Dyer v. McQuistion , 273 Mich. 327 ( 1935 )

I cannot concur in the opinion of Mr. Justice POTTER.

In October, 1933, the department approved a settlement agreement between the parties and granted plaintiff's petition for a lump sum settlement thereunder, stating: "after due investigation and consideration of said petition and inquiry into the facts and circumstances of the case."

In January, 1934, upon plaintiff's petition for further compensation, the department found that, at the time of the approval of the lump sum settlement, plaintiff was totally disabled and should be permitted to collect compensation for total disability, and the amount paid, by virtue of supplemental agreement and lump sum settlement, should be treated as an advance payment, and awarded him $13.11 per week from December 23, 1933, less the amount paid under the lump-sum settlement.

The department assumed power to set aside its former award and adjudicate anew, without any change in the disability of plaintiff and, upon an express finding of no change. We quote the finding:

"And inasmuch as it is not seriously disputed that at the very time the lump sum settlement and supplemental agreement for 89 cents a week were entered into, the plaintiff was totally disabled, there is nothing further for the commission to decide."

If plaintiff was totally disabled when the department approved the lump sum settlement he was not worse three months later when the department vacated its former order and made the award at bar. Runnels v. Allied Engineers, Inc., 270 Mich. 153. Without such change the department had no power to review its former order. Weekly payments are subject to review upon change in degree of, or recovery from disability, but the department cannot otherwise review, reverse, vacate, ignore, repudiate or act anew upon matters once adjudicated.

In an opinion the department asserts jurisdiction by reason of a practice described as follows:

"Under the present practice, agreements to pay compensation, if regular upon their face and if they correspond to the report of compensable accident, are approved by the clerks of the department. Many thousands of cases of this character each year never reach the commission or any of the commissioners or deputy commissioners. Other agreements may be approved by one commissioner upon inquiry. None of the first class of orders, growing out of approved contracts, are based upon competent, legal evidence. The second class of so-called awards are, of course, made after a full inquiry upon the merits by legal evidence produced in formal hearing."

The statute tolerates no such practice, and approval by clerks, so permitted by the department, may not be treated by the department as of less effect than action by the department in, at least, an effort to comply with the statute.

In the instant case we have, as above mentioned, quoted from the findings of the department in approving and authorizing a lump sum payment, and such action cannot be laid to clerical workers.

The department also stated in an opinion:

"We believe the legislature intended by this section (2 Comp. Laws 1929, § 8453) to confer upon the commission or its deputy the right, upon formal hearing, to review payments fixed in an agreement upon which there has been no hearing held, and, if we are correct in this solution of the difficulty, then the commission has the right to review the payments provided for in the agreement of November 1, 1933, and paid through the order of the lump sum petition of the same date.

"We think the question has been definitely settled by the Supreme Court in the case of Norbut v. I. Stephenson Co.,217 Mich. 345."

The Norbut Case is not authority for the action of the department in this case. That case must not be extended beyond the issue there presented and decided. There the department found the injuries more serious than had at first been apprehended and awarded additional compensation. That was but saying that the disability had increased after approval of the agreement for compensation and a lump sum settlement, based thereon. Such is not the case at bar, for here the department found that total disability existed at the time the agreement for compensation and the lump sum settlement, based thereon, were approved and then, in effect, held that the former adjudication should not have been made because of total disability of plaintiff at that time and, therefore, vacated the same by way of a new award. Such was not review but mere substitution upon reconsideration as upon a rehearing.

The department may not grant or hold a rehearing.Anderson v. Ford Motor Co., 232 Mich. 500; Magnuson v. OliverIron Mining Co., 270 Mich. 482.

In order that there may be no misunderstanding of the scope of the decision in the Norbut Case we state that it was, and is, limited to review of conditions relative to disability arising after an approved award and not to accord review upon conditions existing at the time of a previous approved award.

Counsel for plaintiff ask for the adoption of the finding of the deputy commissioner of increased disability after the approval of the agreement and lump sum award. This would be contrary to the finding of the full department on appeal, and this we cannot do for we review the holding by the full department and must accept the facts as found by that department if there is any evidence in support thereof. There was evidence supporting the finding of total disability of plaintiff at the time of approval of the agreement and lump sum award. Plaintiff's discomfort may have increased after such award but the question is one of earning capacity and not of pain and suffering.

The award is vacated, with costs.

NORTH, FEAD, BUTZEL, and BUSHNELL, JJ., concurred with WIEST, J.