Gose v. Monroe Auto Equipment Co.

Gose v Auto Monroe 147 1980] EQUIPMENT GOSE v MONROE AUTO COMPANY v SANDERS GENERAL MOTORSCORPORATION 60752, 60759, 60826, 5, Argued

Docket Nos. 60839. December 1978 (Calendar 7-10) 27, 1980. Nos. June . Decided Equipment paid plaintiff Company Tip- Defendant Monroe Auto 1967, ton G. Gose workers’ benefits from 1953 statutory weeks, maximum of 750 for an to his left leg, amputated. eventually plaintiff In 1968 Gose claimed further benefits for the industrial loss of legs, insanity, permanent disability, both work-related total and injuries. proofs concerning plaintiff’s and related Some claim, hearing mental condition were at offered on the but hearing, plaintiffs attorney at close withdrew the insanity objection by claim of without the defendant. The Compensation Appeal payment Workmen’s Board ordered employer additional benefits the defendant but reversed an against Injury plaintiff award the Second Fund. In 1972 the injuries claimed additional benefits for the same as in his 1968 allegation changed claim. There was no that his condition had hearing hearing since the in 1969. The referee found that insane, Gose was but that his claim for additional judicata. benefits was barred the doctrine The Work- Compensation Appeal men’s insanity Board found that was a proceedings "triable issue” the 1969 and that the doctrine of judicata precluded Appeals, res Danhof, C.J., its reassertion. The Court of JJ., Kelly, peremptorily and Bronson and M. J. [1, [5, [9, ^{[16] [18] [23] [7] [4]} [3,13] ^[6] 21, 8] 46 Am Jur 82 2, 10-12, 14, 15, 81 Am Jur Workmen’s tion 584. 46 Am Jur 82 Am Jur Am Am Am Jur Workmen’s 46 § Am 82 Am Jur Workmen’s Jur Jur Jur 2d, 2d, Judgments 2d, 2d, 2d, Judgments 2d, References 2d, Workmen’s 2d, Judgments Administrative 17, 19, Workmen’s 2d, 20] for Points in Headnotes § Compensation Compensation § Compensation 395. 82 Am Jur Compensation 394§ Law 645. et Compensation § et seq. seq. 2d, § § §§ 338. 572 et § 469 et Workmen’s 340, 343, §§ seq. seq. 591. Compensa- 409 insanity claim consideration of and remanded for reversed 77-3216). (Docket Auto Defendants Monroe No. on its merits insurer, Liability Michigan Company, Mutual Equipment its appeal. Injury Company, Fund Second and the compensation benefits claimed workers’ Plaintiff Louise Sanders against employer, permanent disability her Gen- and for total Corporation. hearing awarded referee eral Motors plaintiff she was 500 weeks of but found that Sanders benefits totally by permanently loss of the use of and disabled the not legs. plaintiff additional benefits In 1974 the was awarded her permanent disability. The second claim was for total and Appeal by Compensation Board on the the Workmen’s reversed Danhof, C.J., ground Appeals, judicata. of and res The Court of JJ., Heading, Compen- to the Workmen’s remanded Allen and permanence Appeal of to find Board whether sation 31376). (Docket plaintiff’s injury adjudicable in 1968 No. Corporation General Motors and Sec- Plaintiff and defendants Injury appeal. ond Fund Kavanagh, opinion Chief concurred In an Justice Fitzgerald Ryan, it was and Justices held: Justice Coleman judicata applies in of res workers’ The doctrine others, cases, actually litigated and to bar those claims arising which could have out of the same transaction those also brought, but were not. been economy judicata, principle of behind the 1. The concerns litigation, apply finality equally judicial resources and proceedings other actions. The workers’ scope always maintained that of the doctrine Court has area, but has been consistent in the same in each not should be acknowledged scope. recently defining that The has Court conflicting language the "broad” rule that bars and chosen arising questions previously litigated out of and those claims brought which the could have the same transaction the first action but did not. applies previous the doctrine 2. The Court’s declaration that points litigated, only previously of law but also to not facts proceeding, necessarily adjudicated is in the first which were simple expression affirmation not an of a "narrow” rule but a breadth, applies judicata, its the rule of res whatever change, Barring equally adjudications of facts and law. relitigated. neither can be scope judicata argument rule of res 3. The of the compensa- persuasive. A workmen’s should be narrowed not adjudication represents as to the condition tion award Disability injured benefits it is entered. workman at the time Gose Monroe v Auto persons wage- are a form of income maintenance for whose earning capacity suspended been has or terminated. A claim- depends upon ant’s such entitlement the circum- application payment. require- stances at the time present single ment all of that he his available claims in a proceeding purpose adjudicating with is consistent this legislation worker’s needs. The remedial character of would scarcely by a be enhanced construction which would authorize piecemeal compensation injury. for an application any 4. Central to of res the rule is the principle may relitigate question that one identical adjudicative process once determined. The would fail to serve its social if it did not effect. function have this Plaintiff San- asserting ders’ second is barred claim because she the same claim. 5. Plaintiff second Gose’s claim is also barred because it is the same as the There can be claim first. but one for total and permanent disability. Although Disability the Worker’s Com- pensation claim, recognizes Act seven alternative bases for the establishing only evidence more than one basis would occasion although petition, upon one award. second Gose’s a different (insanity basis of instead the industrial loss of the use of both legs), compensation nonetheless seeks workers’ for the same arising claim of injury total and from obligated single proceed- his left ankle. He in a was to advance ing every support basis alternative which could this claim. relitigation previously Failure to do so bars the claim of re- against solved him. Appeals

