*1 431 Mich 714 ASKEW v ANN ARBOR PUBLIC SCHOOLS 7). (Calendar Argued Docket No. 78996. Decided October No. December 1988. compensation by Jessie Askew was workers’ benefits awarded hearing injuries in of her referee for sustained the course employment with the Ann Arbor Public Schools. The Workers’ Compensation subsequent Appeal separate affirmed. In a Board proceeding, original the board found that while the claim was pending appeal physical on there had been a in Askew’s before, hearing condition which occurred after the and the referee, by, award but before the and decision appeal, continuing the board on and that Askew was entitled to Mackenzie, P.J., Appeals, benefits. The Court of and Walsh JJ., unpublished opinion per Shepherd, reversed an curiam, finding plaintiff sought present, that the should have to proceeding, wcab review the first the evidence holding pre- that she was disabled and that the obtaining cluded continu- doctrine 82704). (Docket ing plaintiff appeals. benefits No. opinion by joined by Levin, Brickley, In an Justice Justices Supreme Griffin, Archer held: Court compensa- A worker who has obtained an award of workers’ required, pending tion benefits is not while the award is on Board, Compensation Appeal before Workers’ seek to the board evidence condition, which occurred after the award and which the supports separate worker claims a further and claim of benefits arising injury, from the same in order to avoid the bar of res right separate hearing preserve the and to claim. compensation hearing 1. An order of a workers’ referee is dispositive Compen- is taken to the Workers’ unless Appeal compensation provides sation Board. The workers’ act References 2d, Compensation seq. Am Jur Workmen’s 584 et §§ concluded, injury, recover for the same Matters action at law to proceed- finding decision or made in workmen’s ing. 84 1036. ALR2d 1988] Askew v Ann Arbor Public Schools if referee’s decision is filed with the a claim for review a may together such addi- wcab, the board hear the claim language may from the tional evidence as it allow. It is clear allow”) ("as and well the statute its discretion *2 that, plaintiff sought had to introduce addi- established the evidence, obligated to the board would not have been tional hear it. Although de novo the 2. a referee’s decision is reviewable board, by the follow the date of decision board does not purposes judicata. The reviews for of res board is determinative referee, its decision is conclu- the record made before the adjudicable, including of the matters the condition sive of all injured time the record was made. worker at the actually litigated judicata 3. The doctrine of res bars claims arising out of the same transaction that could as well as claims brought. question presented in this The case have been worker, application prevent of the whether the order to expand judicata, seek to the record to doctrine of res must change physical condition that oc- include evidence hearing the conclusion of the before the referee. curred after that, purposes of the The declared in this case board application judicata, of res the date of the of the doctrine before, hearing by, and decision the referee and not the date before, by, hearing the or decision the board was determinative. justice The administration of would not be advanced the requiring employee adoption of a rule the such evidence, supports employee where the claims that the evidence arising separate from the same a further and claim benefits judicata preserve injury, in order to the bar of res and to avoid right hearing separate to a on the further and claim. concurring, joined by Justice Boyle, Cavanagh, Justice public principles judicata stated that both the and sound require plaintiff precluded litigating policy that the not be change his of condition. plaintiff’s petitions present overlap of a substantial change proofs, petition on a witnesses and and the based transaction or occurrence as condition arose out the same general judicata, original petition. rule of res Under petitions. there is but one claim involved in both finality of that determines whether the It is the an award Although the doctrine doctrine of res will attach. proceedings, subject applies compensation it is in workers’ compensa- exception change physical A condition. of a injured adjudication of the as to the condition tion award is of all matters the time it is entered. It conclusive worker at time, adjudication adjudicable of the but it is not an at that preclude subsequent claimant’s future condition and does not showing original awards or modifications of the award changed. employee’s condition has case, plaintiff In this of condition on which the his second occurred after the decision of based regarding petition. referee his first Given the nature of the scheme, statutory neither could nor should have raised the issue of of condition of the referee’s decision. Riley, concurring, stated that a claimant of Chief Justice relitigate changed physical wage-loss condition benefits award, initial but which occurred after a referee’s Compensation Appeal Board. before a decision Workers’ relitiga- Because the doctrine of res tion, does not bar such unnecessary public policy it is to resort to as a basis for resolution. and remanded. Reversed Appeal Compensation Compensation — Board Workers’ Workers’ Change Physical — — Condition Res Judicata. award of workers’ A worker who has obtained an pending required, while the award is benefits is not *3 Board, Compensation Appeal to to seek before the Workers’ condition, change physical present in to the board evidence of a which the worker claims after the award and which occurred arising separate supports benefits from a further and claim of injury, and to in order to avoid the bar the same (MCL right separate hearing preserve on the claim to a 17.237[859]). 419.859; MSA Mor- Goodman, Eden, Millender & Bedrosian (by Kwitoski) M. A. Eden and Diane plain- ton for tiff. Ottaway, Ducey, Listman &

Conklin, Benham, L. Chuhran, P.C. Critchell), Martin for the (by defendant.

Amici Curiae: Rawlings Skutt, M. (by Richard & P.C.

