When the 1931 settlement agreement was approved by the department it became, in effect, an award by the department. Richards v. Rogers Boiler Burner Co., 252 Mich. 52; Glavin v. Michigan State Highway Dept., 269 Mich. 672; and Roe v. Daily Record, 273 Mich. 5. The approved agreement having the force of an award, defendants' arguments as to finality are equally applicable to that approved agreement. The agreement being final, the department was without jurisdiction to modify the rate of compensation by the 1932 award except upon proof of a change of physical condition.

In Southern Surety Co. v. Curtis, 240 Mich. 566, 215 N.W. 701, the court held that where an injured employee was induced by fraud to make a settlement, the remedy was not under the Workmen's Compensation Law, but a bill in equity. See, also, Panozzo v. Ford Motor Co., 255 Mich. 149, 237 N.W. 369; Hughson v. City of Kalamazoo, 271 Mich. 36, 260 N.W. 111; Roe v. Daily Record, 273 Mich. 5, 262 N.W. 330; Fawcett v. Department of Labor and Industry, 282 Mich. 489, 276 N.W. 528. Cases in Indiana are not in accord with this view. In re Stone, 66 Ind. App. 38, 117 N.E. 669; Frankfort General Ins. Co. v. Conduitt, 74 Ind. App. 584, 127 N.E. 212; Aetna Life Ins. Co. v. Shiveley, 75 Ind. App. 620, 121 N.E. 50, 54.

The department could not recapture the old appeal which had been previously dismissed. See Levanen v. Seneca Copper Corp., 227 Mich. 592; Anderson v. Ford Motor Co., 232 Mich. 500; Righi v. Robert Gage Coal Co., 269 Mich. 46; Hughson v. City of Kalamazoo, 271 Mich. 36; Roe v. Daily Record, 273 Mich. 5; Guss v. Ford Motor Co., supra; Tulk v. Murray Corp., 276 Mich. 630; Fitzpatrick v. Olds Division of General Motors Corp., 282 Mich. 646. As there is testimony to support the finding of the department that plaintiff is entitled to further compensation on account of a change in physical condition, we must affirm such finding.

Fawcett v. Department of Labor Industry, supra. This rule must be distinguished from our holding in Roe v. Daily Record, 273 Mich. 5, and Tulk v. Murray Corporation, supra, overruling Kirchner v. Michigan Sugar Co., 206 Mich. 459 . In the Roe and Tulk Cases we said that the department cannot set aside an award based upon an approved agreement on the ground that the parties made a mistake in the facts upon which the agreement rested.

See 2 Comp. Laws 1929, § 8812. — REPORTER. A search of the reported cases since this decision does not indicate that we have modified or changed this view of the duty of the department as expressed in the Wilcox Case. It is true that in Kirchner v. Michigan Sugar Co., 206 Mich. 459, we permitted the department to correct a mistake in the amount of compensation awarded, and in Roe v. Daily Record, 273 Mich. 5, held, at least by inference, that such a correction could not be made. Our attention was called to this discrepancy in Tulk v. Murray Corporation of America, 276 Mich. 630, in which we said: "If there is a conflict between the decisions, the latter overrules the former pro tanto."

Appellants cite several cases in support of their position which may be distinguished. Roe v. Daily Record, 273 Mich. 5, is not applicable because the only question was the power of the department to correct a mistake in a statement of weekly salary, there being no change in physical condition. DeBernardi v. Oliver Iron Mining Co., 271 Mich. 212, is distinguishable from the instant case, by reason of the department's finding of total disability on the intensification of the same causes of complaint upon which a previous finding of no disability had been based.

When an award has been made upon an application to review payments to stop or reduce compensation to the injured employee stopping or reducing the same, upon a subsequent application for rein-statement of compensation or for an increase in the award, it has been uniformly held the employee is not entitled to an award except upon showing a change for the worse in his physical condition. Adams v. C. O. Barton Co., 274 Mich. 175; Dyer v. McQuistion, 273 Mich. 327; Roe v. Daily Record, 273 Mich. 5; Martin v. Kalamazoo Vegetable Parchment Co., 271 Mich. 514; Runnels v. Allied Engineers, Inc., supra; McKay v. Jackson Tindle, Inc., 268 Mich. 452; Ammond v. Muskegon Motor Specialties Co., 265 Mich. 211; Kilgour v. Remington-Rand, Inc., 252 Mich. 657; Peet v. City Bakery Co., 238 Mich. 431; Klum v. Lutes-Sinclair Co., 236 Mich. 100; Burley v. Central Paper Co., supra; Beckwith's Estate v. Spooner, supra. These decisions are logical and consistent.

After hearing, the department found the facts as claimed by plaintiff and ordered a future increase of compensation for total disability on the basis of weekly earnings of $35 at the time of the accident, Defendant reviews. Defendant relies on the well-established rules that an approved agreement is a binding award, the department may not conduct rehearing of an award, but the remedy, if any, is in equity, Hughson v. City of Kalamazoo, 271 Mich. 36, Southern Surety Co. v. Curtis, 240 Mich. 566, and on the case of Roe v. Daily Record, 273 Mich. 5, in direct point. Plaintiff contends, and the department held, that the case is ruled by Kirchner v. Michigan Sugar Co., 206 Mich. 459.