The decision of the Court of is reversed in each case. Williams, joined by Moody, Justice Justice would in hold claim, plaintiff may litigate Gose that the but his that the claim by judicata. in Sanders is the barred doctrine of res policy judicata favoring finality 1. The always of res is not purpose compensation consistent with the remedial workers’ of persons integrity wage- benefits to the maintain fiscal of whose earning Therefore, suspended capacity has been or terminated. judicata given application the doctrine of res is a limited change workers’ in cases: absent a the claimant’s physical condition, judicata applies the doctrine of res to facts previously litigated questions and to of law which were neces- sarily adjudicated determining deciding subject in the litigation. questions apply matter of the It does not which adjudicated could have been but were not. by plaintiff insanity 2. The claim of benefits for Gose is not by judicata. raising barred the of is a doctrine It not the it, requires matter, adjudication or decision but the upon the application as a bar. The doctrine rests doctrine the compe- by principle question a once determined court of that a judgment jurisdiction by the forever a on merits is settled tent plain- litigants concerned. fact that the far the are so as insanity issue” which found to be a "triable tiffs claim was hearing adjudicated at is not a basis been an earlier could have invoking judicata the context doctrine of res within for compensation. workers’ leg disability Complete plaintiff evidence as to Sanders’ 3. hearing hearing presented in and the the first at change findings specific it. in the Absent a referee made condition, findings judicata. physical these are res claimant’s plaintiff physical Although Sanders asserts that her condition had, fact, hearing, changed first between the and second appeal specifically a matter of fact that no such board found as a in the record for this Because basis exists occurred. by finding is not reviewable the Court. it conclusive and hearing nothing the first is in the record of There postpone or defer final an intention Sanders to indicate Furthermore, may plaintiff not concede determination. necessarily in the determinative of and included issue of law then, plaintiff successfully judgment has after another contested, ask relief. raised the issue hearing argues solely that the first deter- 5. Plaintiff Sanders However, in 1960. mined her as of the 15, hearing designates April the first decision of referee at work, disability. day of as date There was the last appeal prior of all issues determination board now therefore, asserted; present Sanders’ claim barred application judicata. of res in workers’ Justice Levin dissented. The statement general litigation as the doctrine cases well adjudicable adjudicated of res bars all issues respect single Whether one to a claim does not decide Gose. judicata, application of res endorses a "narrow” or "broad” presented question constitutes a "claim”. Gose what compensation the bases of Court that seven alternative states permanent in the statute for and enumerated total Levin would hold that each alterna- are but one claim. Justice litigation separate of that tive is a claim and therefore basis litigation preclude subsequent not of another. one does petition barred that the second is Sanders the Court states adjudicated previously asserting is claim because she the same her, respond her against to her contention but fails to Gose v Auto Monroe petition exceptions preclusion is within to the ordinarily previous adjudication. results from Levin Justice would hold recognized exceptions general that her case to falls within the rule. petition insanity by Gose’s based is not barred petition previous petition and his unless that based on legs single loss of use of both seek a industrial to enforce claim. statutory single perma- The former claim and based on total Legisla- nent in fact was abolished 1954 when the specifically ture substituted seven alternatives enumerated as recovery. the exclusive bases for While the seven alternative collectively bases continue to be to referred "total and permanent disability”, longer any opera- those words no have meaning tive and their effect deletion would not them, act; provides or with without the act in the Injury pay seven described situations the Second Fund shall pre- differential benefits and there is an 800-week conclusive sumption disability. Court The states that all matters "aris- ing presented out the same must at transaction” be one time "piecemeal compensation injury”, to avoid for an without ex- plaining why necessarily scope "transaction” defines of the claim, what is meant "same transaction”. The statement requiring present the Court that all worker to of his single proceeding available claims in a is with consistent purpose adjudicating the worker’s needs fails consider the present history practice of and in the administration of compensation scope workers’ law overstates the preclusion resulting prior litigation. compensa- from A workers’ obliged present arising tion claimant all claims out of single injury proceeding. litigation a in one Renewed piecemeal compensation compen- are characteristics of workers’ proceedings. sation 2. That there can be but one award for total and disability does not mean that there can one claim be but for compensation arising single Generally, such from a accident. loss, right there is but one and a judgment securing compensation merge successful in will with loss, plaintiff only not because a is entitled one chance to damages, compensated secure but because he is entitled to only question once. will be barred here whether a claim suit, requires prior where the in a has failed and that that it be determined if on the the second suit is based same claim. Under the cause of workers’ act a fiction sustaining compensable disability by or claim is the Compensable employee. strictly narrowly disabilities are 409 any entitlement. Gose’s act and are the basis defined the disability arising permanent from total and is not for claim perma- may totally and injury to left ankle. He have been his ankle, injury nently his he result of to but disabled as a the compensation to total and have no claim for would specifically disability injury enumerated unless he sustained legs statute, e.g., or of industrial use of both under the loss allegedly insanity. left him with two His incurable accident disabilities, insanity, compensable of industrial use and loss claims, obligated litigate to he was not and therefore two together. generally inquiry is in a workers’ case 3. The compensable disability has under the act been whether a injury or how the occurred. It is and not whether established accident, disability, injury the or which best rather than the scope compensation claim. The contest the of a workers’ defines from most will center on whether the worker suffers cases alleges is to he due the and whether exposure, the the accident or not on circumstances of the exposure. proceeding Adjudication in of multi- one accident or ple unruly; recovery be all that the bases for would various they to the would have in common that involve claims alleged, compensable disability employee. the each same For proved, compensable to as would its condition would have essentially would be a series of work-relatedness. result being together. separate This additional invest- cases all heard money prove unnecessary to be if ment time and will strongest employee prevails perceived he to be his on what claims, bring required ripe all he claim. Had he not been benefits, alone, petitioned on that would have claim secured proofs put employer his other and never himself or of contest is so small when claims. Because the common area proofs, compared separate com- to the areas of issues and origin single injury should mon of disabilities in accident judicata. purposes of a for of res not be the measure "claim” alleges compensable disability, employee he is When an claim, required present but all to that where issues related compensable has he should not be he suffered two disabilities single required petition, even when to seek in a single originate or occurrence. the disabilities in a accident adjudi- incurably claim was not 4. Gose’s that he insane , hearing, nor it It was with- cated the first abandoned. request objection lawyer by specific without from the drawn preju- any right employer, to assert whose silence waived is for dice the future. The defense Gose v Monroe Auto protection may and he defendant’s assert it where he has objection proper splitting failed to make to the a claim. Had withdrawal, employer objected to the Gose would have been withdrawal, might, by warned that be said he to be aban- Instead, doning insanity altogether. claim he was made believe that would be his submission there no barrier to any employer claim at a later date. The waived has defense judicata. based on res law, facts, change change 5. A a in in the like can eliminate judicata. the bar of Had the in Sanders not res claimant raised permanent disability petition, in the issue of total and her first barred, she would not now be because there would never have statutory been a determination that she within the was not meaning phrase. judicata developed of A that doctrine of res point a case a had where claimant conceded a of law then attempted reopen to the issue almost two decades later when changed by the law had of been the efforts others should not be case, legal extended to this in which the claimant advanced a interpretation courts, accepted by later but was awarded theory appeal benefits on another and chose not to the award. judged The claim for additional benefits should be under the legal operative made, at standard the time the claim is not- withstanding petition upon an earlier the same claim legal failed under a different and more restrictive standard. hearing 6. The at determination the first in Sanders that the legs claimant had not established loss of industrial use of both appealed, was not because the found referee that she had compensable occupa- established a total due an disability. compensation, tional back Because awarded she was other payable Injury than differential benefits the Second Fund, appeal she had no incentive to the unfavorable determi- permanent disability. nation on the issue total and An issue previous litigation resolved in should not be foreclosed in subsequent litigation parties party between the where the against whom the issue is decided did not have an incentive adjudication obtain full proceeding. a and fair in the first The policies judicata which the doctrine of res seeks to serve do require testimony that Sanders be denied which benefits finding hearing and the referee’s at the indicate second she desirable, Finality entitled to receive. but the nature compensation controlling workers’ is such is not a it Except possibly compensation payable consideration. for loss, specific fixed number of for a weeks award or denial may always reopened change if has there been physical condition, status, or Workers’ other circumstances. 409 Mich periodically, payable maintenance is income justifying giving rise to the entitlement when the factors result, too, change. change, should denial (1977) App reversed. 263 NW2d op Opinion the Court Compensation — 1. Res Workers’ Judicata. economy principle judicata, The concerns behind litigation, equally apply judicial finality of resources and compensation proceedings and other actions. workers’ Compensation — 2. Res Workers’ Judicata. second claim for workers’ of res bars a

The doctrine question actually litigated in a if same arising proceeding; it those claims out first bars well brought in the could have same transaction which claimant proceeding, not. first but did op op — — Judgment — Fact Question Res Judicata Question Law. judicata applies, of a of res absence doctrine law, previously equally questions of fact the facts or the necessarily adjudi- litigated questions of and to law were determining subject deciding the matter of the cated litigation. Compensation — Res 4. Judicata. Workers’ represents compensation adjudication as A workers’ award entered; injured at it workman the time the condition of the compensation are form of income maintenance for a capacity suspended persons wage-earning has been whose terminated, entitlement to such benefits de- and a claimant’s application pends upon of circumstances at the time payment. Compensation — 5. Res Judicata. Workers’ present requirement compensation The that a workers’ claimant proceeding single is consistent all his available claims in a of needs; statutory purpose adjudicating the worker’s of with legislation, all of if affected at remedial character scarcely judicata, a of be enhanced doctrine res would piecemeal compensation authorize construction would injury. for an Judgment — Res Judicata. application judicata is the any res the rule of Central Gose v Monroe Auto principle may relitigate that one question not the identical determined; adjudicative process once fail would to serve its social function if it did have this effect. Compensation Disability. — 7. Workers’ Total compensation There can but one workers’ claim for total and permanent disability; although Disability the Worker’s Com- pensation recognizes it, Act seven alternative bases for evidence establishing only more than one basis would occasion one (MCL418.361[2]; 17.237[361][2]). award MSA Compensation Disability. — — 8. Workers’ Res Judicata Total compensation A workers’ obligated claimant was to advance ain single proceeding every support alternative basis which could permanent disability arising claim of total and from an ankle; to his left failure to claim a total and insanity petition on the basis in the first well as legs relitigation industrial loss of the use of both bars of the (MCL previously against 418.361[2]; claim resolved him MSA 17.237[361][2]). Opinion Concurring Dissenting by Williams, in Part in Part Compensation — 9. Workers’ Res Judicata.' judicata applies The doctrine of res to workers’ proceedings, physical absent a in the claimant’s condi- tion. Compensation — 10. Workers’ Res Judicata. policy judicata favoring ñnality doctrine res is not always purpose consistent with the remedial of workers’ com- pensation legislation integrity persons to maintain the ñscal wage-earning whose capacity suspended has been or termi- nated; therefore, given doctrine more application limited to workers’ than cases other cases. Compensation — Findings op —

11. Workers’ — Res Judicata Fact op Questions Law. judicata applies doctrine of compensation res in workers’ previously litigated points cases to facts and to of law which necessarily adjudicated determining deciding were and the subject litigation; apply matter of the questions it does not adjudicated which could have been but were not. Mich Compensation — Judicata. Res 12. Workers’ adjudication of workers’ or decision a It the is matter, application requires claim, raising of the not the hearing on judicata res at a later doctrine of of the bar of the claim; plaintiffs claim for workers’ fact that a the the same ’’triable issue” condition was a for a mental hearing, adjudicated at which at a first been which could have plaintiff’s adjudicated the issue of and other claims were it was was before raised but withdrawn mental condition was defendant, by not a objection basis adjudicated without hearing invoking based on the claim at a later the doctrine for condition. for his mental Judgment — Res Judicata. 13. upon principle judicata a that of res rests

The doctrine jurisdiction competent by question a court of once determined settled far as the by judgment the merits is forever so a litigants are concerned. Compensation — 14. Workers’ Res Judicata. perma- compensation beneñts for total and for

A workers’ claim disability of res where the doctrine barred nent presented plaintiff’s complete to the evidence as speciffc hearing hearing a previous referee made a and at burden of ñnding had not sustained the disability, establishing permanent and there was no and total following physical condition claimant’s in the ñnding. Compensation — Res Judicata. Workers’ law, necessarily may determi- an issue of A not concede claimant judgment for workers’ in a claim native of and included then, compensation, has another claimant success- after issue, relief; judi- fully ask for doctrine raised that a result. cata bars such Appeal Compensation Findings — — of Fact 16. Workers’ Error. Compensation Appeal Findings by Board that a the Workers’ changed physical had not between condition claimant’s hearing on the same claim time of a ñrst and second beneñts, day than the date that the last of work rather are conclusive and was the date of in the there exists a basis reviewable the courts where 28). (Const 1963, ñndings art § record for the Gose v Monroe Auto

