On Jаnuary 20,1937, plaintiff, while in defendant’s employ, sustained an accidental injury arising out of and in the course of his employment. The injury consisted of a compound comminuted fracture оf the lower third of his left leg. By agreement plaintiff was paid compensation of $18 pеr week for total disability from the date of the injury to June 22, 1937. On June 23, 1937, plaintiff was returned to work and so remained until March 24, 1938, when he quit. A petition for further compensation was filed April 27,1938, the deputy commissioner granted an award for partial disability at the rate of $7.04 per week.
Plaintiff filed an appeal from this award and the department on review denied compensation. The department found that there had been no change in the physical сondition of plaintiff which had lessened his earning capacity, but made no finding as to plаintiff’s present disability.
*158 Plaintiff appeals and contends that prior to his injury, his work consisted in remоving heavy pieces of scrap metal, weighing from 50 to 150 pounds, from a conveyor linе; that compensation was paid, and on June 23, 1937, he signed a final settlement receipt in which it was stated that he had fully recovered and returned to work at $31.68 per week; that hе returned to work at a similar job handling pieces of scrap iron weighing from 5 to 10 pounds; that on March 24,1938, he was relieved of the light work he had been doing and was put on the heaviest job in the foundry; and that he was unable to do this kind of work and had to quit.
Plaintiff urges that the work he had been doing subsequent to his partial recovery was in an attempt at rehabilitation; and that the instant case is governed by the case of
Hayward
v.
Kalamazoo Stove Company,
It is an accepted principle of law in this State that an award of compensation may be modified by a showing of a change in the physical condition that affects the earning power of the party receiving such awаrd. See
Klum
v.
Lutes-Sinclair Co.,
*159 In the instant case, plaintiff signed the following receipt which was approved by the department:
“I have fully recovered from all disability on account of this accident. I returned to work on the 23d day of June, 1937, at a wage of $31.68 per week and I understand that all compensation is now stopped аnd that I will have to show a change for the worse that has lessened my earning capаcity before I will be entitled to further compensation.”
The instant ease may be distinguished from the Hayward Case, in that in the Hayward Case the department found as a fact that plaintiff was totally disabled at the time of the hearing on petition for further cоmpensation, and that there had been a change of condition to such an extеnt as to lessen plaintiff’s earning capacity; while in the case at bar, the department made no specific finding as to plaintiff’s present disability, but did find that there had been no сhange in plaintiff’s physical condition which had lessened his earning capacity.
The department made no finding as to whether this is a rehabilitation case, but from the receipt signed by plaintiff, the records of the department, and the evidence produced it is сlear that plaintiff was not employed at so-called “made” work.
It is well settled that if the department fails to make a finding upon a material issue, we may examine the testimоny taken at the hearing to determine whether there is any competent evidence to support the award. See
Foley
v.
Detroit United Railway,
In the case at bar, there is evidence to sustain thе finding of facts by the department. Dr. A. M. Sterling, a witness produced by the defendant, testified as follоws:
*160 “Q. Did you examine Mm in 1938?
“A. March, 1938.
“Q. What did that examination disclose?
“A. The examination disclosed a well-healed fracture of the lower third of the tibia and fibula with slight angulation but good weight-bearing surface. # # #
“Q. Does it (X-ray) show where the original fracture was ?
“A. Yes.
“Q. Does it show it is healed?
“A. Shows a perfectly healed fracture.
“Q. Well, Doctor, from your examination in March and your opinion, should this man be able to do the regular work of a laboring man?
“A. Yes, sir, I relеased Mm for work sometime in March, for any and all kinds of work, March 29th. ’ ’
The record supports the finding of the department and the award is affirmed, with costs to defendant.