Hayward v. Kalamazoo Stove Co.

• Citation: 288 N.W. 483,290 Mich. 610
• Decision Date: 09 November 1939
• Docket Number: No. 32.,32.
• Parties: HAYWARD v. KALAMAZOO STOVE CO. et al.
• Court: Michigan Supreme Court

290 Mich. 610

288 N.W. 483

HAYWARD

v.KALAMAZOO STOVE CO. et al.

No. 32.

Supreme Court of Michigan.

April 4, 1939.

Rehearing Granted Nov. 9, 1939.

Proceeding under the Workmen's Compensation Law by Charles Hayward, claimant, opposed by the Kalamazoo Stove Company, employer, and the American Mutual liability Insurance Company, insurer. To review an order of the Department of Labor and Industry granting award for total disability, the employer and insurer bring certiorari.

Affirmed.

WIEST and CHANDLER, JJ., dissenting.

Appeal from Department of Labor and Industry.

Argued before the Entire Bench.

Kelley, Sessions, Warner & Eger, of Lansing, for appellants.

Frank F. Ford and Edward J. Ryan, both of Kalamazoo, for appellee.

Shields, Ballard, Jennings & Taber, of Lansing, amici curiae.

Joseph Zwerdling, of Ann Arbor, for Michigan Federation of Labor.

Maurice Sugar, of Detroit (Joseph Zwerdling, of Ann Arbor, of counsel), for Michigan State Industrial Council.

Benjamin Marcus, of Detroit, for National Lawyers Guild.

L. J. Carey and Geo. J. Cooper, both of Detroit, for Michigan Mutual Liability Co.

POTTER, Justice.

Plaintiff, employed by defendant Kalamazoo Stove Company, on August 6, 1936, suffered an injury arising out of and in the course of his employment. By agreement, compensation was paid plaintiff for total disability to December 15, 1936, when he went back to work at light work, and December 18, 1936, signed a final settlement receipt in which it was stated he had fully recovered. This final settlement receipt was presented to and approved by the department of labor and industry and compensation stopped. November 23, 1937, plaintiff filed a petition pursuant to 2 Comp.Laws 1929, § 8453, providing for review of weekly payments at the request of the employee, asking for an award of compensation based on total disability. The department took testimony and found plaintiff was totally disabled and awarded him compensation at the rate of $6.40 a week during the period of partial disability from December 15, 1936, to June 15, 1937, and compensation at the rate of 80 cents a week during the period of partial disability from June 15, 1937, to November 13, 1937, and compensation at the rate of $18 a week during the period of total disability from November 13, 1937, and continuing until further order of the department. Defendants bring certiorari to review the order of the department of labor and industry.

Defendants contend the department had no jurisdiction to make the order complained of, that it may not reopen the award based upon approval of the final settlement receipt signed by plaintiff for the reason that he has not shown any change in condition; that the doctrine of res judicata applies to the award of the department. Appellee contends the approval of the final settlement receipt was an adjudication that on December 18, 1936, plaintiff had fully recovered; that plaintiff is not estopped from showing he was totally disabled at the time of his application for review of payments, and not estopped from showing what his real condition was at the time of the signing of the final settlement receipt; that plaintiff has sustained the burden of proof showing a change of condition; and that the final settlement receipt was signed, not because his physical condition had improved, but in an attempt at rehabilitation, and that it was not necessary for him to show a change in physical condition for the worse since the execution of the final settlement receipt in order to recover compensation.There is no doubt 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. Plaintiff claimed at the time he filed the petition to review payments he was totally disabled. Testimony was taken before the department of labor and industry and it so adjudicated. This is an adjudication of such a change of physical condition as is contemplated by the statute and fully sustains the award of the department.

The real fact is, that plaintiff, at the time he filed the settlement receipt, had not fully recovered from disability on account of his injury. He went back to work at different and lighter work than that at which he had been employed, in an attempt to rehabilitate himself,-to be self-supporting. He was paid approximately $21.60 a week instead of $31.20 a week.

