Plaintiff, employed by Buck Construction Company, was injured, January 8, 1929, by slipping on the steps coming out of a basement, injuring his knee. There is no question of his employment, his injury, or the report of a compensable accident by defendant Buck Construction Company. After the accident a claim of compensation was filed, an award of $36 made to plaintiff, and he filed settlement receipt therefor, which was not approved by the department, and went back to work. October 9, 1929, plaintiff filed a petition for further compensation, claiming that since January 29, 1929, he had been disabled in the employment in which he was engaged at the time of the injury and was entitled to further compensation. He alleged he had continually suffered from the injury, and was unable to resume work. Upon hearing of this petition it was stipulated by the attorneys for the respective parties there was no disability at the time due to the accident and plaintiff's petition was denied. No appeal was taken from the order denying this petition. October 24, 1930, plaintiff filed a petition for further compensation alleging that because of the injury and of further complications which set in after a long time, at the University hospital at Ann Arbor, petitioner's leg had been amputated. Upon the hearing of this petition before the deputy commissioner it was denied and plaintiff reviewed the order of the deputy commissioner before the department of labor and industry, which reversed the award of the deputy commissioner and awarded plaintiff compensation for 175 weeks at $18 a week. Defendants appeal, claiming the department could not open an award and grant further compensation without showing a change of condition due to the accident; the award circumvented *Page 239 the second order, which was unappealed from, and became an adjudication, and there was no testimony to support the commission's award. That the order of the department of labor and industry dismissing claimant's petition of October 9, 1929, constituted former adjudication was not raised below and cannot be raised in this court for the first time.
Plaintiff's last petition sufficiently alleged a change of condition due to the accident and conferred jurisdiction upon the commission to act. There was testimony the injury from which plaintiff suffered and his subsequent condition were the probable result of such injury. We cannot say upon the record there was no testimony to support the award of the department of labor and industry, which is affirmed, with costs.
BUTZEL, C.J., and CLARK, McDONALD, SHARPE, NORTH, and FEAD, JJ., concurred with POTTER, J.