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

On this rehearing the controlling issue as to plaintiff's right to further compensation, as awarded by the department, is whether his earning capacity was less when his present petition was filed than it was adjudicated to have been at the last preceding hearing, i. e., in December, 1936, when the parties filed a final settlement receipt which was approved by the department. The effect of the agreement of the parties upon a final settlement and its approval by the department is plainly stated in our opinion filed on the original hearing of this case. In part it reads:

"There is no doubt that the department of labor and industry at the time it approved the final settlement receipt, if it adjudicated anything, adjudicated that at that time plaintiff had fully recovered from his injuries. Otherwise, it had no right to stop compensation. It is the adjudication of the department, and not plaintiff's testimony, which controls."

Approximately a year later plaintiff filed his present petition; and beyond any question there is testimony sustaining the department's finding that plaintiff was then suffering disability due to his injury which arose out of and in the course of his employment with defendant. On such a record clearly plaintiff's earning capacity was less when his present petition was before the department than a year prior when (by approval of the settlement receipt) the department adjudicated he had fully recovered. Under such circumstances plaintiff was entitled to an award of compensation.

The character and force of the approved settlement receipt must be viewed in the light of the admitted fact that this is a rehabilitation case; and the law applicable to that type of case should be here applied. See Markey v. S.S. Peter Paul'sParish, 281 Mich. 292; DeTroyer v. Ernst Kern Co., 282 Mich. 689 . The department's finding recites:

"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."

Except the executed final receipt is approved by the department incident to attempted rehabilitation, it should be held final and conclusive on all parties concerned. But if it appears from the department's records or if on the hearing the department finds that the execution of the final settlement receipt and its approval was simply an attempt to rehabilitate and that such attempt has failed, the receipt in and of itself should not be held a bar to an award of compensation to an employee found to be entitled thereto.

For the reason hereinbefore indicated our former decision for affirmance should stand.

BUTZEL, C.J., and BUSHNELL, J., concurred with NORTH, J.