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in the employ of Detroit United Railway, 12 Woodward ave., Detroit, Michigan, subject to review and approval by the Industrial Accident Board.

Witness my hand this 4th day of March, 1914.
Witness: Nell S. McDonald,

Patrick Foley,
Detroit, Michigan.

242 Lycaste St.,
Detroit, Michigan.

Being in addition to the settlement receipt signed by said: Foley Feb. 17, 1914, he having been ready to work Feb. 18, but not actually starting to work until Feb. 22, 1914."

The $248.55 paid claimant for the intervening time between his injury and resuming work was clear to him and in addition to all expenses of his care and medical attendance which were assumed and paid by appellant.

On April 17, 1913, claimant filed a petition with the Industrial Accident Board, reciting briefly the facts of his injury, the compensation and care received until discharged from the hospital, his resumption of work as watchman for appellant, stated that in attempting to perform his duties in that capacity his leg became swollen at the end of the day's work and was so weak that he was unable to walk any great distance or be on his feet any great part of the day and

"That he consulted an eminent physician in the city of Detroit, who states that while the results obtained by the Detroit United Railway's physician have been good, still the injured leg, as a result of the aforesaid injury, is now one-half inch shorter than the other leg, and that your petitioner will not be able to follow any occupation in which it will be necessary for him to be on his feet any great portion of the day, or in which much walking or lifting is required.”

For which reason he asked the Board to adjudge him further compensation.

The return of the Industrial Accident Board to this writ of certiorari does not traverse nor deny the facts stated in appellant's affidavit on which the writ was allowed. It briefly states that claimant made application for a reopening of the case and an award of further compensation; that testimony was taken thereafter by deposition at the instance of both parties, after which a hearing was had on July 8, 1915, and the award complained of was made. "A resume of such testimony,” copies of claimant's petition and the order of said board are attached to said return as exhibits and part of said return. Counsel for the respective parties also stipulated in writing to the same as "the return of said Board,” with exhibits attached to the affidavit for writ of certiorari considered as a part thereof. The material parts of those exhibits (3 in number) are quoted above. No findings of fact or conclusions of law are returned and, so far as shown, none were made or filed by the Board.

Appellant's two principal contentions against the validity of this order are that the agreement between the parties after being approved by the Board was “final and binding" under the statute and the Board had no authority to re-open the case after claimant had signed a final settlement receipt in full, "in the absence of fraud, duress or mistake being alleged and prov. en as a basis for such re-opening," and

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"That there is no evidence in the record which would warrant an award to claimant of any further compensation as it is undisputed that at the time of the filing of the petition claimant was earning in respondent's employ in a shorter period of time, an amount equal if not greater than that earned by him prior to the accident."

The act clearly favors and contemplates an agreement between the parties as to compensation in case of an industrial accident and that the Board in its supervisory control shall favor and approve such agreements when understandingly made, without fraud, duress or undue advantage. (Section 5 part 3). An attempt to reach such an agreement is a prerequisite to an application to the Board for an arbitration and award. (Section 6 part 3). It is questions arising under the act, “not settled by agreement,” which the Board is authorized to determine, except as otherwise provided. (Section 16 part 3). Section 14 of part 3 provides:

"Any weekly payment under this act may be reviewed by the industrial accident board at the request of the employer, or the in

surance company carrying such risks, or the Commissioner of Insurance as the case may be, or the employe; and on such review it may be ended, diminished or increased, subject to the maximum and minimum amounts above provided, if the board finds that the facts warrant such action."

At the time the agreement in regard to compensation, which the Board approved, was entered into claimant was lying in the hospital totally incapacitated for work as the result of a compound fracture of his left leg sustained while in appellant's employ. Under Sec. 9 part 3 of the act he was entitled to receive from his employer one-half his weekly wages while his incapacity for work resulting from the injury was total, not to exceed 500 weeks. This agreement stated his average weekly wages and provided he should receive one-half of that amount "per week payable under act.” This was just what the law provided as applied to the undisputed facts and then existing conditions, and nothing more. It did not specify how long such weekly payments should continue, though an intent to cover the period of total incapacity might be inferred. So far as it went it was according to law and fixed a weekly basis of compensation for the ascertained total incapacity. This the Board approved. But it made no provision for the unascertained future partial incapacity which might follow the total, or for any lump sum which should be paid in final settlement.

The approval by the Board of this manifestly incomplete agreement, in view of the time when made and the nature of the injury, did not divest the Board of jurisdiction nor deprive it of its general supervisory powers in material matters necessarily left open for adjustment before final disposition of the case. The settlement receipt in full, given by claimant before he resumed work, is not shown to have been filed with or approved by the Board. Had it been, a different question would confront us under said sec. 5 part 3 of the act.

The last matter in the case brought to the attention of the Board, so far as shown, before claimant filed his petition for additional compensation under a claim of partial incapacity, was an agreement for weekly payment under the act on a basis of total incapacity, which it approved. Section 14 part 3 gives the Board the right, if it finds that the facts warrant such action, to end, diminish or increase "any weekly payment under this act.” It is said the parties interested had settled this question by agreement, as evidenced by the settlement receipt claimant signed, but to "be deemed final and hinding upon the parties thereto” under the act it was necessary that it should be filed with and approved by the Board.

Defendant's second contention is that, if it be found the Board had authority to reopen the case, no award could be made by it for further compensation as it is conceded claimant at the time of filing his petition, and when the testimony was taken as to his physical condition, was and had been since February 22, 1914, earning as much or more wages than he did before the accident causing his injury, and sec. 10 part 2 of the act provides :

"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 employe 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,

If this were the only and controlling provision in the act upon that subject appellant's contention could not be questioned; but the last sentence of the next ensuing section (11), which concludes a long series of provisions in it and preceding sections classifying injuries, treating total and partial incapacity, specifying and defining weekly rates, time payments shall continue, amount of compensation, methods of arriving at the same, etc., is as follows:

"The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employe, computed according to the provisions of this section, as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, but to be determined in view of the nature and extent of the injury."

Appellant urges that the provision is directly contradictory of Sec. 10 and an interpolation which means nothing, as “weekly loss of wages" is not mentioned in the act. While not referred to in exact language, in substance it is inevitably connected with and treated in what goes before touching compensation for incapacity resulting from the injury.

Although this provision is apparently restrictive, we do not find it directly contradictory of Sec. 10, and if it were, being the last of the two provisions it should prevail under the general rules of construction, provided either must be disTegarded. The language of this last provision is plain, and has but one obvious meaning, designating as the test capacity to earn in the same employment in which the employe was injured. That under this rule instances may arise where it works inequitably does not authorize the court to read exceptions into it or modify its plain language defining the basis for estimating incapacity, which at best can only be approximated. If the method ought to be changed or exceptional cases provided for the remedy rests with the legislature.

A ready disposition of this case is embarrassed by total absence of any findings of fact by the Board, which the statute appears to contemplate though not in express language commanding; (sec. 12 part 3). Counsel have stipulated to the return as satisfactory and "a resume of such testimony” with the order of award made by the Board have been passed up for this court to help itself to what it can find. Technically the order contains an implied finding of facts legally sufficient to support it and in that view the court may search the testimony to ascertain if the necessarily inferred facts presumptively found have evidential support. The dates when the testimony was taken are not disclosed though it appears to have been taken at intervals between the time of filing claimant's petition and the hearing and most of it while claimant was in appellant's employ. But when recalled for fur. ther examination some weeks later, near the conclusion of the proofs, claimant disclosed that he had been “let go” about the time he "blackened this fellow's face,” which episode re

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