Dissenting by Opinion Levin, J. Compensation — 17. Workers’ Res Judicata. subsequent proceeding

The statement that in a in a workers’ compensation judicata case the doctrine of res bars all issues adjudicated adjudicable by or an earlier determination in re- single spect presents question to a claim still what consti- tutes a "claim". Compensation Disability. — —

18. Workers’ Res Judicata Total speciñcally Each of the seven enumerated alternatives described of., Compensation Disability in the Worker’s asAct the bases compensation permanent disability separate for total and is a claim; longer single there no claim a for total and litigation (e.g., and therefore of one basis incurable insanity) preclude litigation subsequent does not of another (e.g., legs) of industrial loss use both under doctrine of (MCL judicata 418.361[2]; 17.237[361][2j). res MSA Compensation — 19. Workers’ Res Judicata. compensation of all arising Presentation workers’ claims out of proceeding the same or transaction in one should not be required judicata under the doctrine of res because it disability, injury, rather scope than the which best deñnes the compensation requirement of a workers’ claim and a such adjudication separate essentially makes the a series of cases all being together, only proof heard in which the common areas of they injtiry are all involved to the same worker. Compensation op — — 20. Workers’ Res Judicata Defense. Waiver employer An any has waived defense based on in a petition for workers’ a claim where that a incurably specific worker was insane was with withdrawn request regard, that no lawyer decision made in and a employer present for the when the was claim withdrawn withdrawal; and remained silent its as to the defense of res judicata may employer be waived it is because for the protection, employer may defendant’s not assert objection proper defense where it has failed make a to the splitting aof claim. op Compensation — — Law. Workers’ Res Judicata Question law, change judge-made, fact, statutory change A or like upon justifying, applica- can effect a in circumstances employer, compen- tion of the worker or an award of workers’ Opinion op the Court previ- suspension of beneñts, beneñts or termination sation ously awarded. op — — Compensation Law. Question Judicata Res 22. Workers’ petitioned for workers’ in 1968 who A claimant legs ad- of both alleging use loss of industrial beneñts courts, accepted legal interpretation later vanced theory, who upon petition another was awarded whose by the appeal is not barred that favorable award chose not petitioning judicata for further later from of res doctrine previously interpretation advanced becomes when the beneñts (MCL418.361[2j; 17.237[361][2]). MSA law Judgment — Res Judicata. previous litigation not be foreclosed should An resolved issue party parties litigation where the subsequent between an incentive to against did not have the issue decided whom proceeding. adjudication in the ñrst full and fair obtain a Kates, Nunn, & Sachs, Kadushin Marston, P.C., O’Hare, Gose. plaintiff for Houk, P.C., for Mitchell, Vilella & San- plaintiff ders. Capp, Egan P.C., for de-

LeVasseur, Mitseff, & and Equipment Company Auto Monroe fendants Company. Mutual Insurance Michigan McKay Roberts, P.C., Anderson, Green, & Corporation. Motors General defendant Kelley, A. Robert General, Frank Attorney Derengoski, F. Za- Richard General, Solicitor pala, General, for defendant Attorney Assistant Fund. Injury Second appeal

Kavanagh, leave granted J. We judicata of res of the doctrine the effect determine claims. these workers’ upon Gose v Monroe Auto Opinion Court Justice Williams has stated the facts in both cases.

I parties question do that the doctrine of judicata applies compensation pro- res ceedings; they workers’ only scope.

differ as to its Plaintiffs only actually litigated assert that those claims in a prior proceeding relitigation. are barred from De- argue fendants that res bars those claims litigated actually arising and also those out same transaction which could have brought action, in the first but not. did judicata principle—

The concerns behind economy judicial finality litiga resources apply equally pro to workers’ tion — ceedings Larson, other actions. Workmen’s Compensation p Law, § 79.71, 15-307. While this always scope Court has maintained that the doctrine should area,1 same in each we have defining scope. not been consistent in 1 Appeals Lakey The Court of Foundry held otherwise in v Stokes Corp, App 217, 219; (1969): 20 Mich 173 NW2d 832 "Except compensation cases, Michigan for workmen’s has held that judicata applies the determined the only doctrine of res to issues which were merits, parties the but also which matters had present opportunity adjudication on the merits. [Citations omitted.] judicata apply "While the doctrine of res does to workmen’s com- (Willis pensation Michigan Casting, Alloy cases v Standard 367 Mich (1962)]), Michigan 140 NW2d 222 [116 it been has limited to issues actually litigated that were Co, as a matter of fact. Hebert v Ford Motor (1938)]; 285 Michigan Mich 607 NW 374 v [281 White Consoli- Co, (1958)].” dated Gas 352 Mich 201 NW2d 439 [89 reading A close of both Hebert and White shows neither opinion unique compensation proceed- delineated a rule to workers’ ings; they merely to a broad rule, application opposed a recited narrow as version, Moreover, case, discussed infra. in each inapplicable: involving separate injuries sepa- was two two Hebert, rate transactions were at issue in and White final proceed- determination on the had merits not been made in the first ing. 147 409 Mich 160 Opinion of the Court and a endorsed both narrow opinions have Our application Narrow of the rule. application broad question if the same only action a second bars proceeding.2 in the first Broad litigated actually arising claims out of well those bars as application could have transaction same we have opinions, not.3 In recent brought, but did language opted conflicting acknowledged Kenney, v 375 Mich rule. Gursten for the broad (order (1965) of dis 330, 334-335; 764 134 NW2d Detroit, 327, 332; Mich 231 Curry v missal); 394 dismissal). (order (1975) of summary 57 NW2d contain cases also compensation Our workers’ again, we endorsed the conflicting language.4 Once pronouncement: most recent rule in our broad the rule forth approval set Court has cited with "This Jur, Compensation, 508. See Am § in 58 Workmen’s Co, 201; Michigan Gas 352 v Consolidated Mich White (1958). section states: 439 This 89 NW2d " upon to the general respect with effect 'The rule judicata to principles of res decisions application of acts, provision of a under workmen’s authorizing upon a show- the modification of award condition, is that a ing employee’s in the of a adjudication as to the condi- is an award entered, the time it is injured workman at tion of time, adjudicable at that of all matters and conclusive claimant’s future adjudication it is not an but 2 Co, 563; 247 Guardian Trust 262 Mich NW MacKenzie v Union (1949), Dillon, 389; (1933); 146 v 324 Mich 37 NW2d 914 Meister (1949). Furbeck, 401; 37 Trust v 324 Mich NW2d Detroit Co Co, 139; Harrington 118 NW 924 & 155 Mich v Huff Mitchell (1935); Black, 305; (1908); 259 NW 40 Strech v McDannel v 270 Mich Dist, 620; Community 99 NW2d 545 Schools 357 Mich Blissfield (1959). 607, Co, 613; Compare 281 NW 374 v Hebert Ford Motor 201, Co, (1938), Michigan Gas and White v Consolidated Co, (1958), Briggs Manufacturing 286 306 89 Mich with Kubiak v NW2d Co, (1938), Utley Boyich 333-334; v J A 282 NW 427 (1943), 625, Packing Materi v and Theodore NW2d (1976). als, Inc, 152, 158; NW2d 255 396 Mich Gose v Auto Monroe Opinion Court preclude subsequent condition and does not awards or subsequent original upon modifications award a showing employee’s physical that condition has * * Co, changed. Hlady v Bolt Wolverine (1975) 368, 375-376; (emphasis supplied 224 NW2d 856 Hlady). in expressed

I do share the view in Justice opinion applied a we rule” "narrow Williams’ Hlady. in disagreement judi-

There was no there that res adjudicated adjudicable facts cata barred all at hearing. time of first There was also no disagreement applied that the law those facts at hearing unchanged preclude such if would also subsequent redetermination. disagreed only change

We over whether permits law—as would a a subse- facts— quent redetermination anof issue. disagreed Thus while we over whether the rule applied, of res should be there was no dispute scope coverage applicable. over the of its if expression Hlady: judicata applies

"the doctrine of res not only to facts previously litigated, points but also to law necessarily adjudicated determining were ing and decid- subject litigation”, supra, matter of the Hlady, expression simple is no of a "narrow” rule but a judicata, affirmation that the its rule whatever applies equally breadth, to facts and Bar- law. ring change, agree under the doctrine we all relitigated. can neither persuaded scope I am not of the rule urge. compen- plaintiffs narrowed, should be A " represents adjudication sation award 'an as to 147 409 op Opinion the Court injured at time workman condition of the ” Packing Materials, Inc, v it Theodore is entered.’ (1976), citing 58 152, 158; 240 NW2d 255 Disability supra. a of "are form Jur, benefits Am persons wage-earn- for whose income maintenance ing capacity suspended A or terminated. has been depends on entitlement to such claimant’s application and the time of circumstances at supra, Hlady, J., payment”. concur- (Levin, ring). present requirement all of his avail- that he The single proceeding is consistent in a claims able adjudicating purpose the worker’s of with this legislation, if character needs. The remedial affected at enhanced piecemeal scarcely rubric, be all this would would authorize construction which injury. for an