Settlement receipts have been frequently before the court in cases where similan questions were involved. Hood v. Wyandotte Oil & Fat Co., 272 Mich. 190, 261 N.W. 295;MacDonald v. Great Lakes Steel Corp., 274 Mich. 701, 265 N.W. 776;Smith v. Pontiac Motor Car Co., 277 Mich. 652, 270 N.W. 172;Markey v. S. S. Peter & Paul's Parish, 281 Mich. 292, 274 N.W. 797;DeTroyer v. Ernst Kern Co., 282 Mich. 689, 277 N.W. 199.

Under the rule of these cases, the award of the department was warranted, and is affirmed, with costs.

BUTZEL, C. J., and SHARPE, NORTH, and McALLISTER, JJ., concurred with POTTER, J.

WIEST, Justice (dissenting).

I do not concur in the opinion of Mr. Justice POTTER.

The award should be vacated.

Plaintiff was injured August 6, 1936. An award was by approved agreement. Final settlement receipt was approved December 29, 1936. In that receipt plaintiff stated: ‘I have fully recovered from all disability on account of this accident. I returned to work on the 16th day of Dec. 1936 at a wage of $31.20 per week and I understand that all compensation is now stopped and that I will have to show a change for the worse that has lessened my earning capacity before I will be entitled to further compensation.'

Plaintiff then stated the law on the subject.

November 23, 1937, plaintiff filed a petition for further compensation, alleging total disability to perform common labor ever since the date of the injury. Upon hearing the deputy commissioner denied compensation. At the hearing plaintiff testified:

‘Q. You also say in your petition for further compensation that you were totally disabled and had been totally disabled as a common laborer since August 6, 1936; is that your present claim? A. That is my present claim.

‘Q. And you claim you were totally disabled as a common laborer, although you worked at the plant from December 15, 1936 to November 13, 1937? A. In light work.

‘Q. If I understand your testimony you gave on direct examination, it is that your condition so far as the accident is concerned is the same now as it always has been since the accident? A. Since the accident.

‘Q. And that there has never been any change in your condition since the accident occurred? A. Well, it isn't as severe, but, as I say, you know, it is just practically the same as it was. * * *

‘Q. So there isn't anything different about it now than there was in December, say, December 15th 1936; it is the same now? A. The same thing all the way through.'

Upon review of the holding of the deputy the commission, unable to find a change for the worse from the time of the injury, still allowed compensation.

The case is ruled in all particulars by the unanimous opinion of this court, written by Justice Bushnell in Butler v. Millman, 271 Mich. 113, 259 N.W. 877, 878, where we held that approved settlement receipts have the force of an award, and the language of rule 29 of the department is without force because it cannot change the statute: ‘The rule cannot change the statute. 2 Comp.Laws 1929, § 8444. The approved settlement receipt is final and binding upon the parties thereto, and, in the absence of a change for the worse in his condition, the order of the department must be reversed.'

The cases cited by my brother have no applicability to the instant case.

BUSHNELL and CHANDLER, JJ., concurred with WIEST, J.

On Rehearing.

POTTER, Justice.

The facts appear in the opinion filed April 4, 1939. Rehearing was granted.

This proceeding is under the workmen's compensation act. Its disposition depends upon the application of statutory rules to the facts.

At common law, an employer was not liable to an employee for injuries suffered by the employee arising out of and in the course of his employment if such employer was without fault. To recover in a suit for damages, it was necessary for the employee to show that the employer was negligent; that such negligence was the proximate cause of the injury complained of; and his own freedom from contributory negligence. It was a defense to the imposition of liability upon the employer if the proof showed the contributory negligence of the employee or the negligence of a fellow servant caused the injury, or that the employee assumed the risk of the employment.

The purpose of the workmen's compensation act was to cause the particular industry in which an employee was injured to bear the loss resulting from that injury so that society generally should not be compelled to support persons injured in industry. It substituted compensation for damages. It limited the liability of the employer to a definite amount if he became subject to the act; and, if he did not become subject to the act, if he was negligent at all, placed him at the mercy of the employee by taking from him the defenses of contributory negligence of the employee, negligence of fellow servants, and assumption of risk by the employee. The employee was deprived of a right to recover damages and limited to compensation. The purpose of the act was to make the loss caused by injury to employees a charge against the cost of production, the incidence of which was shifted to the ultimate consumer; to abolish the technical procedure of complicated lawsuits, the expense of contentions litigation which the workman was frequently unable to bear; to eliminate the interference of judicial tribunals with the administration of the act; to abolish the...