Seppi v. Ford Motor Co.

Bushnell, J. Plaintiff was granted leave to appeal from an order of the department of labor and industry, which affirmed the granting by one of its deputies of defendant’s petition to stop compensation. In their opinion the commissioners of the department cited Markey v. S. S. Peter & Paul’s Parish, 281 Mich. 292, as authority for the action taken and said: “The commission will issue an order in the instant case providing that compensation shall stop, said order, however, containing a specific explanation and proviso to the effect that the stoppage is based not on the physical condition (concerning which the commission is without adequate information) but solely on the ground that the plaintiff is now employed at wages equal to those received at the time of the accident and that compensation may resume, under a petition for further, without a showing of change for the worse in the physical condition, if a right to a resumption of compensation is otherwise established. ’ ’ The formal order entered by the department states that the petition to stop compensation was granted *412 “solely on the ground that the plaintiff is now employed at wages equal to those received at the time of the accident, and not on the basis of physical condition. ’ ’ Plaintiff claims that the affidavit which accompanied defendant’s petition was defective in that it lacked a statement, required by Rule No. 17 (Rules of Practice and Procedure, Department of Labor and Industry, Eff. September 1, 1935) of the commission, setting forth in detail plaintiff’s physical condition. Plaintiff calls attention to the following allegation in defendant’s petition: “Tour petitioner further represents that said employee has fully recovered and that his condition has improved since 9-29-36, as follows: to the extent that he has resumed employment. ’ ’ Plaintiff argues that the petition was based in part on the proposition that plaintiff had recovered from his physical disability and that, therefore, the foregoing omission in the affidavit prevented the department from having jurisdiction, and its order was void. We do not agree with this contention. Defendant’s petition urges stoppage of compensation not only because of an asserted physical recovery by plaintiff, hut also because of his claimed rehabilitation through resumption of employment at his previous wage. Rule No. 17 does not require mention in the affidavit of the employee’s physical condition in order to confer jurisdiction upon the department to stop compensation upon this latter ground. The affidavit was adequate for this purpose, and the order of the department did not exceed the jurisdiction thus conferred. Plaintiff relies on Paselli v. Utley, 282 Mich. 267, in support of his contention. The record in that *413 case shows that compensation was stopped by an order of the department because of the department’s finding that the employee was not then physically disabled. The department’s order was vacated on review because the affidavit accompanying the petition failed to state the physical condition of the employee, and, therefore, could not confer jurisdiction upon the department to stop compensation upon the ground stated in its order. See Rule No. 17, supra. The affidavit in the Paselli Case was also fatally defective in other respects. The Paselli Case must be read in connection with the Markey Case, supra, and the still more recent opinion on rehearing in DeTroyer v. Ernst Kern Co., 282 Mich. 689, commented upon in Roundtree v. Ford Motor Co., 283 Mich. 141. Plaintiff argues in his reply brief that defendant failed to show that he (plaintiff) was employed at the time the deputy conducted the hearing on defendant’s petition to stop compensation. This question is not included in the statement of questions involved and we do not pass upon whether there was such a failure of proof, nor do we determine in this appeal what the consequences of such failure would be. The order of the department in the instant case is in conformity to the principles enunciated in the foregoing cases; and it is not an adjudication of plaintiff’s physical condition. It is affirmed, with costs to appellee. Wiest, C. J., and Butzel, Sharpe, Potter, Chandler, North, and McAllister, JJ., concurred.