Glotta, Skutt), E. Lister for Michigan Trial Susan and Work- Michigan Injured and Association Lawyers ers. Arbor Public Schools Askew v Ann

1988] Opinion of the Court is whether a question presented J. The Levin, award of workers’ who has obtained an worker to that on pending benefits must Appeal Board Compensation the Workers’ its review of wcab, during to present seek to in award, physical of a evidence the earlier condition, award, that after which occurred and supports separate a further the worker claims arising injury from the same claim of benefits preserve and to avoid the bar of res order separate the further and right hearing his to a on to required seek We hold that he is not claim. appeal. the evidence Appeal Board Compensation The Workers’ found, October, 1974, Askew was that Jessie 19, 1971, on and affirmed February injured November, 1972, awarding her decision referee’s 20, period February a closed benefits 1971, 26, 1971. July proceeding, separate

Subsequently, there had been found1 wcab after which occurred Askew’s condition award, November, 1972, but be- hearing the wcab and decision fore found in that award. The wcab review of that Askew was entitled proceeding second 1973,2 on the date in continuing benefits from a made a experts who of medical testimony basis of (i.e., wcab’s in 1973 before diagnosis 26, n 2. 1984. See On December 23, petition for on a benefits 1976. This award was based March rule, 418.833; 23, one-year MSA MCL 1977. The back filed March 17.237(833), explains why applied, were benefits 1973 date of than from the March rather awarded from *4 disability. stating petition, that the decision The referee dismissed October, November, 1972, judicata. in The wcab reversed was res 1978, hearing said the merits. The wcab on the and remanded for physical plaintiff’s condition prior "as to was res decision original.) hearing.” (Emphasis The Court through date of December, appeal in 1978. Appeals leave to denied 431 Mich Opinion op the Court decision in the first proceeding) problems arising from the that were not in 1972 injury evident the hearing when before the referee that resulted in the earlier award was held.3

An order of a referee dispositive4 can be and is Here, appeal unless is taken to the wcab. appeal Askew took an in the first proceeding claim, It the wcab. was her in 1974 rejected proceeding, in that the record made wcab before the referee at hearing first Novem- ber, 1972, supported an award of beyond benefits the five-month closed period they were awarded. found in proceeding the second wcab

there was evidence of a condi- evidence, commencing tion in 1973. That accord- ingly, part could not have made of the record been November, the time 1972. at of the first Schools, Askew’s the Ann employer, Arbor Public contends that because the evidence was additional available in 1973—while the referee’s deci- on to the wcab— pending sion was still sought Askew should have the addi- in the first tional evidence the wcab review in that proceeding before the 1974 wcab decision proceeding was made. if provided

The workers’ act of a referee’s a claim for review the wcab' filed, parties, ”may decision wcab hear benefits, stating remand, denying the referee entered an order On worsening in Askew’s condition. On that there had been no 1984, disagreed appeal, wcab, order dated December and, decision, continuing benefits in a two to one awarded the referee from March 23, 1976. 28, 1985, granted Appeals March leave to The Court of granted appeal, limited to 1986. We leave to reversed on June application in this case. of the doctrine the issue Schools, 399 NW2d Ann Arbor Public Askew (1987). 3November, 1972. 17.237(863). 17.237(851), 418.851, 418.863; MSA 4 MCL *5 719 v Ann Askew Arbor Public Schools 1988] Opinion of the Court together with such additional as it in evidence its may discretion allow them to . . . .”5 submit Appeals agreed Court of with the Ann Arbor Schools Public Askew should have sought to present the evidence that she was dis- abled from in 1973 a date to the wcab its review in proceeding the first and held that Askew precluded doctrine of res from judicata obtaining continuing benefits. The Ap- Court of peals this in Gose v Monroe observed that Court Co, Auto Equip 147, 160-161; 409 Mich 294 NW2d (1980), 165 had said in effect "that doctrine judicata res bars claim which a in a worker’s case could brought, have but did not.”6

Ann Arbor Public Schools argues that when an is taken referee’s decision to the wcab, the decision of the wcab and not the deci- sion of the referee is the "award” within the meaning this Court’s Gose of its repetition earlier statement Hlady Wolverine Bolt 375-376; (1975), 224 NW2d 856 " 'that a compensation award is an adjudication as to the condition of the injured workman at time it is entered, and conclusive of all matters ” adjudicable at that time.’

In neither Gose nor Hlady, however, did this Court question focus on the presented, now whether the "time” of the award for purposes is the date of the decision by the referee or the date of the decision wcab where an intervening change in physical condition may, as recognized passage in the from Hlady quoted in 418.859; 17.237(859). MCL MSA The statute was amended quoted phrase PA "may parties, together now reads: hear the such additional evidence . allow . . .” Schools, unpublished Askew v Ann Arbor Public opinion per Appeals, (Docket curiam the Court of decided June No. 82704). 431 op the Court justify of benefits or

Gose,7 a further award previously payment stopping en on an award tered. Hlady Gose

