Mich., which, as an employer of labor, had, with approval of the Industrial Accident Board, elected to come under the provisions of Act No. 10, Public Acts of 1912, Extra Session (2 How. Stat. [2d ed.] § 3939 et seq.). While regularly engaged in its employment as a molder Spooner suffered an accident resulting in an injury to his right eye, described by his employer, in its report made under the requirements of section 16, part 3, of said act, as follows: [326] "Molten iron splashed into right eye, right eye burned."

Section 5 of part 3 of said act provides: "If the employer, or the insurance company carrying such risk, or commissioner of insurance, as the case may be, and the injured employee reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the Industrial Accident Board, and, if approved by it, shall be deemed final and binding upon the parties thereto. Such agreements shall be approved by said board only when the terms conform to the provisions of this act." Pursuant to the provisions of this section the following was filed with the Industrial Accident Board, on November 14, 1913:

"AGREEMENT IN REGARD TO COMPENSATION. "We, Al Spooner, residing at city or town of Dowagiac, Mich., and Fidelity & Casualty Co. of N. Y., have reached an agreement in regard to compensation for the injury sustained by said employee while in the employ of Estate of P. D. Beckwith, Inc., Dowagiac.

"The time, including hour and date of accident, the place where it occurred, the nature and cause of injury and other cause or ground of claim, are as follows:

"Mr. Spooner was injured October 22. 1913, about 4:30 P.M. Molten iron splashed into right eye, causing bad burn in corner of eye. "The terms of the agreement follow: $17.60 wages earned; $8.80 compensation agreed upon.

"Dated at Dowagiac, Mich., this 12th day of November, 1913."

This agreement was approved by the Industrial Accident Board on November 14, 1913, and thereafter compensation was paid accordingly from October 22, 1913, to January 14, 1914. On January 21, 1914, appellants [327] filed with the Industrial Accident Board a petition asking to be relieved from further payments, based upon the following letter or report, addressed to Dr. Jones, the local physician who attended Spooner professionally at the time of his injury, and who had referred him to Dr. Bonine, an eye specialist:

Dr. J. H. Jones,

Dowagiac, Mich.

Dear Sir:

January 15, 1914.

I have had Mr. Spooner under my careful scrutiny and find the following condition: Some years ago I operated for cataract on one eye and obtained good results-above the average. The other eye shows signs of the same trouble at this time. That, however, is not strange as it is the rule with senile cataracts if they come on one eye they are quite certain to grow on the other, as you know.

Therefore there is nothing unexpected about the remaining lens filling in, so can't see where any one could be held responsible for present conditions, as no other pathological condition of the orbit is in evidence.

[Signed] F. N. Bonnie, M. D.

Upon the hearing of said petition depositions of Drs. Jones and Bonine were introduced in evidence. The board thereafter made the following:

"FINDINGS OF FACT.

"(1) The respondent, Alden Spooner, was employed in the plant of the Estate of P. D. Beckwith, Inc., as a molder, and had worked there for several years in that capacity. He was 65 years old, and at the time of the injury was receiving wages of $17.60 per week.

"(2) That on October 22, 1913, respondent while attending to his duties as a molder, received an injury to his right eye by having hot sand and other substances splashed into the same, producing an inflammation necessitating immediate medical attention and causing disability to do work.

"(3) That in 1905 respondent had a cataract removed from his left eye by Dr. F. N. Bonine, and that [328] such operation was successful and the result thereof above the average.

"(4) That respondent's right eye, being the one injured in October, 1913, has now developed a cataract, which is so far advanced that he can discern light, but has practically no vision. His left eye, operated on in 1905, is of little use, and he is in a condition of total disability on account of the condition of his said eyes.

"(5) That the claim of petitioners that the present condition of respondent's right eye is due not to the injury thereof on October 22, 1913, but that such condition is due to senile cataract, is not sustained by the evidence.

"(6) That the present condition of respondent's right eye and his resulting disability is due to the injury received by him October 22,

1913.

"(7) That all of the proposed findings of fact of petitioners, not included in these findings, are refused."