II application any of the res Central principle one broad —is rule —narrow question relitigate may the identical once adjudicative process would fail to determined. if this function it did not have serve its social (Boston: Hazard, Procedure James & Civil effect. Little, 1977), p Co,& ch Brown plaintiff agree I with Justice Williams petition she is is barred because Sanders’ second asserting the same claim.5 original disablement. Plaintiffs claim was for total permanent disable- the claim for total but not The referee allowed ment. The proofs permanency inadequate. Plaintiff seeks of were claiming adjudication by premature and therefore this it was avoid theory permanency could that a determination ineffective only This is "such the 418.361(2)(g); injury. elapsed sought from the date of be after 496 weeks had language: statutory misinterpretation misreading days permanency before shall determined not less than injury”. expiration MCL 500 weeks from date 17.237(361)(2)(g). provision not a statute of This MSA Gose v Monkoe Auto Opinion of the Court disagree

I with his conclusion that Gose’s not be barred for the claim should same reason. perma

There can be but one claim total and Although recognizes disability. nent statute 6it, seven alternative bases for evidence establish ing only more than basis one would occasion one award. although petition, upon

Gose’s second a different (insanity basis both instead of industrial loss use of

legs), nonetheless seeks for the permanent disability and same claim of total ing aris- obligated from to his left ankle. He was proceeding single every in to advance alternative support basis which could claim. this Failure to do relitigation previously so of bars the claim re- against Judgments, solved (Tentative him. Restatement 2d 1978), p 61,§ c,

Draft No comment entry We reverse and remand in both cases for denying judicata. of an order benefits based res Fitzgerald Coleman, C.J., Ryan, JJ., and J. Kavanagh, with concurred determining asserted, limitation when a claim be can but rather a requirement permanency of the must be deter- injury. mined at a date within about 496 weeks of date of 6"(2) permanent disability, Total and for which is provided in section 351 means: "(a) sight eyes. Total loss of both of "(b) legs Loss of both or feet both at or above the ankle. "(c) Loss of both arms or both hands at above the or wrist. “(d) (b) any (a), 2 Loss of members or faculties enumerated (c). or "(e) complete paralysis legs Permanent and of both or arms or both leg of 1 and 1 arm. "(f) insanity imbecility. Incurable "(g) legs Permanent and loss of total industrial use of both or both arm; leg purpose hands or both arms or 1 and 1 this permanency such subdivision days shall be determined not less than 30 expiration injury.” before of 500 from weeks the date 17.237(361X2). 418.361(2); MCL MSA 409 Mich Opinion Williams, J. in these two cases to are asked We Williams, explicitly application define the revisit and more compen judicata to workers’ the doctrine of recently most this Court faced This sation law. Hlady Co, 368; Bolt v Wolverine task (1975), judicata which res 224 NW2d Morgan control, Art v Freedman found to (1977), craft, in which 257 NW2d not. it was Gose, a claim based on the issue is whether adjudication

insanity withdrawn before which was subsequent re-petitioned case in a without can judicata. being by res In Sanders the issues barred determinations had been as to whether are made in the fact prior Based on the facts of each case. Hlady, set this Court case and the rule forth supra, find of res does we the doctrine plaintiff but does claim of Gose bar the bar Sanders. claim

I. Facts A. Gose employ- Tipton Gose,

Plaintiff, G. commenced Equipment Auto ment defendant Monroe with plaintiff 1946, ankle; Au- 1945. In cut his left gust reinjured 1953, 3, same area. Both he while at incidents occurred work. developed an ulcerated

The 1953 incident into condition which caused intermittent absences skin from Workers’ plaintiff treatment. received

work while voluntarily compensation were during paid absences. these plaintiff apparently totally By 1960, unable was February employment 19, 1962, and on to continue amputation plaintiff a below-the-knee underwent leg. of his left Gose Auto v Monroe Opinion Williams, J.

Compensation paid voluntarily benefits were through expiration period. of a 500-week Ten subsequent expiration days to the of that benefit plaintiff period, petition 14, 1963, March filed a Compensation hearing with the Workers’ Bureau indicating personal injury August 3, 1953, dates (presumably day and the summer of 1960 the last work). "ankle, The was described as leg amputation permanent thereof, and total dis- ability, injuries”. petition and related was August 12, 1963, however, withdrawn when the agreed defendant-employer pay payment voluntary on a basis. This continued for 4, 250 more weeks and terminated December amputation Plaintiff testified that after his he depressed killing was result, felt like As a himself. August, plaintiff was admitted to Ypsilanti Hospital State and was an intermit- patient facility tent release, at that until 1968. Since his

plaintiff has been on medication and in the care his brother. again plaintiff 14, 1968, March

On filed a claim for workers’ claim benefits. This was brought against employer both his and the Second Injury Fund. Plaintiff listed the same (1953 1960) dates and claimed "industrial loss legs, insanity, of use of both disability total and injuries”. and related Hearing 3, 1969, commenced on November dur- ing Raymond Lipton, F. M.D., who testified specialist that he was a the treatment deposed regard plaintiff’s physi- cases, was with physical status, cal and mental status. his As to Lipton Dr. circulatory found suffered from arterial diagnosed right leg. disease of the He plaintiff’s problem psychosis”. mental as "chronic diagnosis partially This based on the fact that Mich 147 Williams, Opinion from plaintiff accompanied worker who the social had Lipton’s Dr. office to Hospital State Ypsilanti diagnosed as had plaintiff that been told doctor pre- was testimony medical No other psychotic. Lipton Dr. at time sented, no testimony employ- to his psychosis the claimant’s related above, claimant’s ment, as stated although, his problems his mental related testimony own amputation. 1, 1969, came before the matter

On December At of the record. hearing closing referee for time, withdrew plaintiff’s attorney officially that plaintiff’s insanity: claim from consideration it from claim which relates decision the case offer ^[*] "Well, ^{[*] [*]} proofs » my standpoint by made in if your proceed in that Honor on the to the regard, regard. please, would like to withdrawing claim allegation We would like instead and we I insanity. of loss of both that do not want We did not part of the complete legs lodged by was to the withdrawal objection No defendant. 1970, 29, hearing referee found April

On use suffered industrial loss had legs defendant-employer and ordered the of both weeks; the referee further benefits for 750 pay Fund to Injury pay ordered the Second Injury The Second period. the 750-week beyond Com- Fund this decision the Workers’ appealed WCAB). (hereinafter pensation Appeal Board by deny- modified the referee’s order WCAB from the ordered due ing plaintiff the benefits appeal no Apparently Second Fund. Injury from modification. taken this for bene- plaintiff again applied April, and the Second employer fits from his former Gose v Monroe Auto Opinion by Williams, J. Fund. Plaintiff Injury recited same dates and the same disabilities as previously petition, including the 1968 insanity. claimed alleged, was testimony No condition but pursuant to this claim that of psychia- included Defendants, trist. employer Injury and Second Fund, dismiss, filed claiming a motion that plaintiff’s present claim was barred by judi- res 1973, A hearing 26, cata. was held on January in a that finding which resulted was plaintiff "incurably by insane as determined court decisions and is permanently totally disabled”. Further however, compensation, was found to be barred affirmed, of res The application judicata. WCAB plaintiff’s finding contention of was insanity triable issue at the earlier 1969 hearing, and was res judicata. therefore barred by application Plaintiff filed an appeal for leave to Appeals. Court, with the Court of per- That in a 21, 1977, order emptory issued November ruled: ordered, 1963, pursuant 806.7, "It is to GCR that this be, hereby cause and the same is remanded to the Compensation Appeal Workmen’s Board for considera tion, on the merits of evidence and invok without ing judicata, question plaintiff whether totally permanently a result disabled as of incura insanity ble Morgan under the act. v Freedman Art (1977). craft, 401 Mich 54 Court no jurisdiction.” "This retains further Both sought defendants leave to to this appeal 1, Court. Leave granted June B. Sanders

Plaintiff, Sanders, employ- Louise commenced ment with defendant Motors Corporation Genera] October, November, 1952. From that until date 1960, plaintiff worked in capacities various includ- 409 Opinion Williams, working press, working

ing packing bumpers, on a inspecting. production line and on the plaintiffs 10, shift on November At the end inspector, plaintiff working trip- as an while pieces ped of wire which had fell over several in an The fall resulted aisle. been discarded plaintiffs injuries to back. physician, own first consulted with her