This Court’s decisions actually claims bars the doctrine litigated *6 arising the same out of and also those not, been, but were that could have transaction question brought a whether address the does not that a referee’s award who has obtained worker pending to to the must seek on wcab present, of the earlier the review wcab’s sepa- support a further and award, in evidence change in of a benefits on the basis rate claim for physical referee’s after the condition that occurred injury arising the to avoid from the same award right preserve judicata a to and his of res bar separate hearing claim. on the further policy judicata general doctrine8 nor res Neither "7 appli upon general respect to the effect rule with 'The principles to decisions under cation of the acts, authorizing compensation provision the the workmen’s showing in of a an modification of employee’s adjudication award condition, award is an is that a injured at the to condition of the workman as entered, adjudicable at of all matters and conclusive time it is time, adjudication to the claimant’s not as but subsequent preclude or awards does not future condition and showing original upon a subsequent award modifications of the changed. .’” physical . . employee’s has condition 368, 375-376; Hlady 224 NW2d Bolt 393 Mich v Wolverine (1975) Hlady). (emphasis supplied v Monroe Auto [Gose 160-161; (1980).] Equip, NW2d Merger Purposes of or Bar —Gen for Dimensions of "Claim” Concerning "Splitting” Rule eral (1) judgment rendered in an action final a valid and When extinguishes pursuant to the rules of plaintiffs claim (see 19), extinguished merger includes the claim or bar §§ against rights to defendant of the remedies all transaction, any part respect series to all or of the transactions, arose. of which the action out connected "transaction,” (2) grouping constitutes factual What 1988] Askew v Ann Arbor Public Schools Opinion of the Court requires preference one result to the other. Requiring claiming a worker further benefits anor employer claiming payment should of benefits stopped present to the wcab seek evidence of a dur- condition that occurs ing pendency of an thereto would not long be unfair as sufficient time remained to do request pres- so ent the before ruled and the wcab delay unduly would ulti- evidence case, however, mate decision. the instant employer indicated that the worker or is not wcab required peal. ap- to seek to such evidence that, The wcab declared the instant case purposes application of the doctrine judicata, hearing the date of the first and decision referee, November, before the 1972—and not the date of the before or the decision the said that the wcab—was determinative. wcab November, 1972, decision was res "as to *7 plaintiffs physical through condition the of date ******9 hearing.” (Emphasis original.)* That declaration may of the wcab reflect an assessment of the groupings "series,” what a constitute to are be determined pragmatically, giving weight to such considerations as whether time, motivation, space, origin, the facts are related in or they unit, whether treatment form a convenient trial and whether their parties’ expectations aas unit conforms to the or understanding usage. Judgments, business or Restatement [1 2d, § p 196.] recognize expressed opinion We may the view in this wcab by is, however, not be decision of all shared of the members wcab. There no contrary. the to the wcab Ann Arbor Public Schools relies on the of a statement member of concurring opinion case, stating wcab who filed a in another the procedure employee condition after this employer, case, to be followed when an an petition a files new on the basis of a by initial decision and award or denial a referee. In petition no case such was filed. regard noteworthy We that the wcab’s decision in the instant case, question petition on the a whether to take additional evidence wcab, during pendency must be filed with the of the the before 431 Mich 714 op the Court petitions present frequency addi- to granted by wcab, the are the tional evidence likelihood of granted, routinely petitions delay if such are problems systemic or substantive or the might develop the if the determinative date is that date hearing (or by a the the date of wcab decision preceding the wcab or a date

before hearing). ("as language of the statute It is clear from allow”)10 estab and well

it in its discretion sought to introduce lished that had Askew additional obliged evidence, not have been would wcab 11Adoption it.* the rule advocated to hear not, unless the Public Schools would Ann Arbor routinely grant petitions to submit to wcab were a evidence, in the result economies additional single adjudication Ann Arbor visualized Schools. Public adopt by the the rule advocated

If to we were operative Schools, it have Ann Arbor effect would Public grant only to in cases where wcab chose petition and in to additional evidence a submit petition filed. those where no such was cases filed and the wcab where a was cases evidence, the worker declined to receive additional clearly to before be entitled would it, has been a bar of res where there avoid the during pendency appeal, physical the written condition signed by four other members without of the wcab and chairman qualification. accompanying n 5. See text to bar a claim has been invoked When the doctrine generally applied, presented, party against has been whom it not right opportunity invariably, as of had an if not has case, presented, Askew so. In the instant but failed to do claim did not continuing right present a benefits have claim for to the wcab from the 1972 referee decision. the course While we do not her *8 predicate that she did not have on the basis decision claim, right to be understood as so her we do not wish a intimating respect may be invoked doctrine presented presented as of where the claim to a claim not right. 1988] Askew v Ann Arbor Public Schools Opinion op the Court regarding separate referee a further and claim to benefits.

Adoption making hearing of a rule the date of by might produce award the wcab determinative a "protective” petitions mountain of additional routinely by would be denied the wcab and be- litigation come a source of considerable in those petition ques- cases where a was not filed protective required tion whether a be filed. provides

1985 PA 103 a new administrative procedure adjudicating for contested claims for compensation. Applications workers’ for filed after March are to be a heard compensation magistrate workers’ rather than a magistrate’s referee. An from the decision newly is to be taken to the established workers’ compensation appellate commission in lieu of the provides phasing Act for the out wcab. functions of the referee and the wcab. The wcab reviews decision of a referee de novo.12 The findings magistrate of fact of a are to be consid- supported by ered conclusive if commission competent, material, and substantial evidence on whole record.13 procedure

Under the new established Act taking 103, authorization for the of additional physi- evidence on review to establish a appellate cal condition has been eliminated. The "may commission remand to a matter worker’s compensation magistrate purposes supplying complete if record is determined that purposes record is insufficient for of review.”14The 418.859; Marquette 17.237(859); See MCL Kostamo v MSA Iron Mining (1979). 105, 135; 274 NW2d 411 17.237(861a). 418.861a; Dep’t Civil MCL Service Comm v MSA See Labor, (1986). NW2d 728 17.237(861a)(12). 418.861a(12); 14 MCL MSA *9 431 op the Court purposes under for date

determinative hearing procedure the before the will be the new Legislature magistrate. an has enacted The thus system adjudicating contested administrative clearly compensation that does claims for workers’ taking contemplate evidence of additional change has been a there on physical where adopt the new were to If we condition. by Schools Ann Arbor Public rule advocated in the instant of the wcab reverse decision and case, hearing only where a those cases affect would April sought 1, 1986. before was Although de is reviewable referee’s decision a date follow that the it does not novo wcab,15 for res the wcab is determinative of decision judicata purposes. reviews the record The wcab is The wcab decision made before the referee. " [including adjudicable, all 'conclusive of matters injured worker] [the] at the condition time’ presented ”16 question here that record made. prevent must, to the worker whether judicata, application seek to the doctrine change expand of a include evidence that record to physical the refer- that occurred after condition hearing was concluded. ee’s hearing making Adoption rule the date of a could work wcab determinative award employers against has If there been in other cases. change physical of a worker in the condition receiving pursuant of a referee to an order benefits stop-pay- employer seek an or the wcab, injured to hold that ment order. If we were present required of a to seek evidence worker occurring change between condition hearing before the referee’s award and might required employer also be then an wcab, 15 n 12. See 16 Hlady, supra, 376.