Against the action of the Industrial Accident Board in this matter, appellants urge two major grounds of reversal: First, that the controlling findings of fact are unwarranted and unsupported by evidence; and, second, "insufficiency of proceedings." In explana

tion of the latter it is stated that not the legality, but the sufficiency, of the proceedings is questioned, in the particular that, although appellants in support of their petition produced proof which established

"Spooner was suffering with a senile cataract, and that his disability was not a result of his injury of October 22, 1913, yet the Industrial Accident Board refused to accept the unchallenged testimony of the physicians, and without any further evidence whatsoever, as to Spooner's precise condition, with respect to his eyes, entered an order denying appellants' petition, which order is so vague, uncertain and indefinite that it may work irreparable damage to appellants,

and "that appellee has never produced any proof that he sustained an injury while in the employ of the Estate of P. D. Beckwith, Inc.; that there is no evidence that his disability or impairment of eyesight [329] were a result of his accident of October 22, 1913, as well as that it did not exist for some time prior to the date mentioned; that at no time has any admissible evidence been offered relative to his present condition, whether the sight of the left eye operated on in 1905 is good, or in any degree impaired, and if impaired to what extent, nor is there any testimony as to the exact condition of the right eye, in which grains of sand lodged on October 22, 1913, and whether the sight in that eye is impaired, permanently or partially, or to what degree."

In the latter particular appellants disregard the significance of the report and agreement as to compensation filed by them, which eliminate the various statutory steps of arbitration now urged as imperative. The agreement, filed with and approved by the board, is a substitute for, and, under the statute, the legal equivalent of, an arbitral award. They have equal force and like standing when, to enforce recovery it becomes necessary to put them in judgment in the circuit court for the county where the accident occurred (section 13, part 3, of said act). The power of the board to act upon a petition such as appellants presented in this case is found in the following section (14), which authorizes it to review any weekly payment at the request of the employer, insurance company carrying the risk, commissioner of insurance, or employee, "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."

On the hearing of such petition for review 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. Mead v. Lockhart, 2 B. W. C. C. (Eng.) 398.

We discover no claim in this record that appellants were induced to enter into the agreement regarding [330] compensation by fraudulent misrepresentations of the other party. It is established beyond question by their own representations that Spooner was injured on October 22, 1913, while working as a molder for the Estate of Beckwith, by "molten iron splashed into right eye; right eye burned;" that he was treated by Dr. Jones, one of their witnesses, on October 23d, 27th, 30th, and 31st. Dr. Jones, a physician in general practice, testified that he found small, black particles of foreign substance in the right eye and inflammation in the conjunctiva, but neither it nor the cornea were abrased or penetrated; that the inflammation was slow in disappearing, and continued over several weeks-four or five weeks before it disappeared that he thought it a case which needed the service of a specialist, and referred the patient to Dr. Bonine. The only reference in Dr. Jones' testimony to a cataract is found in this answer to a question, on cross-examination, whether he thought the injury he treated would cause, or help cause, a cataract.

"A. Well, upon technical points, the substance of special matters bearing upon the interior conditions of the eye, I don't make a special work of it. I would state, however, severe injuries to the eye do cause cataracts. I do not make a practice of treating conditions that involve the interior of the eye, but I refer them to a specialist."

We see no force in the contention that at the time of settlement Spooner was not suffering from an injury which arose out of and in the course of his employment. The manner of the accident and condition of the eye were then open to appellants' investigation, and unquestioned. After ample time and opportunity to learn fully of the accident and history of the case from the physician in charge, the injured employee, and all other sources, the agreement was made on November 12th following. We find no testimony tending in any manner to show that prior to the accident there [331] was any cataract or impairment of vision in, or trouble with, this right eye. Thereafter its vision was impaired, and a state of inflammation, slow in healing, led the local physician to refer the patient to a specialist, who, on December 20, 1913, discovered an immature, developing cataract, the existence of which was undisputed at the time of hearing.