Plaintiff Benson, recommended that she John who Dr. 30-day plant period. physi for a work cease agree Clark, however, cian, Dr. did not injuries plaintiffs back necessitated total cessa Rather, Dr. had trans tion of work. Clark period. 30-day sedentary for a to work ferred prior at the to her duties conclu returned Plaintiff sion of the subsequently period 30-day and trans approxi positions. other For ferred several period plaintiffs mately three-year between No plaintiff April, vember, 1963, fall and contin treatment for ued to work while she received back by April, leg problems In her fall. and occasioned plaintiffs problems 1963, however, medical neces of work.1 sitated cessation through employment 1966, From termination of surgeries periods plaintiff several and underwent perform only hospitalization of limited able to was 1966, Plaintiff testified that activities. following laminectomy, she her third was unable chores, all be mobile for do almost household prepare time, meals or more than a short drive in an ride automobile. compensation

Plaintiff received workers’ period April, during much between October, 1965. four-day plaintiff period but was returned for a work apparently employment to continue. This incident of was unable subsequent insignificant determina- to be because there found tion that plaintiff’s day of work occurred in last Gose v Monroe Auto Opinion Williams, J. September plaintiff petition 1967, 27,

On filed a hearing Compensation for with the Workers’ Bu permanent alleging disability reau total and to her legs system. hearing back, and nervous A was held finding 1968, 5, December that, resulted in a April plaintiff 15, 1963, as of occupational had sustained an

disease and was therefore entitled receive for total employer statutory from her period for the maximum (i.e., of 500 weeks2 until November 1972). hearing simultaneously referee deter mined, Injury however, that defendant Second employer, Fund, unlike defendant was not liable plaintiff because had "failed to sustain the burden proof permanent disability to establish total and added). (emphasis as defined the statute” No appeal was taken from this determination. plaintiff again 6, 1972,

On December filed a petition hearing Compensa- with the Workers’ alleging tion Bureau total and disabil- ity legs. due to loss of industrial use of both hearing, Pursuant to this second the Administra- Judge tive Law concluded that was "to- tally permanently through disabled the indus- legs”. trial loss of use of both Appeal was taken to the WCAB. The WCAB that, determined because there had been no 2The subsequently legislatively changed. 500-week limit was As by Appeals discussed the Court of in the instant case: plaintiff’s "The statute in injury effect at the time of the limited 412.9(a) benefits for total to 500 1948 CL weeks. [since repealed replaced by 418.351(1); 17.237(351X1)]. MCL MSA This apply persons limit did not permanent found to have a 'total and disability’. by The 500-week limitation was removed 1965 PA but applied plaintiff’s it nevertheless to the case because —absent a clear legislative expression contrary compensation rights are intent — injury. Briggs determined under the law in effect on the date v Campbell, Wyant Co, Foundry 160; & Cannon 379 Mich 150 NW2d (1967). 578; Fosterling, 752 But cf. Lahti v 357 Mich 99 NW2d 490 (1959).” (1977). 190, 192; App 80 Mich 263 NW2d 329 Mich 147 170 409 Opinion Williams, J. since the first hear-

change condition plaintiff’s forth this of res as set ing, doctrine Co, 368; Bolt v Wolverine Mich Hlady Court (1975), precluded a redetermination NW2d 856 plaintiff’s total of the issue disability. to the Court which appealed Appeals

Plaintiff that, judicata, of res despite found the doctrine under possible approaches there two were now permanent disability total and could be found. possible approach explained The was first follows: referee entered the first possible who "[I]t found that was then suffer-

award in 1968 legs it ing a loss of industrial use of her but that total impossible was at that time determine whether permanent.” not the was Sanders v General Motors loss (1977). 190, 194; 263 Corp, App NW2d 329 possible approach centered on a second legal in the standard: plain- "Whether or not the referee believed permanent, may tiffs he have found no condition permanent disability’ 'total he no because found legs’. statutory 'loss of industrial use of both While same, interpreta- phrase has remained the the case law phrase undergone tion of that has a considerable evolu- beginning plaintiffs shortly tion after the Co, Muskegon Heights 371 Mich date. Paulson v Tile (1963), 312; 123 NW2d Lockwood v Continental (1970), 597; Corp, App Motors 27 Mich 183 NW2d 807 Comm, Ontonagon County Burke v Road (1974).” Sanders, supra, 214 NW2d 797 these possibilities, Based on alternative Court decision of Appeals vacated v Gose Monroe Auto Opinion Williams, WCAB and remanded to that board for further proceedings.

Appeal from was taken this decision. On June granted applications 1978, this Court for leave appeal employer Injury and the Second cross-application appeal Fund and the for leave to plaintiff.

II. Issue differing aspects Because factual of Gose phrased Sanders, this Court in different lan- guage granted. appeal on issues which leave to was granted The issue on which this Court leave to appeal in Gose is as "[D]oes follows: the doctrine of judicata plaintiff’s perma- res bar second total and insanity” nent claim when, based on prior case, insanity claim based was adjudication? 950p. withdrawn before "[D]oes In Sanders the issue is: the doctrine of judicata plaintiff’s apply per res to bar total manent and claim when the issue of total permanent disability litigated and decided against previous hearing at a before a referee?”3 402 Mich 950i.

The order in each case indicated the two cases argued together. were be and submitted III. Workers’ Compensation Res Judicata Hlady A. point departure deciding

Our these two Sanders, plaintiff-cross-appellant As to grant was limited to question: Appeals case, "Has the correctly, Court of in this enunciated the doctrine cases?” applied as it is to in workers’ 409 Opinion Williams, J. jurisdiction longstanding in rule this cases is the physical in the that, claimant’s absent applies judicata condition, of res to the doctrine compensation Hlady law. v Wolverine workers’ (1975); 368; Co, 224 856 393 Mich NW2d Bolt Campbell, 243 220 301 NW Besonen v (1928); Michigan Practice, 24 Law & Workmen’s Compensation, distinction, § is a how- 234. There applica- scope ever, of the doctrine’s between scope compensation of its and the tion to workers’ application As noted to areas of the law. other Lakey Foundry Appeals in v Stokes Court (1969): Corp, App 217, 219; 173 NW2d 832 20 Mich cases, Michigan compensation "Except for workmen’s applies not judicata of res has held that the doctrine merits, determined on the but only to issues which were parties opportunity had the also to matters which the v present adjudication on the merits. Strech District, 620 Community Schools 357 Mich Blissfield [99 Kenney, 375 Mich 330 (1959)]; 545 Gursten v NW2d added.) (1965)].”4(Emphasis 764 NW2d [134 correctly set forth That case then went scope judicata’s application to the law of of res compensation as of its 1969 decisional workers’ date, as follows: apply to judicata of res does "While the doctrine (Willis Michigan compensation v Stan-

workmen’s cases 4 quoted portion, notes the distinc- As demonstrated in Stokes judicata and res res law tion between vis-á-vis workers’ However, regard solely judicata in to the vis-á-vis other of law. areas law, general as to the civil there has existed some further conflict scope Rogers proper application judicata. v Colonial See 607, Woods, Savings & of Grosse Pointe 405 Mich Federal Loan Ass’n (1979). 615-617; 275 NW2d 499 Rogers, on res res as a limitation In GCR 203.1 was discussed merger Michigan. judicata and bar under GCR now limits specific applicability judicata, general it no but as a court rule has compensation proceedings. workers’ 173 Gose v Monroe Auto Opinion Williams, J. Alloy Casting, dard 367 Mich 140 NW2d [116 (1962)]), Michigan it has been limited to issues actually litigated were aas matter of fact. Hebert v Co, Ford Motor (1938)]; Mich 607 NW [281 Michigan Co, White v Consolidated Gas Mich 201 (1958)].” Stokes, supra, NW2d [89 Subsequent Hlady Stokes, v Wolverine Bolt (1975), Co, 368, 376; 224 NW2d 856 case which was twice before this Court for resolu- differing slightly issues, tion of this Court broad- scope application ened the of res workers’ cases. Hlady fingers

In lost four in 1945 got caught punch press. when her hand in a upon expiration 1947, of benefits the under statu- tory specific schedule, 100-week loss filed application alleging for further benefits indus- right general trial of loss of her use hand and/or disability. employer appealed The a WCAB award compensation alleging of there was no entitlement existing to benefits the under test at the time. We agreed appellant with the and reversed the award compensation stating; of "The record is devoid tending of to testimony prove

that plaintiff any greater different or loss has suffered than normally amputation from Angers results of 4 of a hand. Notwithstanding plaintiff claimed that amputation fingers of her disabling 'seque- resulted in 'general lae’ and disability,’ the commission found none except disability amputa- normally which follows such added.) Co, tions.” (Emphasis Hlady v Bolt Wolverine (1949). 325 Mich 37 NW2d 576

