dissent"> Potter, C. J.

(dissenting). Plaintiff sustained a compensable injury May 17, 1932. An agreement for compensation at the rate of $14 a week was made, filed, and approved by the department of labor and industry. July 18, 1932, a settlement receipt was filed. On hearing’ to approve that receipt, an order was entered disapproving the same, and continuing the compensation. October 10, 1932, another settlement receipt was filed, and approved October 29, 1932. A petition for further compensation was filed, and an award entered January 12, 1933, of $2 a week for partial disability. Later, a petition to stop compensation was filed, and an order entered denying the same. November 1, 1933, a supplemental agreement fixing compensation at 89‡ a week was filed, together with a petition for a lump sum settlement; and this supplemental agreement was approved and lump sum petition granted November 9, 1933, under which plaintiff was to receive $397.75. January 2, 1934, plaintiff petitioned for further compensation; an award, was made; and from this award, defendants appeal.

Appellants claim the department of labor and industry may not reverse or set aside an unappealed from award without showing a change in plaintiff’s condition; and the mere fact a lump sum settlement was made does not authorize the department to reopen and reverse the award and grant a petition for further compensation.

The petition of January 2, 1934, under which the award was made sets forth the date of the injury, and that since December 10, 1933, plaintiff has been disabled in the employment in which he was engaged at the time of injury, and is entitled to further com *333 pensation; that examination by a physician discloses he is suffering from ankylosis of the vertebra, with pressure on spinal nerves, resulting in neuritis and obvious deformity with impairment of motion, and accompanied by pain, from which he is now totally disabled. There was testimony to sustain plaintiff’s contentions.

It is claimed approval of a final settlement receipt constitutes an adjudication binding upon plaintiff, and bars an application for further compensation; and the burden was upon plaintiff to show a change in condition after the approval of such settlement receipt and showing disability resulting from the accident.

Plaintiff claimed total disability in prior petitions for compensation, but the department had held he was but partially disabled and awarded compensation accordingly. The proof shows plaintiff’s disability was of a progressive character. He gradually became worse. A finding by the department that plaintiff was partially disabled at one time is no proof he may not have been totally disabled at another time. Such finding by the department of labor and industry does not constitute former adjudication which prevented plaintiff from showing the facts. If it did, then if a workman were found by the department of labor and industry to be totally disabled, the opposite party would be precluded by such adjudication from subsequently showing plaintiff had recovered and compensation should be stopped.

The award of the department should be affirmed.

Edward M. Sharpe, J., concurred with Potter, C. J. The late Justice Nelson Sharpe took no part in this decision.

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