Dr. Bonine testified that when he examined the injured eye, on December 20, 1913, "there was irritation of the eye that could be attributed to an inflammatory state of traumatism producing it, or hardness of the eyeball would cause a largeness of the vessels of the eye, would give it that appearance;" that he found a pretty well-advanced cataract on that eye, but could not tell how long it had been forming, because he had not seen Spooner, except casually, since he operated on his left eye for a cataract eight years previous, in 1905. In explaining the nature of cataracts, witness stated that there were three distinct ways in which they are formed, the simplest being a traumatic cataract, caused from an injury, the second a senile cataract, caused by an interference with the nourishment of the lens through diseases of the inner tissues, and the third hereditary, or resulting from hereditary tendency; that a traumatic cataract would usually come in from one to three or four weeks after an injury, or sometimes instantly if the lens was pierced so that the aqueous humor came in contact with it; asked if this was a traumatic or senile cataract, he answered:

"A senile. . It is the rule when a cataract comes on one eye the tendency is to form on the other; not necessarily, but it is the rule, and not concurrent. .

"Q. Could you determine, in saying, whether this was a senile or traumatic cataract? "A. The stage of inflammation had gone on until it would be a difficult matter to do that. The only indication [332] had was irritation or flushed eyeball that I spoke of at first; that was traumatism.

"Q. Has the cataract grown since you first saw Mr. Spooner in December?

"A. From the first to the last the vision has decreased decidedly.

"Q. If this was a traumatic cataract, would it have been probably fully developed by December 20th, in 8 weeks?

"A. Depending upon the severity of the injury. If the injury was slight, it would develop slowly."

Being asked on cross-examination, "In your opinion, doctor, is there any connection between the cataract on the left eye and on the right?" he answered:

"The only connection established would be the rule of the formation of cataracts, as over 80 per cent of cataracts that form first in one eye would later form on the other, 20 per cent of one eye will be cataracts, and the other eye not at all, so that is the only relation one eye could have to the other."

The doctor nowhere testifies that the cataract removed by him from the left eye over eight years before was senile, but such possibly may be inferred from his testimony, especially when considered in connection with his letter to Dr. Jones.

Section 12, part 3, of said Act No. 10, under which these proceedings are had, empowers this court to review only questions of law; all questions of fact determined by the board from competent evidence being conclusive, in the absence of fraud. It must be conceded, as urged by appellants, that the record discloses no testimony, competent or otherwise, to sustain the finding:

"His left eye, operated on in 1905, is of little use, and he is in a condition of total disability on account of the condition of his said eyes."

This finding, however, tends only to confuse, and must be eliminated from consideration, not only because it has no evidential support in the case, but no [333] claim was ever made for injury to the left eye, and its condition is not in issue. With it eliminated, there is sustaining evidence for the remaining findings of fact essential to support the order sought to be reversed.

The controlling issue raised before the board by appellant's petition for review was whether they had by their evidence conclusively established that the cataract which appeared in claimant's right eye after the injury was senile, and therefore not connected with, or attributable to, such injury. To sustain appellant's contention here this court must therefore be able to say, from the whole record, as a conclusion of law, that the Industrial Accident Board must find, not could find, as a conclusion of fact, that the cataract in the injured right eye is senile and not traumatic, and that Spooner was not, at the time of hearing said petition, under any incapacity attributable to the accident, and resulting injury to that eye, on October 22, 1913.

We conclude that upon such issue different inferences of fact could legitimately be drawn from what the record discloses and, in such case, where the board does not find "that the facts warrant such action" as may be requested under section 14, part 3, of the act creating said board, the court cannot disturb its findings and orders thereon, made while acting within the authority there conferred. The order complained of is therefore affirmed.

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

NOTE.

Increase, Decrease, Termination or Suspension of Allowance under Workmen's Compensation Act.

Introductory, 890. Increase, 890.

Decrease, 891.

Termination. 894.

Suspension, 897.

Introductory.

The English workmen's compensation act and those of some of the American states provide for a review or revision of an allowance of compensation in case of a change of conditions. The statute of Michigan, on which the court proceeds in the reported case, is patterned after the English act and is fairly typical. It provides as follows: "Any weekly payment under this act may be reviewed by the industrial accident board at the request of the employer, or the insurance company carrying such risks, or the commissioner of insurance as the case may be, or the employee; 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." Some American acts limit the time within which a revision may be applied for. Thus the Illinois act provides for a review "at any time within eighteen months after such agreement or award." Other statutes contain no provision for a review. The provisions of the English act have been the subject of much litigation, but as yet there have been few decisions under the American statutes. The extent of the power to increase, decrease or terminate an award in the absence of an authorizing statute seems never to have been passed on.

