273 N.W. 336 | Mich. | 1937
Plaintiff in his appeal seeks mandamus to compel the department of labor and industry to issue to him a certificate of judgment. Plaintiff was injured on November 8, 1928, and shortly thereafter entered into an agreement for compensation with the Royal Indemnity Company, insurer of the employer. The agreement was approved December 8, 1928. On April 3, 1929, plaintiff signed a settlement receipt which was never approved by the department. On July 17, 1933, the department adopted general order No. 30 approving all final settlement receipts filed prior to the 17th of April, 1932, in all cases in which no proceedings had been commenced to take judgment, reopen, or for further compensation, and also, in which no proceedings had been had or commenced by either party for more than one year prior to April 17, 1932.
On January 14, 1937, almost seven years after the settlement receipt was filed, plaintiff requested a certificate of judgment and a seven days' notice was sent by the department to the employer. On January 19, 1937, an order was issued recognizing the request as a petition for the review of payments, and the case was set for hearing. Plaintiff recognized said order and procedure for he gave notice of the taking of depositions for use at the hearing. On February 11, 1937, the department, evidently through some error, forwarded to the employer notice of request for certificate of judgment, but upon the department's attention being called to the error, it advised plaintiff's attorney that a certificate would not *585 be issued until after a hearing and a finding that plaintiff was entitled to the certificate. Thereupon plaintiff sought mandamus in this court. On April 19, 1937, after the instant mandamus proceeding was begun, defendant employer filed with the department a petition requesting approval of the final settlement receipt, or in the alternative, a review of the payments made. It claims that this is the proper method of procedure. Plaintiff, on the other hand, claims a certificate of judgment as a matter of course.
The question of the validity of general order No. 30 was considered in Weaver v. Antrim Iron Co.,
"The validity of a general order might be questioned if it is claimed to be a blanket approval of thousands of settlement receipts without any other notice to the parties or opportunity given them for a hearing upon its application to the matter affected. The general order does not purport to have such effect nor has the department so treated its applicability. Its primary purpose was stated in Giampa v. Chrysler Corp.,
"The ordinary practice in adjudging such settlements would be to give notice to the parties and hear them. Instead of doing this in all cases, it is evident that the department, in order to avoid multiplicity of proceedings and conveniently to administer the law, has very properly taken occasion to examine into and adjudge the approval of old settlement receipts in connection with petitions to review payments or for *586 further compensation. It has also ordered hearings on settlements when a certificate has been sought for the purpose of instituting proceedings to recover a judgment at law.
"Obviously, the determination by the department of the approval of a settlement is the first step in such cases. If it be approved, the employee must show a subsequent change of condition in order to recover an award. If the settlement is not approved, the original award stands in full force, subject to the power of the department to review payments. Under its power to review payments, the department is called upon to determine the physical condition of the employee from time to time, after the settlement receipt was made, together with earnings, if any, payments made by the employer, if any, and his earning capacity, and then make such determination of the amount due him as the facts warrant. The amount thus found would be a sum for which the employee would be entitled to a certificate for judgment. * * * In so finding, the department first passed upon and denied approval of the settlement receipt, and then, on review of payments, determined that plaintiff was entitled to the whole of the original award. While, strictly speaking, the finding was not an award of compensation, it amounts to a determination of the sum for which plaintiff is entitled to a certificate for the purpose of proceedings at law. So construed and with such effect, the order is affirmed."
To like effect, see Morgan v. Chevrolet Motor Co.,
255 Mich. 602 ; Stetu v. Ford Motor Co.,277 Mich. 468 . In the cases cited by plaintiff, the point involved was not raised.
Plaintiff's petition for a writ of mandamus is denied, with costs to defendant.
FEAD, C.J., and NORTH, WIEST, BUSHNELL, SHARPE, POTTER, and CHANDLER, JJ., concurred. *587