmed, with costs to appellee.

The cause is remanded to the department for the entry of an award in conformity with this opinion.

CHANDLER, C.J., and NORTH, STARR, and BUTZEL, JJ., concurred with BUSHNELL, J.