Increase.

Under some of the workmen's compensation acts an increase of allowance may be awarded a workman in case of an unexpected continuance of incapacity to perform the work at which he was engaged at the time of his injury or a change in the condition of the injured man since the original allowance. Walton v. South Kirby, etc. Colliery, 107 L. T. N. S. (Eng.) 337, 5 B. W. C. C. 640; Foley v. Detroit United Ry. (Mich.) 157 N. W. 45. See also Moreland v. Eley [1915] W. N. (Eng.) 359, 60 Sol. J. 59. Thus in Walton v. South Kirby, etc. Colliery, supra, it appeared that a workman while mining coal for his employers received injuries to his head, body and foot through the fall of a roof. After paying his compensation for some time the employers ceased doing so on the ground that he was fit to return to work. Proceedings were taken thereupon and an award was made for the payment of arrears and a stipulated sum up to a certain date and thereafter 1d. per week. According to the evidence of the workman's doctors he was unable to work. The employers' doctor stated that he was able to do some light work, and the employers said they were prepared to find him such work. On the workman applying from time to time he was informed they could not give him any work but at the coal face, and he

was not fit to go there. Ultimately he was told to commence when he liked at the coal face which he did but was unable to continue owing to his injuries and was ordered out and told to see the manager. He did this and was told there was nothing else for him to do. He then applied for a review of the weekly payment asking for an increase. The county court judge could see no change of circumstances at all and found that he had made no definite attempt to work at the coal face, thereupon dismissing the application. Discharging the order of the county court judge and allowing the appeal, Kennedy, L. J., said: "With great respect to the learned county court judge, I am entirely at a loss to understand how upon the uncontradicted evidence at the last hearing, the learned county court judge found that there was either no change of circumstances or no bona fide attempt to work. It seems to me that there has been some misunderstanding in the evidence which I am unable to explain. Then still less, if it were possible, do I understand the statement that the evidence was the same as before. We have nothing to do with deciding quantum, but, with great respect to the learned county court judge, it is quite clear that the workman is entitled to compensation, the amount of which the learned county court judge will have now to assess. In Foley v. Detroit United Ry. (Mich.) 157 N. W. 45, wherein it appeared that an injured motorman made application for further compensation, it was held that to sustain its award the Industrial Accident Board must have been able to find from competent testimony a continuing partial incapacity to properly perform such work of motorman. The court said: "There is testimony tending to sustain such a finding. Aside from claimant's own testimony as to continuing pain, weakness, and swelling in his leg which rendered it difficult for him to be upon his feet long and get around readily, the physicians called by both sides agree that he had a shortening of the leg of from a half to three-quarters of an inch which would be permanent, and that otherwise it would be months, if not years, before it would be strong and normal, if ever; that in its condition at the time they testified the lost percentage of normal use and strength was from 25 to 75."

On the other hand, where there has been no change in the condition of the workman from the time of the award no increase of compensation will be granted. See Giardelli v. London Welsh Steamship Co. [1914] W. C. & Ins. Rep. (Eng.) 339, 7 B. W. C. C. 550; Scott v. Long Meg Plaster Co. 111 L. T. N. S. (Eng.) 773, 7 B. W. C. C. 502 [1914] W. C. & Ins. Rep. 258. Thus in Giardelli v. London Welsh Steamship Co. supra, it appeared that a workman applied for an increase of allowance.

The county court judge, refusing the application, found that there was no change in his condition and that he could do light work, both at the time of the award and of the review. It was held that the finding was justified.