Approximately eight years later, in this Court another case reconsidered the under which test Hlady evenly Ms. had been denied benefits. In an adopted vote, divided four Justices would have Mich 147 409 174 Opinion Williams, Hlady which Ms. could under more liberal test Co, recovered, v Haven-Busch Dorpel Van have (1957). 135; 85 97 NW2d 350 Mich plaintiff Hlady in 1967 Dorpel, Van light of Plaintiff therein subse benefits. repetitioned of from a Court to this Court appealed quently denial affirming the WCAB’s decision Appeals this appeal, judicata. based on res On forth in more liberal test set Court adopted res Dorpel, application but affirmed Van The rule benefits. utilized deny plaintiff judicata how Hlady, in dispute the res judicata to resolve not dimension to doctrine ever, added another e law,5 .g., recent case the more articulated Co, 352 Mich Michigan v Consolidated Gas White (1958), v Ford 201, 211; and Hebert NW2d (1938). Co, 607, 613; 281 NW Motor questions limiting judicata res merely Instead fact, fur this Court went litigated were which ther, stating applies only judicata the doctrine "that points law litigated, previously but also facts determining and necessarily adjudicated in were ” (Emphasis

deciding subject litigation. matter added.) Hlady, supra, 376.6 authority the rule was for the broader statement of cited Miller, Cooley’s case, opinion early v Jacobson Justice (1879). 90; 1 NW 1013 Michigan ad Sanders assert that 6 Defendants both Gose and cases. rule of res in workers’ heres to The broad only adjudicated all but also rule includes not all claims broad hearing. adjudicable at the the time of first claims cases, we rule in certain While citation to this broad does exist judicata compensation in which res have was the time workers’ case not found a adjudicated actually applied injury adjudicable at but not to an hearing. first the (1943), Co, 625; Boyich Utley cited 306 11 267 is v J A NW2d inapposite. correctly by in by it As noted this Court defendants but subsequent discussing Boyich, neurosis case the later asserted a disability prior actually adjudicated at a had as not work-related been 298, 303; Co, hearing, Chicago Tool 308 Mich Laichalk v Pneumatic therefore, (1944),and, judicata. by res was barred NW2d Gose v Auto Monroe by Opinion Williams, expanded Hlady, rule, This enunciated consti application this tutes Court’s most recent compensation doctrine to workers’ law in Michi gan, necessarily and is the rule which controls the .7 cases at bar scope

This limited is consistent with the nature compensation. Although general of workers’ policy judicata rationale for the doctrine of res Similarly, although the rule is broad mentioned in Theodore v Materials, Packing Inc, 152, 158; (1976), 396 Mich 240 NW2d 255 res judicata totally inapplicable. was found Co, Michigan 201, 211; In vWhite Consolidated Gas 352 Mich (1958), Jur, Compen- NW2d 439 citation is made to Am58 Workmen’s 508, sation, 2d, Compensation, at § now found 82 Am Jur Workmen’s rule, actually which iterates the broad but § the rule set forth in opinion by and utilized this Court was as follows: judicata subsequent proceeding, the doctrine of res to bar "[F]or a precise preceding issue of fact law must have at been issue and decided White, adjudication.” supra, 211. White, Hlady, supra, prior In Jurispru- both and 508 of § American However, Hlady, supra, dence were cited for the broad rule. 375-376. subsequently the narrower rule was articulated: applies judicata only previously doctrine res "[T]he to facts litigated, points adjudicated but also to necessarily of law which were determining deciding subject litigation.” and matter Hlady, supra, 376. applied It by was this narrower rule that was then this Court in resolving Hlady, supra, the issue in 380. Finally, Briggs Co, Manufacturing in Kubiak v (1938), quoted, NW 427 the broad rule and the narrow rule are both Kubiak, However, supra, again 333-334. it was the narrow rule which applied preclude judicata thereby was the bar of res affirm an prior award of for an which existed to the first adjudicated. award but was not therein citing rule, What has occurred is a broad narrow each alongside other, actually applying only but the narrow rule. 7 Hlady, Court, by the decision of the authored Justice Thomas signed Kavanagh, concurring four Justices. A signed by Matthew opinion authored Justice then Chief Justice Levin Kavanagh agreed Hlady that Ms. Thomas Giles was not entitled to judicata, pp benefits but would not have based the denial 386- judicata, expressed 387. As to res the Justice Levin rule common general opposed compensation, law to workers’ "that all issues which were or could have been raised in an action are barred added), (Emphasis However, pp under the doctrine” 385-386. he stated law, change fact, his view "a in the like eliminates continuing the bar of res where the claimant seeks providing ”, p under a statute 'income maintenance’ 147 409 176 Opinion Williams, J. by litigation, finality 2d, 46 Am Jur ensure in Judgments, p 395, 559, § workers’ liberally legislation is to con- remedial strued. Given tion, legisla- the remedial nature favoring always finality policy is not purpose behind workers’ com- with the consistent pensation, integrity to maintain fiscal which is wage-earning capacity persons has been whose supra, suspended Hlady, 390- or See terminated. J.); generally, (opinion see, v Lahti Levin, Fosterling, 578, 589; 99 NW2d 357 Mich (1959). judicata It is for this reason applied narrowly cases. workers’ today we reaffirm the for this same reason It is application Hlady of res vis-a-vis limited compensation. workers’ Morgan

B. analyzing bar under the the cases at Prior to Hlady rule, however, to discuss it is beneficial Morgan Artcraft, v Freedman (1977), of denial of cited the Court the case NW2d panel reversing Appeals the WCAB’s in Gose. Morgan, injured June the claimant was involving 16, a forklift truck. He 1970 accident hearing benefits, for at the held filed a claim May but expressed 1971, the inten- 26, claimant by tion to return to favored work offered employer 7, 1971. Under commence on June any unnecessary circumstance, fact it for this finding claimant was to be made as to whether the permanently totally or disabled whether capacity to within the favored work was perform. claimant’s hearing with an The first was resolved as of the June award of benefits terminate claimant was scheduled Subsequently, 1971 date when the begin however, fa- favored work. Gose v Monroe Auto Opinion Williams, vored work was not commenced reasons dispute. Morgan, 28, 1972, on September Plaintiff brought a pursuant second claim to which further benefits were ordered. The second claim was brought for disability period from the 7, beginning 1971, June the termination date of benefits, 19, the prior 1972, until September at which time the claimant commenced other em- ployment wages greater at than his pre-injury wages. The award of benefits was reversed by the WCAB on Appeal based res judicata. was taken to and, this Court in lieu of granting leave to appeal, a per curiam opinion was issued which reversed the WCAB. Our reversal was on based this Court’s unanimous view that judicata did not bar plaintiffs second claim. We stated the following: disagree "We application with the WCAB’s of res judicata perceive in this case. We at issue hearing second before the referee have been twofold: disabled, whether significance claimant was and the plaintiffs and declining effect apparent of an offer of favored work. The evidence available to the referee prior incomplete his first decision was on these issues. Evidence at hearing, the second considered on its merits, led the referee to conclude that claimant should Morgan, receive a second supra, award.” 55-56. of Morgan facts scope demonstrate that the first hearing was of a limited nature due assumption, erroneous, proved later favored work would be by commenced the claimant of a specified 7, date. The issue post-June of claimant’s 1971 disability refusing to perform favored work had clearly never been considered at original hearing and was not to be accorded res judicata significance under the dictates of Hlady.

Given the rule espoused and the basis Hlady, ‘ [June 409 Williams, Opinion Morgan, nonapplicability of res for analysis at bar. of the cases to an now turn we

IV. Gose supra, plaintiff A, Gose in Part I discussed As against in 1968 defendant filed a claim for benefits employer Injury based Fund defendant Second "industrial had suffered the claim perma- legs, insanity, total use of both loss of nent indicated, deposition injuries”. disability, As earlier and related presented testimony some Lipton, plaintiff’s witness, Dr. as to plaintiff’s psychosis. At the De- the existence closing hearing record, cember insanity attorney plaintiff’s however, withdrew any prior thereof determination claim hearing background, we must Given this referee. sufficient, circumstances are these decide whether under the judicata, to bar reasser- doctrine of res insanity find, the claim. We within tion of compensation they claim, are of a worker’s context not. Chicago Co, 308 Pneumatic Tool v Laichalk (1944), this Court dis- 298; Mich cussed the claim that had been filed determination. tiff’s adjudicated NW2d impact of a worker’s prior and withdrawn plain- "[bjecause This Court stated: * * * nothing petition withdrawn, was was proceeding, it has no effect in that supra, present petition”, plaintiff’s Laichalk, on insanity only in 301. It is irrelevant Gose portion unlike Lai- of the claim was withdrawn claim was withdrawn. chalk in which the whole insanity one Gose, one for claims two use of both industrial loss of for legs, involving due to point separate totally of law and no

were adju- "necessarily insanity claim Gose v Auto Monroe by Opinion Williams, J. determining leg disability dicated” in claim. Hlady, Therefore, under the rule announced plaintiff’s insanity judi claim is not barred raising matter, cata. It is not the of a but adjudication or decision matter which re quires application of the bar. See Tucker v Rohr (1864);Morgan, supra. back, 73, 13 Mich As was Co, 530, stated Machen v Budd Wheel (1933): 535-536; 251 NW 580 upon "The doctrine of 'res princi- rests judicata’ ple question that a determined once a court of competent jurisdiction by judgment on the merits * * * litigants forever settled so far as are concerned.” added.) (Emphasis question finding We do not of the Adminis- Judge plaintiff’s insanity trative Law claim prior hearing. was a "triable issue” at the How- adjudi- ever, the fact that a claim could have been hearing cated at an earlier is not a basis for invocation of res within the context of compensation, supra, Stokes, workers’ see

