As I understand the opinion of Mr. Justice CHANDLER, it holds that the finding of the deputy commissioner that plaintiff was but partially disabled, unappealed from, is binding upon plaintiff, though he is now totally disabled and the testimony indicates he was totally disabled when the award of the deputy commissioner of partial disability was made.
If plaintiff is now totally disabled he should be compensated accordingly. He ought not to be deprived of his rights by the failure to litigate further the erroneous holding of the deputy commissioner.
The basis of the holding of the deputy commissioner was the opinions of physicians; and the basis for the holding that plaintiff is bound by the finding *Page 108 of the deputy commissioner, which was unappealed from, is the doctrine of res judicata.
In United Collieries, Ltd., v. King, 47 Scot. L. R. 41 (3 B. W. C. C. 546), it was sought to bar reconsideration of the case because the medical referee reported that incapacity had ceased and the workman acquiesced therein for nearly a year. It was said:
"To hold that arbitration proceedings otherwise competent and lawful can be barred by a medical referee's report (which is only a piece of evidence) seems to me to be a proposition which cannot be maintained under this act or otherwise."
In Radcliffe v. Pacific Steam Navigation Co., (1910) 1 K. B. 685, (79 L. J. K. B. 429, 102 L. T. 206, 54 S. J. 404, 26 T. L. R. 319, 3 B. W. C. C. 185), a case analogous to the present, where the county court reduced compensation and the plaintiff later applied for review, proposing to charge that his injured finger was in the same condition as when the last award was made and, second, that he was unable to obtain work after repeated attempts to obtain employment, and the employer raised the question of res judicata, the court held it had jurisdiction to review payments and restored the compensation of the workman in accordance with the original award. Lord Cozens-Hardy, M. R., said:
"It is not at first obvious that the doctrine of res judicata can in any way apply to an award which is expressly made liable to review."
He held that an award based upon medical opinion of a man's physical condition at one time in no way prevented a different award at a subsequent date when experience had proved that the views of the doctors were wrong, citing Sharman v. Holliday *Page 109 Greenwood, Ltd., (1904) 1 K. B. 235 (73 L. J. K. B. 176, 90 L. T. 46, 20 T. L. R. 135).
Lord Fletcher Moulton said:
"The doctrine of res judicata does not apply to a decision as to the amount of weekly payment to the injured workman when it is made the subject of an application to review."
He further said:
"It is evident, therefore, that the amount to be awarded on review is not and cannot be res judicata, since one of the necessary elements that must go to decide it is not subject to the res judicata. * * * The proposition that it is open to the applicant to have a review if he puts forward evidence of a particular kind, but that the matter is res judicata if he does not, is unintelligible to me. * * * If the decision on the previous occasion is to be held to constitute a decision binding for all time, although one of the elements going to that decision is the amount of wages that the applicant is earning, or able to earn, at the moment of the inquiry, then no change in the amount of such wages can get rid of the plea ofres judicata, and review would be impossible."
Lord Justice Buckley said:
"It seems to me that by the language of Sched. I. (16) of the statute this matter is made subject to review, and that finality is reached only when as in Nicholson v. Piper, (1907) A. C. 215 (76 L. J. K. B. 856, 97 L. T. 119, 23 T. L. R. 620, 51 S. J. 569); 9 W. C. C. 123 (96 L. T. 75), an award has been made that the weekly payments cease altogether on the ground that incapacity has ceased."
In Dundee, Perth London Shipping Co. v. Willcock, 9 B. W. C. C. 471, a workman was injured, the county judge found he was suffering permanent partial *Page 110 disability. The employer applied for a review of payments. Lord Cozens-Hardy, M.R., said:
"The learned judge seems to have thought that, having regard to his earlier award, there was something in the nature of an estoppel, but there can be no estoppel in a matter of this kind, such as there might be in respect, for example, of a finding as to the amount of the workman's wages. The view of a learned judge as to a man's physical condition is a matter of opinion as to which there can be no estoppel."
Lord Justice Pickford agreed and quoted with approval the language of Lord Collins in Sharman v. Holliday Greenwood,Ltd., above cited.
The physical condition of the workman and his capacity or incapacity for work at different periods can never be resjudicata. 20 Halsbury's Laws of England, p. 231.
"While the incapacity for work resulting from the injury is total, the employer shall pay." 2 Comp. Laws 1929, § 8425 (Stat. Ann. § 17.159).
"While the incapacity for work resulting from the injury is partial, the employer shall pay." 2 Comp. Laws 1929, § 8426 (Stat. Ann. § 17.160).
Even Estate of Beckwith v. Spooner, 183 Mich. 323 (Ann. Cas. 1916 E, 886), which injected the doctrine of res judicata into the workmen's compensation law in this State, excepts from the operation of that rule "the physical condition of the injured employee, which naturally and legally remains open to inquiry."
The findings of fact of the department of labor and industry may be conclusive as of the time the finding was made and as the basis for its award. 2 Comp. Laws 1929, § 8451 (Stat. Ann. § 17.186). But such findings can in no way constitute resjudicata, binding in the future, for the department may *Page 111 end, increase or diminish compensation thereafter as it finds the facts to be. 2 Comp. Laws 1929, § 8453 (Stat. Ann. § 17.188).
In this case, the view of the deputy commissioner as to plaintiff's physical condition was a mere matter of opinion which cannot be made the basis of estoppel or of res judicata. The award of the department should be based upon the facts as it found them upon the hearing to be.
I think the award should be sustained.
McALLISTER, J., concurred with POTTER, J.