1988] Askew v Ann Arbor Public Schools Opinion of the Court seek to of a evidence in condition justifying stop-payment order17 where the em- (or ployer aware) possibly , was aware should have been condition between the hearing. referee and the wcab Having confronting difficulty in mind the disposing backlog wcab in subject still cases *10 jurisdiction, adopt to its we decline to a might rule new that further to its add burden and problem exacerbate the with which it is confronted by requiring injured employers workers and to file petitions seeking present change a evidence of physical condition, in which occurs between the hearings, referee and the wcab to the wcab possible judicata its review to avoid a res determi- adopt nation. rule, Were we to such a the wcab deny petitions. could all such Then a decision of adopting this Court more filed such a rule would have added (in paperwork petition cases where a was denied), (in trap unwary and a created for the petition filed), cases a where not was and a become litigation magistrates, appel- source of late for the the commission, well, and the wcab as who would upon in called cases where a was not particular peti- whether, cases, filed to assess in a present tion to such evidence should have been filed with the wcab. persuaded

We are not that the administration of justice by adoption would be advanced of a rule requiring employee of evidence a physical condition, which occurred after supports award, the worker claims a separate arising benefits, further and claim of injury from the same in order to avoid the of bar preserve right hearing res the further and his to a on separate claim._ 17Payment seventy percent weekly of benefits awarded required during pendency referee is of an to the wcab. 17.237(862). 418.862; MCL MSA 431 Boyle, J. Askew’s although both emphasize

We Askew’s claim injury, out of the same claims arose was proceeding based the second that occurred after condition proceeding first had before the referee separate and gave rise to a claim concluded which proceeding. in the first from her claim distinct Appeals the Court of We reverse the decision of the cause to and remand wcab. JJ., concurred

Brickley, Archer, Griffin, Levin, J. City Wyo- In Pike Boyle, (concurring). J. ming, (1988), a 589; 433 NW2d despite prior, held that of this Court majority bureau, the doctrine award of benefits final preclude the defendants did not plaintiffs wife’s the issue relitigating in Pike expressed my It view dependency. decision, had based its majority of this Court an ad judicata, upon but the law *11 Pike, I in policy. my dissent public hoc notion explained: ex- public policy so matters of There traordinary justify departure to a from res as However, vague a court’s no-

judicata principles. though benevo- tion of lence in substantial cided cases are motivated "fairness” — particular justify a the case—does injustice finally results when de- negates the reopened. Such a view expectations of the bar on which client advice predicated and decision-making corrupts pro- (Boyle, J., [Pike, supra, pp 630-631 cess of dissenting).] court. step one of this Court takes Today, majority Pike, law public abandoning both beyond majority its decision. The a basis for policy as holding as follows: prefaces its Askew v Ann Arbor Public 1988] Schools Boyle, J. general Neither judicata res doctrine policy nor requires one preference result to the other. [Ante, pp 720-721.] I agree with the majority that the doctrine of judicata res not preclude1 does plaintiff litigating However, his 1973 change of condition. to contrary I majority, believe that both the principles of res judicata public policy sound require this result.

i Recent judicata deviations from the rule of res notwithstanding,2 Michigan does follow the broad rule of regard to workers’ com- claims. Gose v Monroe Auto Equip pensation (1980). 294 NW2d 165 Under this rule: judgment

When valid and final rendered an extinguishes action plaintiff’s claim pursuant ., merger the rules of . bar . claim extinguished rights includes plaintiff all of the against respect remedies the defendant with to all or any part transaction, or series of con- transactions, nected out of which the action arose. 2d, Judgments, 24(1), p Restatement [1 § 196.]_ merger 1 1am inclined to believe that it doctrine which is issue, at since order bureau in favor of the on 2d, continuing disability. Judgments, the issue of See 1 Restatement 18, p 151; 19, p cf. § § 161. Pike, supra, p As a basis for his decision Justice Griffin general exception has cited either a in the law as a to res possibility any or the collateral attack on the amount of benefits, opposed benefits, presents excep to the entitlement Brickley judicata. Similarly, tion to res Justice has his based decision Pike, supra, p 607, suggestion unspecified that there was an *12 "changed circumstance” that in context must be the conclusion that differences, Despite appears the statute is unconstitutional. these it agree judicata applicable that all would to that the broad rule of is res proceedings. these 714 431 Mich 728 Boyle, J.

Thus, the rule of of the Restatement formulation upon judicata of the transaction out res focuses designates the date the action arose and which a "final attaches to judicata judgment” which res as that claim. assump- majority is the initial error of the

