Nevels v. Walbridge Aldinger Co.

• Decision Date: 09 December 1936
• Docket Number: No. 32.,32.
• Citation: 278 Mich. 214,270 N.W. 272
• Parties: NEVELS v. WALBRIDGE ALDINGER CO. et al.
• Court: Michigan Supreme Court

278 Mich. 214

270 N.W. 272

NEVELS

v.WALBRIDGE ALDINGER CO. et al.

No. 32.

Supreme Court of Michigan.

Dec. 9, 1936.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Fred Nevels, claimant, opposed by the Walbridge Aldinger Company, employer, and General Accident Assurance Corporation, insurer. From an adverse order of the Department of Labor and Industry, the employee appeals.

Award vacated and cause remanded.

Argued before the Entire Bench, except POTTER, J.

James B. Van Vechten, Jr., of Detroit, for appellant.

Kerr, Lacey & Scroggie, of Detroit, for appellees.

FEAD, Justice.

July 29, 1927, the parties agreed upon compensation of $14 per week during plaintiff's disability from an accident received by him while in defendant's employ. Compensation was paid to August 29th. A full settlement receipt was filed but not approved by the department. Payments were resumed and another receipt filed October 25, 1927, but not approved.

May 24, 1928, the department made another award of compensation of $14 per week, and on August 2, 1928, another full settlement receipt was filed but is unapproved. For practical reasons, because all contentions arise after it, and to avoid confusion of dates, we will refer to the award of May 24, 1928, as the original award.

May 5, 1933, plaintiff filed another petition for further compensation. June 5th the deputy commissioner made an award that plaintiff had suffered an accident and ‘is not entitled to receive and recover compensation’ from the defendants, and ‘The Deputy Commissioner further finds that this case was called and attorney for plaintiff examined the file and agreed that an order could be made that this case is Res Adjudicata.’

It is said that the attorney who then represented plaintiff at the hearing was inexperienced and made an unwarranted concession. In any event, seasonable claim for review was made by plaintiff but it was withdrawn on June 23, 1933, on stipulation providing from payment to him of $500 and attorney fees.

January 31, 1934, petition for further compensation was filed which, however, was voluntarily withdrawn July 2d, evidently to enable plaintiff to file a petition for delayed appeal from the award of June 5, 1933. The deputy commissioner ordered that the petition of January 31, 1934, ‘be and the same hereby stands withdrawn in like effect as if it had not been filed.’ The petition for delayed appeal was denied August 22, 1934.

October 10, 1934, the present petition for further compensation was filed. The deputy made an award of $14 per week, but, on review, the department awarded plaintiff $7.50 per week from October 10, 1934, until further order of the department. Plaintiff appeals.

Plaintiff contends his petition for further compensation should be treated as a petition for review of all payments since August 2, 1928, the date of the last payment made under the award of May 24, 1928. The department held that its General Order No. 30, issued July 17, 1933, was an approval of the final settlement receipt of August 2, 1928; that the awards of June, 1933 and July 2, 1934, were res adjudicata as to future awards; that plaintiff's condition has changed for the worse; but because the character and period of plaintiff's disability are uncertain, compensation should begin at the date of the filing of this petition.

After the case was heard by the department, General Order No. 30 came before this court and it was held that the order is not a blanket approval of settlement receipts. Weaver v. Antrim Iron Co., 274 Mich. 493, 265 N.W. 445; Wright v. Mitchell Brothers Co., 275 Mich. 591, 267 N.W. 571;Hurst v. Ford Motor Co., 276 Mich. 405, 267 N.W. 573. In the instant proceeding the department did not pass upon the validity of the settlement receipt of August 2, 1928, as in Weaver v. Antrim Iron Company, supra, it was suggested might be done. Consequently, the receipt now stands as unapproved.

The result of the lack of approval of the settlement receipt is that the original award of compensation remained in full force. Richards v. Rogers Boiler & Burner Co., 252 Mich. 52, 234 N.W. 428;Lacombe v. Birds Eye Veneer Co., 254 Mich. 233, 236 N.W. 874;Hurst v. Ford Motor Co., 276 Mich. 405, 267 N.W. 573.

So, in 1933 pliantiff had a choice of remedies, (1) to ask for a certificate of compensation due under the original award for the purpose of judgment in circuit court, or (2) to ask for review of payments. Plaintiff filed a petition for further compensation. The petition was unnecessary because the original award was in force and no valid second award of the same compensation could be made. But under the circumstances the petition is to be treated as a petition for review of payments. Gallup v. Western Board & Paper Co., 252 Mich. 68, 233 N.W. 184;Hurst v. Ford Motor Co., 276 Mich. 405, 267 N.W. 573. Upon such petition for review of payments the award of June 5, 1933, was made.

Plaintiff contends that the award of June 5, 1933, was a mere denial of his petition to review payments under the original award and is not res adjudicata of the situation at the time, but that he may recover for disability prior thereto. He relies on Grant v. Chevrolet Motor Co., 264 Mich. 510, ...