After careful consideration of the department's opinion I am unable to agree with the conclusion of either Justice REID or Justice BOYLES that the department's award should have been or was granted under the provisions of part 7 of the workmen's compensation act (Comp. Laws Supp. 1940, 1945, § 8485-1 etseq., Stat. Ann. 1946 Cum. Supp. § 17.220 et seq.). Nowhere in the department's opinion is there a reference to part 7 of the act, nor is "occupational disease" mentioned in the department's opinion. In the only case cited by the department in support of its opinion (Anderson v. General Motors Corp., 313 Mich. 630) compensation was awarded under part 2 of the workmen's compensation act for a "personal injury of November 1, 1943" suffered by Anderson incident to his lifting a heavy piece of metal. Further, in the instant case the department said:
"Plaintiff filed an application for hearing and adjustment of claim for compensation July 9, 1945, alleging a personal injuryarising out of and in the course of his employment. * * * On January *Page 161 19th an award was entered (by the deputy) finding plaintiffsustained a personal injury arising out of and in the course ofhis employment."
The award of the deputy was affirmed by the department, with only an inconsequential modification as to dates. Further in its opinion the department said:
"It is our opinion and we find that the plaintiff sustained a personal injury on January 27, 1945, not attributable to a single event but to repeated events and strain which brought about an unexpected result; that the injury arose out of and in the course of his employment. Section 1, part 2 of the workmen's compensation act, as amended in 1943,* provides as follows:
"`An employee, who receives a personal injury arising out of and in the course of his employment by an employer who is at the time of such injury subject to the provisions of this act, shall be paid compensation.' * * *
"See the opinion of the Supreme Court in the case of Anderson v. General Motors Corporation (supra)."
In view of the foregoing, as noted above, I am unable to agree that the department based its decision in the instant case on the provisions of part 7 of the workmen's compensation act; but on the contrary it seems clear that the compensation was awarded under part 2 of the act.
While I concur in affirming the award made to plaintiff, I am of the opinion that our decision should be on the same ground as that of the department which as above indicated was that plaintiff sustained a personal injury arising out of and in the course of his employment and in consequence thereof he was entitled to and received compensation under *Page 162 part 2 of the workmen's compensation act, as amended in 1943. Such holding is in accordance with our decision in Anderson v.General Motors Corporation, supra.
BUSHNELL, and DETHMERS, JJ., concurred with NORTH, J.
* Comp. Laws Supp. 1945, § 8417, Stat. Ann. 1946 Cum. Supp. §17.151. — REPORTER.