In Hart v. Cory [1915] W. N. (Eng.) 369, 60 Sol. J. 89, 85 L. J. K. B. 116, wherein it appeared that a workman's left eye was injured, no increase was allowed for trouble to his right eye later on which was not caused by the accident. And in Williams v. Bwllfa, etc. Steam Collieries [1914] 2 K. B. (Eng.) 30, 83 L. J. K. B. 442, 110 L. T. N. S. 561, 7 B. W. C. C. 124 [1914] W. N. 44, wherein it appeared that an application for a review of the weekly payment was made by a workman who was under twenty-one years of age at the time he was disabled, it was held that the court could not award an increase as from a time prior to the date of the application. The court said: "It is important to make it quite clear that this appeal falls to be determined upon the proper construction to be attached to the proviso. Paraphrasing that proviso, it comes to this: if the injured workman was an infant at the date of the accident and if the review takes place more than twelve months after the accident the court may inquire what the applicant probably would have been earning at the date of that inquiry and may award any percentage of the sum so found up to fifty per cent thereof; that is to say, the compensation is fixed not with regard to the actual earnings, but with regard to what the workman would probably have been earning at a particular moment of time had he remained uninjured. It is not open, in my view, to the learned judge, having found, if he had found, as a fact that the workman would be earning a particular wage at a particular moment of time, to really assume that he would have been earning, without evidence, that same amount of wages at an antecedent date, and to throw back the operation of the order to such antecedent date. In my opinion the order operates and can only operate from the moment of time at which the inquiry is to be answered-that is to say, the moment of time at which the inquiry is initiated."

Decrease.

The allowance awarded a workman for injury under a workmen's compensation act may be reduced if it is shown that he has recovered to an extent enabling him to do light work. Cardiff Corp. v. Hall [1911] 1 K. B. (Eng.) 1009, 104 L. T. N. S. 47, 4 B. W. C. C. 159; Silcock v. Golightly [1915] 1 K. B. (Eng.) 748, 84 L. J. K. B. 499 [1914] W. C. & Ins. Rep. 164. 8 B. W. C. C. 48, 112 L. T. N. S. 800 [1915] W. N. 33; Roberts v. Hall, 106 L. T. N. S. (Eng.) 769 [1912]

W. C. Rep. 269. See also Ashmore v. Lillie [1915] W. C. & Ins. Rep. (Eng.) 7, 8 B. W. C. C. 89. Compare Proctor v. Robinson [1911] 1 K. B. (Eng.) 1004, 3 B. W. C. C. 41. Thus in Roberts v. Hall, supra, wherein it appeared that a workman was able to do light work, it was held that the judge had discretion to reduce his allowance without evidence of the amount the man could actually earn. Fletcher Moulton, L. J., said: "In my judgment it would be a real calamity if we were to hold that compensation could not be reduced unless there was definite evidence as to the amount the man is able to earn at particular work and the probability of obtaining that particular work. Cases would go on to such a length and would require so much evidence, that instead of this being a beneficial jurisdiction it would be onerous to both parties. The act contemplates and enjoins that the arbitrator should use his good sense in the same way as members of a jury. I think he has a wider discretion than a jury because the act has not laid down any definite directions as to what the compensation should be. There is a maximum in the case of partial incapacity. It is not to exceed the difference between the wages the workman was earning before the accident and the wages he is still earning, or 'is able to earn in some suitable employment after the accident, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper.' Here the employer has established his right to have the amount of the weekly payment reviewed. Nineteen shillings represented the total incapacity. The employers proved that the workman was now able to do braiding or other light work. Thereupon the arbitrator was bound to consider what was the relation between the past and present wages. He came to the conclusion that the amount ought to be reduced to 14s. a week. In my opinion there was abundant material on which he could come to that conclusion, especially when taking into ac count his own knowledge of the work in that locality and the fact of the man being able to do some light work. This court does not reverse such a decision merely on a question of quantum for which there was abundant material." In Cardiff Corp. v. Hall [1911] 1 K. B. (Eng.) 1009, 104 L. T. N. S. 467, 4 B. W. C. C. 159, it appeared that the county court judge reduced the weekly payments of a workman on the report of a medical referee that the man though not able to do his former work could do light work. Dismissing an appeal from the finding the court said: "The facts here are that after certain evidence had been tendered before the judge the matter was sent to a medical referee who reported that 'Osborne Hall is now quite able to do any form of light work--more particularly such