Detroyer v. Ernst Kearn Co.
| Decision Date | 29 December 1937 |
| Docket Number | No. 116.,116. |
| Citation | 277 N.W. 199,282 Mich. 689 |
| Parties | DeTROYER v. ERNST KEARN CO. et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Department of Labor and Industry.
Proceeding by Bea DeTroyer, employee, to recover further compensation under the Workmen's Compensation Act for continuing disability resulting from injuries sustained, opposed by the Ernst Kearn Company, employer, and the St. Paul Mercury Indemnity Company, insurance carrier. From an award of compensation by the Department of Labor and Industry, the employer and insurance carrier appeal by a proceeding in the nature of certiorari.
Award affirmed.
Argued before the Entire Bench.
Kerr, Lacey & Scroggie, of Detroit, for appellants.
Dann & Atlas, of Detroit, for appellee.
Plaintiff, after receiving compensation for about four weeks under an approved agreement, signed a document on the form supplied by the department entitled, ‘Supplemental Agreement Suspending Further Payment of Compensation,’ in which there is contained a stipulation that if further disability from the injuries should thereafter develop, the agreement would not bar plaintiff's right to petition the department for such further and added compensation as she may be entitled to. Shortly after the agreement was approved of by the Department of Labor and Industry, plaintiff filed a petition asking for further compensation, alleging that she was still disabled and under the care of a doctor. Testimony was taken and compensation allowed. Defendants on appeal complain that plaintiff was not entitled to further compensation without alleging and proving a subsequent change in her physical condition showing a greater disability than existed at the time the agreement to suspend compensation was entered into.
The same question was presented in Miller v. City Ice & Fuel Co., 279 Mich. 592, 277 N.W. 196, handed down on May 21, 1937, wherein the majority opinion of the court held against defendants' contentions.
The award is affirmed, with costs to plaintiff.
In the former hearing in this case, we followed the decision in Miller v. City Ice & Fuel Co., 279 Mich. 592, 277 N.W. 196. Rehearings of both the Miller Case and of the instant case were granted. Certain other aspects of the contract involved in the controversy have been presented, and we modify the views thereof, heretofore expressed, but without changing the result. Plaintiff was awarded compensation for a compensable accident. She later signed an agreement suspending compensation, but thereafter, as the board found, she was still incapacitated. She was awarded further compensation without a showing of greater disability. The question resolves itself into whether or not an employee who has received compensation, the payment of which is later suspended by agreement, thereafter may be awarded further compensation without a showing of greater disability than that existing at the time of the execution of the suspension agreement. We are again asked to construe the agreement suspending compensation.
The pertinent provisions of the agreement are as follows:
‘And it is now agreed that in the opinion of all the parties hereto, that disability has ended, and that because thereof payment of all further compensation shall stand suspended from and after the 24th day of January, 1936.
‘It is further agreed that if further disability from such injuries shall hereafter develop, this agreement shall not bar the plaintiff's rights to petition the Department for such further and added compensation as he may be entitled to; that on the hearing of such petition the plaintiff shall bear the burden of proof, and the Department shall determine such petition according to the facts.’
It is claimed by defendant that the approval of an agreement of this nature is equivalent to approval of a final settlement receipt, in which event it would be necessary for the employee to show a change of condition in order to entitle her to further compensation. Plaintiff, however, contends that such a meaning would be contrary to the express terms of the agreement, which only provides for a ‘suspension’ of payments and states that it ‘shall not bar the plaintiff's rights * * * for such further and added compensation as she may be entitled to.’ The agreement itself is headed ‘Supplemental Agreement Suspending Further Payment of Compensation.’ It states that the form was furnished by the Department of Labor and Industry. It is not a trick agreement in any sense of the word. An employee, however, might be tricked by its wording if it is construed as a final settlement agreement. An employee is warned of the finality of a final settlement agreement by a statement in large letters on the form of such agreement as supplied by the department. No such...
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