Plaintiff sustained an accidental injury while in defendant's employ on April 11, 1931, and was paid compensation at the maximum rate until May 2, 1932. Thereafter, various petitions for further compensation *Page 297 were filed, the details of which are unimportant in this controversy.
On October 9, 1933, he received an award of $9 per week for partial disability, payment of said sum to commence as of July 7, 1933, and to continue until the further order of the department. He was paid the said sum weekly in accordance with the award until he had actually received compensation for a total of 499 weeks. The final payment for the 500th week was never received by him, although it is clear from the record that this payment was tendered by defendant and refused by plaintiff, the tender being made in the same manner that all prior payments had been tendered and received by plaintiff.
On December 16, 1940, he filed a petition entitled "petition for further compensation and reinstatement of original award and review of payments.' After hearing, the department entered an award granting compensation at the rate of $18 per week from October 25, 1934 to November 8, 1940, defendant being given credit for the amount already paid during this period under the previous award of $9 per week. From the award so entered, defendant takes this appeal in the nature of certiorari.
Appellant claims that the department was in error in granting the increased amount because plaintiff showed no change in physical condition subsequent to the last adjudication. We find, however, that it is unnecessary to pass upon this question.
The 500-week period expired on November 8, 1940. See 2 Comp. Laws 1929, §§ 8425, 8426 (Stat. Ann. §§ 17.159, 17.160);Kiviniemi v. Quincy Mining Co., 286 Mich. 680. Appellant claims that the award was in error because the petition was not filed within the 500-week period, citing the Kiviniemi *Page 298 Case and Willard v. Globe Housewrecking Co., 294 Mich. 42. Appellee, on the other hand, contends that these cases are not applicable inasmuch as the injured employee therein had been paid for the full 500 weeks prior to the filing of the petition.
This argument, obviously, is based on the fact that plaintiff did not actually receive payment for the 500th and last week of the compensable period.
In the Kiviniemi and Willard Cases, supra, we held that the power to review payments terminates when the injured employee has received the maximum number of weekly payments either for partial or total disability, and we are of the opinion that plaintiff's claim is barred by this rule.
The record indicates and both parties concede that the last payment was tendered on or about November 11, 1940, but refused by plaintiff when he was informed that it was the final payment. The tender was renewed by defendant at the time of the hearing. Plaintiff made no objection to the mode of tender, the same being in accordance with the practice that had been followed in making payments to him throughout the compensable period. Although the final payment was not received by him, we are of the opinion that under the facts before us defendant's tender determined the rights of the parties in this proceeding. Payments were being made under and in accordance with a prior award. Defendant complied with the provisions of the award in making the tender and was not in a position to force plaintiff to accept the payment if he chose not to do so. After defendant had done everything possible to comply with the provisions of the previous award for the maximum period prescribed by the statute, plaintiff, after the expiration of such period, should not have the right to *Page 299 reopen the matter and claim additional compensation on the theory that the defendant has failed to comply.
The award should be vacated, with costs to appellant.
BUTZEL, J., concurred with CHANDLER, C.J.