Winn v. Adjustable Table Co.

Person, J.

(after stating the facts). It is not shown that any deceit was practiced by the agent of the insurance company in obtaining the agreement for compensation. Claimant says that he supposed it was a receipt when he signed it, but that he did not ask to have it read, nor did he read it himself, although he was competent to do so. Under these circumstances he will not be heard to deny the validity of the agreement. Sanborn v. Sanborn, 104 Mich. 180 ( 62 N. W. 371 ). But such an agreement may undoubtedly be reviewed by the Industrial Accident Board upon a proper showing, under section 13, pt. 3, of the act (2 Comp. Laws 1915, § 5466), and the compensation ended, diminished, or increased in accordance with the law and the facts. Upon such a review, as said in Estate of Beckwith v. Spooner, 183 Mich. 323 ( 149 N. W. 971 ):

“It can be stated as a general rule that the essentials leading up to the award, or its equivalent, are to be taken as res adjudicata, except the physical condition of the injured employee, which naturally and legally remains open to inquiry.”

But the facts do not bring this case within any provision of the law that will permit an increase of compensation beyond the amount stated in the agreement. *131 The Industrial Accident Board found that claimant was totally incapacitated from following his trade as a carpenter, but it also found, as it necessarily must have found, that the total incapacity was not the result of the present accident alone, but of that in conjunction with the earlier accident. As was held by this court in Weaver v. Maxwell Motor Co., 186 Mich. 588 ( 152 N. W. 993 , L. R. A. 1916B, 1276):

‘‘The absence of either accident would have left the claimant partially incapacitated. We think it clear the total incapacity cannot be entirely attributed to the last accident. It follows that the compensation should be based upon partial incapacity.”

But how can an award for partial disability be made, under the statute, in the presence of a total actual disability, except as a specific liability under the schedule in section 10 of part 2? There is no way by which we can fix the duration of a partial disability that has been merged in a total disability. This is true even if the partial disability is, as asserted by claimant, something more than the mere loss of the finger. And, if we could approximate its probable duration, there is no method provided for determining the amount of the compensation. The section referred to says:

“While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter.” Act No. 10, Pub. Acts 1912, Extra Session, pt. 2, § 10 (2 Comp. Laws 1915, § 5440).

And it is impossible to know how much the claimant might have earned if suffering only from the partial disability, when, as a matter of fact, he cannot earn anything because of the total, disability. The difficulty is illustrated by the award that the Industrial Accident Board made. That board found a total disability, *132 but did not make an award for total disability, inasmuch. as it limited the payments to a period not exceeding 200 weeks, when for total disability they might have extended through a period of 500 weeks. Nor, on the other hand, did the board measure the amount of compensation by the statutory rule for partial disability. It evidently treated the injury as the loss of an arm for which the period of compensation is 200 weeks. But the arm was not lost within the meaning of the statute, and the order was unauthorized. It was an attempt to meet a situation not provided for by the statute, and neither the Industrial Accident Board nor this court has any power to do that.

The injury must be treated simply as the loss of the third finger, for which the claimant is specifically compensated by the terms of the statute. The agreement entered into by the parties was in accord with this provision, and must stand.

¡ The order of the Industrial Accident Board is reversed, and the petition dismissed, but without costs.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.