The may simply judicata be rule of res tion that a majority grafted decision of choice. onto the reasons: Hlady Bolt In neither Gose nor Wolverine [v 368; however, (1975)], did 224 NW2d 856 Mich question presented, Court focus on now

this whether the "time” of the award for by the referee purposes is the date of the decision where an or the date the decision wcab may, intervening change in physical condition quoted in recognized passage Hlady Gose, stopping or the justify a further award benefits previously en- payment on an award [Ante, pp tered. 719-720.] literally of these it is true neither While judi- the "time” at which res decisions sets forth cata time, attaches, reason is that finality determines whether but the state Hlady major- applicable. Thus, res ity explained: finally fact law have been issues of "Where competent jurisdiction one decided court of the mainte- legal nance that are essential action which action, universally legal it is held of another supra, [Hlady, p must fail.” the second action added), quoting approval Jones (emphasis (1958). Chambers, 674; 91 NW2d Ins, Home Life See Cohen v also Judg- (1935); Restatement 263 NW ments, 2d, 13, p § 132.] speci- Compensation Disability Act The Workers’ taken from a claim of fies that *13 729 1988] Askew Ann Arbor Public Schools by Opinion Boyle, J. hearing either the decision of the referee3 or the appeal expiration board.4 At of an appeal final, period, Saginaw is decision Abbott v Ice 462, (1938), & Coal 21 280 NW may be enforced circuit court. MCL 17.237(863). 418.863; MSA Here, hearing referee’s a decision awarded period wage-loss compensation closed to the on plaintiff plaintiff December 1972. The a filed timely appeal appeal claim of with the board. On 28, 1974, appeal October board affirmed the decision of the hearing referee. appeal No was taken Instead, from the board’s decision. 23, 1977, later, March more than two years plaintiff wage-loss filed a new claim for compensa- tion with the bureau. Her alleged new condition preceded the appeal by board’s decision two nearly years.5 only The final decision this matter is that of the appeal board dated I agree October 1974. generally with the Appeals Court of conclusion ”the doctrine of a claim bars

3 17.237(851) 418.851; provided: MCL MSA hearing assigned any hearing The referee in accordance provisions inquiries with the section shall make such investigations necessary. hearing as he deem shall locality shall injury be held at the where the occurred and the hearing order of the referee shall be filed with the bureau. by party days, Unless claima for review is filed within 15 order shall stand order of the bureau. 17.237(861) 418.861; provided: MCL MSA appeals supreme power The court of and the court shall have questions any to review of law involved in final order of the board, [appeal] application aggrieved party if is made days by any permissible within 30 under the rules of the courts of the after such order method this laws of state. fact, appears alleged plain it the date for the condition, ultimately board, 6, tiffs and that found decision, the date of the referee’s initial December 1972. Mich Boyle, J. case which a in a workers’ brought, To more but did not.”6 be could have precise, however, is but one "claim” which there single occurrence, from a transaction arises although number of differ- based reality Thus, one if in there but ent theories.7 alleged appeal, in the in this claim involved plaintiff’s petition merged first with her second *14 general judi- precluded the rule of res and under cata. aspects question essence, the

In there two are petition presented by delayed Jessie Askew’s wage-loss compensation of a further on the basis question first of condition. The whether petition upon delayed the same claim the as that is based plaintiff’s underlying the first and Schools, per unpublished opinion Askew v Ann Arbor Public (Docket Appeals, of of decided No. curiam the Court June 82704). 2d, 24, a, Judgments, explained comment As in 1 Restatement § pp 196-197: "Claim,” judicata, the has never context of been But broader the transaction to which it related. than days procedure imprint civil still bore forms when equity, action law and the courts were and the division between to associate claim with a single recovery, prone that, theory of so transaction, might respect plaintiff have as with to one many which feated in an action based on one upon as there theories the substantive law claims were Thus, against seek defendant. de- he could relief theory, might be theory, able to even identical situation. action based on a different maintain another grounded upon though defendant’s both actions were single forming or acts life- act connected . . . claim terms and to The trend is to see in factual regardless of the make it coterminous number of substantive flowing the transaction theories, or forms of relief variant theories, may be available to the from those rights may plaintiff; primary regardless of the number invaded; regardless in the of the variations have been and rights. support transac- needed to theories or evidence tion is litigative entity unit the basis split.

be 1988] Askew v Ann Arbor Public Schools Opinion by Boyle, J.

thereby extinguished under the doctrine of merger. Judgments, See 2d, Restatement 18(1), pp question §§ 151-152, 196. The second assuming whether, is any claim, there is but one exception applica- to the rule of res generally, Judgments, See, ble. 2d, Restatement pp question § 26, 233-234. In neither is the "time” of dox both, the final decision determinative. ortho-

principles judicata may applied just practical reach a resolution of this dis- pute.

ii That resolution this matter should turn ini- tially what constitutes a "claim” in workers’ compensation proceedings surprising. is not It was essentially majority this issue which divided the concurring opinion from the of Justice Levin Hlady majority and the from Justice Levin’s dis- question sent in It Gose. is unfortunate that forthrightly Hlady was not Gose, addressed in resulting generated since the pluralities confusion has *15 supra, Riley Pike, and v Northland Center, Geriatric 433 NW2d 787 (1988). question particu- Nevertheless, this not is larly recog- difficult to resolve once it has been nized. judicata,

Under the modern rule of res what constitutes a "claim” is determined reference to transaction or occurrence out of which the injury explained Judg- As arose.8 in 1 Restatement 24(2), p ments, 2d, § 196: grouping What factual constitutes a "transac- tion,” "series,” groupings and what constitute pragmatically, giving weight are to be determined 7. See n Mich 714 Opinion by Boyle, <J. to such considerations as whether the facts are time, space, motivation, origin, related or unit, they whether whether form a convenient trial and their treatment as a unit conforms parties’ expectations or understanding business or usage. plaintiff’s claim in this instance is for dis- wage-loss ability, compensation.9 Thus, or if the plaintiff’s out of which "transaction” claim arose disability, plaintiff’s it his claim arises out of a distinct transaction rence. would follow that second

or occur- However, I further reflection do that there are two "transactions” or believe claims in this instance. Judg- explained

