Dezomits v. Consolidated Paper Co. , 315 Mich. 273 ( 1946 )

On August 2, 1940, plaintiff Frank Dezomits sustained an accidental injury arising out of and in the course of his employment by defendant Consolidated Paper Company. An award of compensation of $18 per week from November 10, 1940, until further order of the department, was entered on December 18, 1941. Dezomits received compensation until February 10, 1945, and since that date no payments have been made to him. On May 18, 1945, defendant filed a petition to stop or reduce compensation on the grounds that Dezomits had made a full or partial recovery and was receiving wages in excess of those which he was paid at the time of his injury.

The deputy commissioner denied defendant's petition to stop because Dezomits had not been paid or tendered compensation "to within 15 days of the time" of filing the petition. The award entered by the deputy commissioner on October 12, 1945, however, included the statement that plaintiff was entitled to receive compensation in the sum of $18 per week for "total disability" from the 11th day of February, 1945.

Both the deputy commissioner and the department were correct in denying the petition because of the language of Rule No. 8 (a) of the department of labor and industry, effective February 1, 1945, which reads:

"Whenever payment of compensation is made pursuant to an award of a deputy member or an order of the compensation commission, payments may not be stopped or diminished except by award of a deputy member or order of the commission. No proceedings shall be commenced to stop or reduce compensation payments unless the compensation provided in the award or order is paid or tendered to within 15 days of the time such proceeding is commenced."

However, they were in error in redetermining the date from which total disability compensation should be paid. This was tantamount to a finding that Dezomits was totally disabled on that date. Such finding would be res judicata of his physical condition as of February 11, 1945, when that issue was not considered. Markey v. S.S. Peter Paul's Parish, 281 Mich. 292,301. Both parties are entitled to a hearing on the question of Dezomits' present physical condition, and neither the deputy commissioner nor the department may decide an issue which was injected on their own motions. Deadwyler v. Consolidated PaperCo., 260 Mich. 130. See, also, Hayward v. Kalamazoo StoveCo., 290 Mich. 610.

The award should be corrected to conform to the conclusion of the department, in the light of the sole issue considered by it. The date of February 11, 1945, should be deleted and that of the original award, viz., November 10, 1940, substituted.

The award of December 6, 1945, is vacated and the matter is remanded for the entry of a corrected award without prejudice to further action within the provisions of the workmen's compensation act. Glavin v. Michigan StateHighway Department, 269 Mich. 672. Plaintiff not having filed a brief, no costs are allowed.

BUTZEL, C.J., and CARR, SHARPE, BOYLES, REID, and NORTH, JJ., concurred. STARR, J., took no part in the decision of this case.