Hurst v. Ford Motor Co.

North, C. J. This is an appeal by the defendant employer from an award of compensation to plaintiff who sustained an accidental injury to his left hand August 16, 1926. The employer reported the accident. An agreement between the parties to pay $14 per week during total disabilitj’ was made and filed. It is stated in the opinion rendered by the department that this agreement was approved. A settlement receipt dated November 4,1926, was filed. Subsequently, because of infection, the third finger of the employee’s injured hand was amputated. By agreement dated July 5, 1927, compensation for the loss of the member was fixed at $14 per week for 20 weeks. Thereafter a settlement receipt dated January 26,1928, was filed. As hereinafter noted, neither of the above-mentioned settlement receipts was approved by the department of labor and industry. *407 On December 19, 1934, plaintiff filed a petition for further compensation from which we quote: “Your petitioner further represents that since August 16, 1926, he has been disabled in the employment in which he was engaged at the time of the said injury and is entitled to further compensation. “Your petitioner further represents that the accident suffered on the above date and the subsequent infection left his injured left hand in such a crippled and weakened condition that he has never been able to resume the occupation in which he was engaged at the time of the accident.” In denying liability for further compensation defendant, in its answer, alleged: ‘ ‘ Claimant has been fully compensated for his disability. “No proceedings having been started within six years from the date of the accident, action is now barred (Hajduk v. Revere Copper & Brass, Inc., 268 Mich. 220).” On review the department of labor and industry made the following order: “Therefore, it is ordered, * # # that plaintiff is entitled to receive and recover and shall be paid by the defendant compensation for total disability at the rate of $14 per week from October 15, 1927, until the expiration of 500 weeks from the date of the accident or until the further order of the commission. ’ ’ This appeal is from the above award of compensation. It should first be noted that we are not in accord with appellant’s contention that under our holding in Hajduk v. Revere Copper & Brass, Inc., 268 Mich. 220, plaintiff’s alleged right to further compensa *408 tion is barred by tbe general statute of limitations. In the Hajduk Case tbe 'employee failed to institute any proceeding for compensation until bis right was barred by lapse of time. In tbe instant case compensation proceedings were timely instituted and tbe department bas retained jurisdiction. Catino v. Morgan & Wright Co., 272 Mich. 154. As noted above, tbe settlement receipt following tbe first award in tbe instant case was not approved by tbe department, notwithstanding tbe subsequent general order No. 30. Weaver v. Antrim Iron Co., 274 Mich. 493. Not having been approved tbe receipt was ineffective. Richards v. Rogers Boiler & Burner Co., 252 Mich. 52. Tbe original award is still in force. Weaver v. Antrim Iron Co., supra. Under tbe circumstances plaintiff cannot have a second award for further compensation. Gallup v. Western Board & Paper Co., 252 Mich. 68; Sampson v. Michigan Copper & Brass Co., 274 Mich. 592. Plaintiff’s present petition should have been considered by tbe department as one for review of payments. Grant v. Chevrolet Motor Co., 264 Mich. 510; Weaver v. Antrim Iron Co., supra; Wright v. Mitchell Brothers Co., 275 Mich. 591. Tbe extent to which plaintiff is entitled to a certificate for unpaid installments is challenged in appellant’s brief. We quote: “Tbe commission bas allowed compensation from the date of last payment. Some of these payments, if due at all, were due in accordance with the original approved agreement and were due more than six years before this present action was instituted. Tbe commission ordered payments from October 15, 1927. This present action was started December 19, 1934. Therefore, according to recent decisions, those *409 payments between October 15, 1927, and December 19, 1928, would be outlawed and the defendants would be entitled to tbat credit.” We have recently commented on tbis phase of tbe law. “Defendant’s fear tbat tbis rule would bar tbe defense of tbe statute of limitations against all payments maturing over six years ago is unfounded. If tbe certificate issued by tbe department of labor and industry should include payments barred by tbe statute of limitations, tbe defense would be open to defendant in tbe proceedings at law. Weaver v. Antrim Iron Co., supra.” If in tbe instant case there are unpaid installments of compensation which bave accrued within six years, plaintiff, upon application, is entitled to a certified record thereof. Buzzn v. Muncey Cartage Co., 248 Mich. 64. See, also, Ardelian v. Ford Motor Co., 272 Mich. 117. Because of tbe conclusion reached, other questions raised by appellant become immaterial. Tbe department’s award of October 2, 1935, will be vacated and tbe case remanded to the department for further proceedings in accordance herewith. Neither party having fully prevailed on this appeal, no costs will be awarded. Fead, Wiest, Butjzel, Bushnell, Edward M. Sharpe, and Toy, JJ., concurred. Potter, J., took no part in tbis decision.