As further in 1 Restatement p 2d, 24, b, ments, § 199: comment general, expression a natural connotes operative or grouping common nucleus facts. to a Among the factors relevant determination together are so woven as to whether constitute facts single claim their relatedness in are motivation, whether, time, space, origin, or together, they form unit for taken trial native, appropriate in witnesses a convenient Though single determi- purposes. no factor is the relevance of trial convenience makes proofs how or ask far witnesses overlap tend second action would If proofs or to the first. there is relevant overlap, should the second action a substantial precluded. opposite But the does ordinarily be held true; when there is not a substantial not hold even precluded if it overlap, the action second same transaction series. stems overlap Here, of witnesses substantial there not all under the Workers’ Disabil It claims should be noted wage-loss ity Compensation benefits. Medical rehabili Act are for 17.237(319), benefits, 418.319; benefits, MCL death MCL MSA tation 418.321; benefits, 418.361(2); 17.237(321), specific-loss *16 MCL MSA 17.237(361X2), provided under for the act. are also MSA Askew v Ann Arbor Public Schools 733 1988] Boyle, J. proofs. Indeed, and other it is in the nature of a petition compensation upon change for based a of probative testimony condition the most will experts be that of who have examined claim- prior petition ant both change and after the a for long- of condition. This from the follows although wage-loss compen- that, established rule paid "wage earning sation is capacity,”10 for a limitation of only petition upon in a issue based change physical a condition is condition of injured Wyandotte worker. Hood See Oil & (1935); Co, Fat 272 Mich NW White v Michigan 201, 210; Consolidated Gas (1958) (White II). Larson, NW2d See also (on Compensation, p §81.00, Workmen’s 15-528 reopening condition, for no other issues relitigated, and the claimant’s evidence directly upon comparison must bear between present disability). his former and dispute that, There also can be little if the appeal initial board had allowed been plaintiff’s access to the testimony petition second based, the sum total would have been more package convenient for resolution of the factual questions presented by petitions.11 both The com- underlying petitions mon factual issues both are predominant. must, instance, The board for understanding injury, have an nature of presented testimony as well as the medical at the hearing. initial

Naturally, complete identity there will not be a underlying petitions. of factual issues both 10 See, comment, Michigan generally, Disability under the worker’s (1985). act, 62 U Det L R 433 that, effect, say requiring This is not to board grant alleged testimony additional on the basis procedural is the more efficient method condition addressing questions. part these See hi. *17 734 431 Mich 714 Opinion Boyle, J.

underlying of entitlement12 not factual issues need Similarly, simply when the issue be revisited.13 wage-loss surrounding compensation, factual issues specific-loss medical, rehabilitation, benefits However, be irrelevant.14 it seems to me an inescapable petitions present conclusion these proofs overlap a substantial of witnesses and petition change of further that a based the condition arises out of same transaction original petition. I occurrence as the would there- general that, the res fore conclude under rule of judicata, there is but one claim involved both dispositive ques- petitions. my mind, Thus, to the Jessie As- tion involved the whether compensation under kew’s falls second merger exception any recognized to the doctrine judicata. general res under the rule of hi Among recognized exceptions to the doctrine the merger "it is are circumstances [statutory] scheme sense split permitted 1 . ...” his claim should be injured requires four ele worker to establish Act employer for the be held liable worker’s ments before an injuries. will Second, First, personal injury. there must be employment. injury Third, in the out of and course must arise Last, injury. employer notice of the must have compensation employee within make a formal claim for must p [Comment, supra, period. 436. statutory n Citations deleted.] the rule 431 does previously 1 Restatement While rule of collateral preclude litigated plurality 429 NW2d Judgments, estoppel relitigation mesc of the Court in workers’ has hearings). 2d, 27, p not of factual (1988) § yet in Pike and been abandoned. compensation (doctrine 250. Cf. issues in circuit court Storey Meijer, of collateral Riley proceedings, has abandoned See, generally, estoppel when Inc, n 9. See Askew v Ann Arbor Public Schools 1988] Boyle, J. Judgments, 26(d), p 2d, §

Restatement 234. It is in place Michigan I this context that would rule judicata regarding compensation workers’ claims: adjudication award is an injured as to "[A] the condition of the workman at the time entered, it is adjudi- and conclusive of all matters time,

cable at that but it is not an adjudication as to the claimant’s preclude subsequent future condition and does not *18 subsequent awards or modifi- original cations of award showing the employee’s physical changed.” condition has [Gose, supra, pp 160-161. Citing approval Hlady v supra, Wolverine Bolt pp 375-376. Emphasis supplied in Hlady.] emphasize practical analy- I that, would under the Hlady ses of analysis Gose, as well as the theoretical Judgments,

of the Restatement 2d, apply doctrine of res does to workers’ compensation proceedings, although subject it is long-established exception for a physical condition. my constantly view, we must be aware of and legislative purpose

faithful creating to the compensation remedy. workers’ In the context of a judicata challenge much earlier to a explained: condition, this Court Obviously, plaintiff had no cause of action against his employer in the sense of the common law, any thereto, amendment split. Proceed- ings under the compensation workmen’s act have nothing to do with common-law actions for dam- ages negligence part on of the employer. Its enactment marked the crystallization legis- into a lative enactment of the economic fact ultimate pays consumer compensation for the injured employees in increased cost of the 431 Mich 714 Boyle, J. damages. It not compensation, It at product. aims displaces in character and wholly substitutional negligence. It should liability for common-law of a as insurance substantially administered action law or Claimant had no social character. Proceedings under equity against employer. his purely statu- compensation act are the workmen’s tory, not judicial, inquisitorial, not administrative, — — of, litigation and contentious, disposed — summarily. Most of the judgment, but ultimate in the administration now encountered