V. Sanders supra, September As B, discussed Part I 27, filed a workers’ against employer Injury claim her and the Second alleging permanent disability Fund total and legs system. back, her and nervous Benefits were statutory awarded for the 500-week maximum period employer Injury from the but the Second finding Fund was not held liable based on the that plaintiff proof had "failed sustain the burden of permanent disability total establish de- as by appeal fined the statute”. Plaintiff did this finding. 147 409 Mich by Opinion Williams, J. petition on December second a

Plaintiff filed permanent alleged petition total and 1972. This legs. use of both loss of industrial due compensation, appeal an award from On change in no there was determined WCAB plain- physical condition, and that the claimant’s recovery by res therefore from tiff was barred Hlady. forth in as set by Ap- finding the Court was reversed This Corp, peals, v General Motors Sanders (1977). panel App found 263 NW2d excepting possibilities case from the this for two postulated by theory judicata. The first bar of res hearing Appeals first was that the Court place could not a time when the referee at took yet permanency of the claimant’s determine supra, disability, Sanders, The second con- legal that, since the standard the fact cerned affecting by rights had evolved claimant’s judicial pronouncements the first and between might hearing, entitled to now be claimant second hearing finding be first could in the if the deferring postponing merely final deter- read supra, Sanders, 195-196. mination. agree "possibility” can the first do not

We original gleaned reasonably determi from the leg plaintiffs Complete dis as to evidence nation. hearing presented ability referee and the findings specific thereon.8 Absent made injuries permanent plaintiffs claim As to total hearing back, legs system, the first the referee at her and nervous follows: stated as Michigan Second State of "It that defendant is further ordered hereunder, having liability failed to Injury Fund has no disability as proof total to establish sustain burden added.) (Emphasis by the statute.” defined record, disturbed finding supported it cannot be As of fact Corp, Casting Rapids Die Dressler v Grand this Court. (1978). 243, 250; 262 NW2d Gose v Monroe Auto by Opinion Williams, condition, physical findings claimant’s these are judicata. do Similarly, we not find the second "possibility” reasonably gleaned original can be from the deter- in nothing mination. There is of the record the hearing first to indicate an intention to postpone And, or defer final determination. as the majority this of Court stated in Hlady regard to a subse- change in quent the law: issue, "Plaintiff may necessarily concede an deter- ** *

minative of judgment and included then, successfully after another has raised the issue she * * * contest, did not wish to ask for relief. The doc- trine of res happening.” bars this from Hlady, supra, 380. Although plaintiff asserts to this Court that her had, fact, physical condition changed between hearings, time first and second WCAB found specifically as a matter of fact that no such occurred. Because there exists a basis in the record for of of finding this fact WCAB,9 it is conclusive and not by reviewable this Court, Dressler v Grand Rapids Casting Die Corp, (1978). 243, 250; 262 NW2d 629

Plaintiff finally asserts first hearing solely determined her of disability as the Novem- ber, date, and, therefore, 1960 injury there is no hearing bar to a second an occupa- establish tional disease day date as of the last work, April, 1963. The record belies this conten- tion. decision referee at first hear- ing 15, designates April work, the last day as the date of disability. finding upon testimony plaintiffs This was based medical

expert, Baker, M.D., begun treating plaintiff Thomas C. who had prior hearing to the first and had last examined her in 1974. 409 Mich 147 Opinion Williams, J. prior there was a the fact light asserted, plaintiff’s now of all issues

determination judi- of res application barred claim is present cata. Conclusion

VI. of the context judicata of res within The rule Michigan is as follows: compensation in workers’ only to judicata applies not of doctrine res "[T]he points of law litigated, also to previously but facts determining in and necessarily adjudicated which were Hlady, litigation.” subject matter of the deciding the supra, rule, of affirm the Court we In of this light Gose in as we conclude reversal Appeals withdrawn and was was insanity claim plaintiff’s per- of law points previously adjudicated not in necessarily adjudicated not taining thereto were (leg matter deciding subject determining Laichalk, supra. prior hearing. disability) Sanders, Appeals Court of reverse the As to we in- claim plaintiff Sanders’ we find because necessarily litigated facts previously volves hearing. in first Because determined condition, change in physical a has established res is now the doctrine she barred Hlady. interpreted Gose WCAB

Affirmed and remanded to the doctrine regard without for consideration Sanders remanded reversed and judicata; on res based denying entry of order judicata. Williams, Jr., J., Moody, with concurred

Blair J. Gose v Monroe Auto by Levin, J. (dissenting). judi- The doctrine of res

Levin, relitigation previously a cata bars of claim or issue adjudicated. prior separate proceeding, Gose,

In it was compensa- determined that he was not entitled to legs. tion question of the for loss industrial use of his The presented petition now is whether this seeking compensation insanity for incurable barred the earlier determination because both efforts obtain seek to enforce the permanent disability. same claim total and previously it Sanders determined that she had not established and total loss legs. question use industrial of her present petition exceptions whether her is within general principle relitigation precluding to the of a previously adjudicated. claim or issue Although reading colleagues’ my opinions might impression leave one with the that question general princi- that divides us is whether ples judicata apply compensation of res to workers’ my disagreement opinions cases, with their is grounded they applied in a belief that have not principles deciding those these cases. judi-

The Court states that the doctrine of res applies compensation cata in workers’ cases as it litigation does in all other civil and then con- analysis cludes, without of the doctrine of res judicata, policies, its the facts and circumstances of history applica- cases, these of the doctrine’s general litigation practice tion in civil or the procedure compensation cases, workers’ that petitions precluded. Gose’s and Sanders’ are "[t]here The Court states as to Gose that can be permanent disability” but one claim for total and single obligated and that he "was advance proceeding every alternative which could basis 409 by Levin, support hold would Justice Williams this claim”. applies judicata in work- that ers’ actually the doctrine only compensation that were to "issues cases litigated fact”, and since as a matter incurably question insane whether Gose the was not litigated that he was it was decided when compensation legs, of the indus- for loss not entitled trial use of his on the merits a determination of his ground petition of incura- precluded. insanity is not ble agree that in work- Court’s statement I with the general litiga- as well as ers’ tion the adjudicated cases all issues single of res bars

doctrine respect adjudicable ato or But that does Whether one not decide Gose. claim. endorses res application of or a "broad” a "narrow” presented question judicata, is what consti- the "claim”. tutes conclusory terms— In Gose the Court states —in bases of

that for total and the seven alternative (two of which insanity use of loss of industrial incurable are legs) I would hold that each but one claim. are separate therefore claim and alternative basis subsequent preclude litigation does not one litigation of another. agrees it with

In Sanders the Court states petition Sanders’ second Justice Williams asserting claim same barred because she is adjudicated against previously It to re- her. fails petition spond exceptions is within her her contention that ordinarily preclusion re- to the previous adjudication. hold that I would sults from exceptions recognized within Sanders’ case falls general rule.

I left ankle a cut below In 1946 Gose suffered Gose v Monroe Auto by Levin, developed and an ulceration. cut The never healed completely. reinjured 1953, In he fell and the same hospitalized Thereafter, he area. was several times graft operations. skin able, and underwent When periods he returned to work for short and was sitting given 1960, work. In Gose had to cease completely. By developed 1961, work he had circu- complications latory right leg in his and was un- able stand walk for more than ten minutes suffering pain. without severe because of persistence leg ulceration, of the left his was amputated below the knee. He was fitted with a prosthesis experienced breaking and at times open stump. depressed amputation

Gose became after Ypsilanti Hospital. and was admitted to State Thereafter he was released and readmitted several three-year period ending times, May, once for a placed 1971. He was then in a room and board arrangement. general

From 1953 Gose received 500 weeks’ petitioned benefits. He then for further compensation and an additional weeks were paid. voluntarily petitioned In 1968 he for total permanent disability describing legs, as "industrial loss of use of both insanity, permanent disability total and re injuries”.1 lated deposition Gose’s was taken. He testified the 1946 and 1953 injuries leg to his left amputation. and the treatment He also problems right leg testified beginning with his in 1961. He could right leg not stand or walk on the experiencing pain. without He was right leg unable to use his for more than ten minutes and had to rest significant periods between uses. deposition Lipton of Dr. was also taken. He testified that Gose’s leg amputated left below the knee due to a skin ulceration caused injuries addition, diagnosed suffered in 1946 and 1953. In he circulatory right obliterative arterial disease of the limb. This was calf, pulse evidenced right foot, a swollen and tender the absence of a in the pain and severe in that area. 409 by Levin, J. Dissent 1, 1969. Gose’s December hearing