difficulties compensation act arise the workmen’s of injudicious in, attempts, acquiesced sometimes act engraft upon the workmen’s spirit its theories at variance with common-law and intent. 607, 609-610; Co, 285 Mich v Ford Motor [Hebert (1938).] 281 NW legislative purpose faithful to we must be While underlying statutory to the scheme and attentive compensation, also be aware we must workers’ Legislature in a vacuum. does not work Legislature presumed to be aware People existing Cash, Court, decisions of the (1984), Michigan 241; 351 NW2d Mich Gas NW2d Storage Gregory, 34, 37; 67 Co v *19 (1954), procedure fall and matters of exper power uniquely within traditional e.g., judicial See, St John v of the branch. tise (1951). 148, 158; 49 Nichols, NW2d procedures fleshing set Thus, out the skeletal Disability chapter Com 8 of the Workers’ forth in seq.; pensation MSA Act, 418.801 et MCL 17.237(801) give seq., con careful we must also et long-established, slowly cured, to sideration procedural In the the common law. doctrines "injudicious language Court, it is of the Hebert engraft upon attempts com the workmen’s ... pensation at variance theories act common-law spirit we must avoid— and intent” which its with 1988] Askew Arbor v Ann Public Schools Boyle, J. attempts rely upon proce- not all dural rules. common-law plain- Here we are asked to decide whether the tiffs based condi- resulting continuing pre- disability tion in a though cluded even of condition oc- curred after the decision It of the referee. is ar- gued by merger the defendant that the doctrine of precludes petition, though this even the issues it raised could not have been raised before the hear- ing plaintiff might referee because the have raised subsequent these issues her administrative presented appeal. If the could have this might agree plaintiffs claim, I claim would be barred under the rule of res as set forth Hlady Upon and Gose. examination of the entirely statute, however, I am unconvinced that plaintiff either could have should have raised appeal these issues before the board. majority opinion, appeal

As discussed in the formerly statutory authority board had to allow taking of "such additional evidence as it in its may discretion allow . . . .” 418.859; MCL MSA 17.237(859). controlling statutory language This provides has been modified PA which may parties, together "[t]he board hear the such additional evidence it 17.237(859). allow . . . .” 418.859; MCL MSA majority opinion only upon language focuses 418.861a(12); 17.237(861a)(12), MCL MSA applies not to board, but to its succes- appellate sor, the stances, I find it neither commission. Under the circum-

necessary nor instructive speculate scope appellate as to the com- authority taking testimony. mission’s additional I believe is sufficient to note that Legislature discretionary itself has considered the authority. Naturally, nature of the board’s *20 431 Mich 714 Boyle, J. Legislature I the was aware would assume 103, 1985 PA well as when enacting when issue, meaning at what this enacting language Cash, Court attached to the word "discretion.” has Co, Michigan Storage supra. Spalding Gas See also (1959). Spalding, 382; 355 Mich NW2d I agree majority discretionary with the appeal peti- nature of the board’s over authority tions for additional limits testimony practically present new issues ability any party appeal. We should consider the exceed- scope narrow of a ingly of review the denial petition for additional testimony deciding when can and therefore must parties present whether appeal these issues before the board. deciding plaintiffs whether claim should precluded by merger, doctrine of we must

also consider controversy our Court Appeals scope over the of review accorded the Kingery v Ford Motor board. Cf. (1982) (review 606, 614; 323 App NW2d permit raising de novo does not of a new issue earlier), with Roberts v not presented Marquette General Hosp, App (1983) (it 338 NW2d 393 within the board’s de novo review authority consider issues raised). Moreover, not previously we must consider powerful disincentive claims delaying these in the presented one-year back rule of MCL § 17.237(833)(1).15 418.833(1); MSA We must consider general well-recognized but thesis that work- 833(1) provides: Section made, compensation payment If other than medical expenses, application compensation for further and an is later bureau, any filed with the period no shall be ordered for year prior filing which is more than 1 to the date of application. such *21 1988] Askew v Ann Arbok Public Schools 739 Opinion Boyle, J. compensation proceedings ers’ are intended to be summary proceedings administrative rather than litigation. supra. contentious Hebert, Finally, deciding whether the doctrine of merger precludes plaintiff’s petition, second we prior must consider our own decisions in this area. presented fact, the identical issue in this case previously considered and resolved in White v (White II). Michigan supra, Co, Consolidated Gas Michigan In White v Co, Consolidated Gas 342 (1955) (White I), Mich 69 NW2d 160 a unani- mous Court held that was entitled to period compensation May a closed 21, 1951, 7, until November 1952. The case was re- entry manded for Supreme of an order consistent with the opinion. 9, Court’s On June three plain- months decision, after this Court’s the same petition alleging change tiff filed a new of condi- tion case, dated November 1952. inAs the instant alleged

the date of the of condition expiration White coincided with the of the closed period previously adjudicated. As in the instant alleged pre- case, actually of condition appellate ceded the date of commission’s initial decision.16 appellate

The commission nonetheless ordered continuing compensation from the date of the change of condition. This Court affirmed White explaining: II,

We deal in this case with tempo- an instance of rary situation, total disability. In such a the device employed by ordering board in payment compensation board, until further order of the we have many approved. times Hovey v General Co, Construction 233 Mich 531 852 [207 NW 16 appellate statutory predecessor commission was the Compensation Appeal current Workers’ Board. 431 714

740 Boyle, J. Co, Michigan Railway v Electric Warner (1926)]; 248 Mich 60 Pretzer v State (1929)]; 887 NW [226 Hospital, Psychopathic NW [282 Co, Briggs Mfg Lynch v (1938)]; NW2d 329 Mich 168 [45 (1950)]. finally rights determine Such an order does not compensation. stop, A to decrease or to to increase order to show circumstances ant’s the last date of always permissible concerning a claim- changed from condition which have Wyandotte v & Hood Oil hearing. Co, supra; Morgan Wright & Fat Catino Kelsey Goines v (1935)]; Mich 154 NW [261 Co, 294 Mich 156 Hayes Wheel NW [292 *22 Indeed, (1940)]. nature of the plaintiffs age in view of and the injury, hoped it is to time or further ther consideration of this case. treatment occasion still fur- medical will believe that what has been said serves We appellant’s previous answer order of this Court contention Michigan in White v Consoli- Co, supra, dated Gas judicata was res as to com- pensation claimed between the dates of November (the date) 7, previous 1952 referee’s (the 4, previous appeal June 1954 board order date). II, 352 Mich [White 210-211.] in Mor- Indistinguishable presented facts were also Artcraft, gan v Freedman 54; 401 Mich 257 NW2d (1977), Court, following 85 in which a unanimous II, White judicata preclude held that res did not subsequent petition. II, of White subsequent treatment casts aspects opinion,

some doubt other of the although specific ruling in its on res my view Sanford v See, e.g., Ryer- remains intact. judicata Inc, & 630, 637; Haynes, son 396 Mich 242 NW2d (1976) (rejecting White IFs use of a "compe- tent” over administra- evidence standard review finding). Perhaps problematic tive fact the most Gose, of White II was treatment in where explained: majority Askew v Ann Arbor Public Schools

1988] Boyle, J. "While the doctrine of res apply does (Willis compensation Michigan v workmen’s cases Standard Alloy Casting, 367 Mich 140 NW2d [116 (1962)]), Michigan it has been limited to issues actually litigated that were as a matter of Co, fact. Hebert v Ford Motor [281 (1938)]; Michigan White v NW Consolidated Gas 352 Mich 201 (1958)].” NW2d 439 [89 A reading of both Hebert and White shows close opinion that neither unique delineated a rule workers’ proceedings; they merely application rule, recited a narrow op- posed over, version, to a broad discussed infra. More- case, each inapplicable: separate two injuries involving separate two trans- Hebert, actions were at and White issue in final determination on the merits had not been proceeding. [Gose, supra, p made first n 1. Quoting Stokes Lakey Foundry approval Corp, App 173 NW2d 832 (1969).] fact, as can be seen in a of White reading close II, I and White there decision, was a "final” al- though the matter was remanded by this Court entry the order of the appellate commission. II, Thus, White actually petition, involved a new prior collateral attack on the adjudication. Furthermore, Gose majority although *23 adopted a broad rule of res judicata, the narrow rule set forth in White II was an alterna- merely II, Thus, tive basis for in White holding. its it was explained: further Obviously, period in the between the referee’s decision, appeal board the crucial pertaining facts disability to could to the advantage party any adjudication either without change. recognized such This in was board, appeal ending order of the ther ment.” "until fur- compensation depart- order of the workmen’s [Id., p 211.] 431 Boyle, J. reasoning, my

Indeed, view, and not a in it is this explains judicata, rule narrow of res holding, question plaintiff’s White II since the litigated continuing disability actually in the prior proceeding. reasoning fully II is

The of this Court White exception to the doctrine of consistent with the merger Judgments, 2d, set forth in 1 Restatement 26(d). Moreover, § I that White II is indis- believe tinguishable Given the na- from the instant case. statutory simply scheme, ture of this it is unrea- suggest could have sonable to or should have either presented her on the basis appeal of condition to the board appeal penalty Indeed, first under of forfeiture. pointed majority out, has there is little sense burdening late date board at this protective petitions. with an avalanche of irony doing so in furtherance of a rule judicial economy inescapable.17 is lying general reasons,

It is for these within public policy, I doctrine and sound holding majority. The decision concur of the Court of

Appeals should reversed and the be award of the should be reinstated. board J., concurred with J._ Cavanagh, Boyle, commentator, explained by finality As one is promote judicial economy: intended to good place analysis A to start critical of the whole matter question: compelled join why party

with the should not a may join? Surely something it all the claims which to be clean, gained wiping urged and it has been slate require parties invoke its the law should this result when processes disputes. some of their there will settle Wherever held, large overlap be a of issues or evidence if two trials are society harassing adversary is wasteful to the to have one, more than there is some and there should be no more than one unless Hazard, very good & Civil Proce- reason. [James (3d 11.8, ed), original.] pp Emphasis 599-600. in the dure § *24 Arbor Public Schools v Ann Askew 1988] Riley, C.J. with (concurring). agree major- C.J. I

Riley, As- preclude that res does not Jessie judicata ity changed physical her condi- from relitigating kew As- holds that Jessie The majority correctly tion. benefits, wage-loss for second kew’s condition, changed consti- physical out of a arose However, sepa- I claim. write tuted a separate because, although majori- I with the agree rately the conclu- supporting policy considerations ty’s aof relitigation does not bar judicata sion res condition,1 I dis- a claimant’s holding majority’s with the agree "[n]either requires doctrine nor policy res general Ante, pp other.” to the preference one result reliance opinion, 720-721. my reliti- Askew from preclude would not Jessie alone Thus, un- her condition. changed physical gating unnecessary to resort I find like majority, this resolving case. as a basis public policy Therefore, agree majority I physical condi- relitigate changed claimant referee’s after tion which occurred award, of the Work- initial but before the decision I Appeal Accordingly, Board. Compensation ers’ Appeals decision of the Court of would reverse the the decision wcab. and reinstate 1However, scope unnecessary speculative to I discuss find it Legislature given newly authority the has to the review and 17.237(859). 418.859; appellate under MCL MSA board created