A was held he that was the statement lawyer began with which relates "withdrawing part that claim proofs in We did not offer insanity. to the claim of do not want a decision made regard, and we for the case would like instead regard. in that We legs.” of loss of both allegation on the proceed to not object did employer for the lawyer for reservation request withdrawal this of insanity. on the issue decision per- benefits for total and The referee awarded Compensation manent but the Workers’ impairment Appeal Board reversed because from right leg injury did not result Gose’s and "therefore leg loss of the left which caused the result of the impairment employ- such relationship”. ment total petitioned Gose then 2 The referee insanity. benefits based on Lipton diagnosis psychosis. This testified to a third Dr. —chronic developed it on direct. On cross-examination was

was not further diagnosis diagnosis his was based on the of the doctors revealed that at observed processes Hospital, slowing Ypsilanti of Gose’s mental State impaired memory. by Gose’s He him in an interview and regarding possibility questioned suffered from some Gose was form epilepsy. Lipton hearing, depositions Dr. were offered of Gose and At the Ypsilanti employer from a doctor at in evidence. The State leg industrial offered a letter diagnosis right Hospital Lipton’s of Gose’s who confirmed Dr. opinion problem expressed it not related to the his that was but leg. to his left deposition psychiatrist hearing, of a who At the Gose offered part: testified in depressive suffering "Diagnostically he I felt that was from anxiety. His arises or is caused reaction associated with his industrial accident. He has a condition reaction, history schizophrenic which, paranoid type apparently, him was at the time I saw depression, Although I his his brother’s death worsened remission. amputation primary loss of its was the accident and feel that cause aging, leg. prognosis poor he I and that his felt that his due again may require psychiatric hospitalization future.” deposition psychiatrist. In his of a also offered the Defendants organic syndrome opinion, which was due Gose suffered from brain Gose v Monroe Auto by Levin, "incurably found that Gose was insane” and "is permanently totally disabled”, but that his precluded by judi claim was cata. the doctrine of res The WCAB affirmed.4 Appeals citing order,

The Court of reversed Morgan v Freedman Artcraf t.5

A petition insanity Gose’s based on incurable is not petition barred res unless that and his previous petition based loss of industrial use of legs single both seek to enforce a claim. circulatory deficiency. He not did that Gose’s feel mental illness was injury related to his work. at injury leg amputation Gose testified to the his events of and and to depression get job, the severe useless he felt afterwards. He could not felt killing and felt like himself. He was cross-examined about possible might seizures he had have in 1964 and 1966. 3 incurably "Plaintiff is insane as determined court decisions and permanently totally (Sprute Herlihy disabled. v Mid-Continent 574; App (1971)].) concept Co Mich [32 189 NW2d 89 The of a triable part judicata. issue has been raised as of the res defense of This has rejected by many occasions, been application the court on but I find that it has prior Appeal instant case. The order Board shall therefore control.” 4 appeal, "In the quote brief on construes the in the prior opinion exclusion, by board, board as of the issue of insanity reject and reservation thereof for future trial. We construction. parties, referee, drop "It is not unusual for the at trial before the dates, augment various delete add new ones and sometimes either or petition. simply claims made in the Often a board decision will pleadings. note these alterations in the petition sought designation "Plaintiffs permanent of total and disability provisions alleged qualification on the basis of under certain definitive permanent designa- statute. The claim for total and pursued tion issues, was though to a conclusion even one insanity, by plaintiff. was abandoned correctly concept "The referee concluded that the issue triable application has to the instant case.” 5 (1977). Artcraft, Morgan 54; v Freedman 401 Mich 257 NW2d 85 This CouVt held that where evidence available to the "[t]he referee prior incomplete issues, to his first decision was on” the the first judicata. decision was 147 409

188 by Levin, recover total worker could 1954 a Before disability permanent specifically suffered certain benefits if he totally if he was losses or enumerated 6 permanently insan Neither in fact. disabled and ity legs specifically of industrial use nor loss the workers’ amendment Since enumerated.7 compensation issue of total and "the act in permanent plaintiffs injuries whether not one of fact but within of the enumer one

come in the act. forth”8 ated losses set permanent single claim, based on total and Legisla- fact, when the was abolished specifically enumerated al- seven ture substituted recovery. bases for the exclusive ternatives as to be bases continue alternative While the seven Co, 11; Springer Foundry 346 Mich & Machine v Seed See Light Corp, (1956); Michigan Alloys v Edwards NW2d (1956). 7, infra, statutory language for the See fn 77 NW2d 567 it the 1954 amendment. read before following provision: amendatory language replaced the The 1954 arms, feet, legs, hands, or or both or both or both of both "The loss thereof, any eyes, constitute total shall both according provisions compensated of section 9.” disability, to be 1949 PA 238. portion the act as following of is the text of relevant 1956, adding clause 7: amended in 1954 and further amended ** * disability, compensation permanent and "Sec. 10. Total hereof, provided in 9 means: which is section "(1) eyes. permanent sight of both loss Total "(2) legs or or above the ankle. of both both feet at Loss "(3) wrist. both hands at or above the Loss of both arms or (2) (1), "(4) any 2 or faculties enumerated Loss of of the members (3). or "(5) legs complete paralysis or or both arms of both Permanent and leg of 1 and 1 arm. "(6) insanity imbecility. Incurable or "(7) legs or both use of both and total loss of industrial Permanent arm; purpose leg of this 1 for the or 1 hands both arms (7) 30 permanency to not less than be determined subsection such injury.” days expiration from the date of 500 weeks before the 412.10; 17.160, 1956 PA 195. as amended MCL MSA 8 605, 612; Corp, Mich v Products Hier Boichot Concrete 636; Co, (1967). Verberg Simplicity Pattern See v NW2d 753 99 NW2d 508 Co, Liesinger (1959); v Owen-Ames-Kimball (1966). 158, 164, fn 139 NW2d Gose v Monroe Auto by Levin, collectively referred "total and disability”, only those are words now shorthand expression category They of a of entitlements. operative have no effect and their deletion would meaning of the act. With or with- provides words, out those the act the seven Injury described situations the Second Fund shall pay differential benefits and there is 800-week presumption disability. conclusive To continue give meaning perma- to the words "total and disability” contrary nent is to the amendment’s purpose discontinuing compensation for total permanent disability providing in fact and any where of the seven distinct statutory bases established. operative

Since the effect of the words "total and permanent disability” eliminated, has been all links the seven alternative bases for the 800- presumption week conclusive and differential bene- they fits are that are enumerated in the same subsection act.

Although disagree I with Justice Williams’ statement that in workers’ cases the actually doctrine of res is limited to issues litigated tendency fact, as a matter of of his may majori- statement be more accurate than the ty’s disassociating statement. itself from his majority statement, that all states matters "arising out of the same transaction” must be presented "piecemeal compen- at one time to avoid injury.” sation for an litigated”

If actually what is meant "issues actually litigated”, "claim rather than the facts presented support opposition claim, of or to the then Justice Williams’ formulation would be more accurate than the Court’s statement that renewed litigation "piecemeal compensation” are incon- 409 Mich by Levin, proper of the work the administration with sistent explain compensation not Court does law. The ers’ necessarily why scope defines the the "transaction” claim, the term nor does it define of the transact or what it means "same "transaction” requir Further, statement the Court’s ion”.9 "present ing of his available the all worker single proceeding with is consistent in a claims adjudicating purpose needs” worker’s this practice history present of and to consider fails in the administration tion law and overstates compensa of the workers’ preclusion scope of the prior litigation. resulting from Although that Gose’s second the Court stresses application, disability first, his seeks as did arising ankle, his left from personal importance. Unlike of little or no injury claimant, claimant a workers’ present arising obliged out of a all claims is not proceeding. may, single injury for exam- in one He specific ple, loss recover 162 weeks’ seek first to subsequent and, foot in a of a benefits for loss proceeding payment benefits, of those seek after arising general of the same out applications seeking injury; benefits for loss of separate general assert and for the foot although purposes they claims for transaction, there was no out of the same arise support- physical condition and facts pro- ing the first were known when both claims (Tentative 1978), Judgments, pp 2d Draft No. Restatement See 142-143: transactions,’ 'transaction, expression or series of connected “The definition; mathematically precise capable it invokes a of a pragmatic applied to the facts to be with attention standard underlying is the need strike delicate And standard cases. balance hand, between, of the defendant and the one the interests other, and, litigation bringing to a close on the of the courts in just vindication of a claim.” in the interest 15, infra, accompanying text. See fn 191 Gose v Monroe Auto by Levin, J. Dissent ceeding Similarly, instituted.10 a totally dis suffering abled worker one of the seven enumer general ated losses choose to seek may disability first specific and to defer his loss claim. general on a hearing Often claim place takes years applies before worker for a hearing on a claim for loss of legs industrial use of out arising The injury. hearing the same on loss of legs industrial use is frequently deferred until period. conclusion the 500-week At the hearing, deferred there is no inquiry whether there has been condition since the general hearing. Renewed litigation and piecemeal compensation are thus characteristics compensation workers’ proceedings.

B Court The states: "There can be one permanent but claim for total and disability. Although recognizes the statute alter- seven it, establishing

native bases for evidence more than one basis only would occasion one award.” can agree one award

One be only there can for total and disability without con- be but one claim can cluding there such for compensation arising single from a Gen- accident. erally, right there is but one loss. judgment A securing compensa- successful merge tion will with the This is not be- loss. so plaintiff cause a only is entitled to one chance damages secure because he is be but entitled compensated once. A only claim would have been barred had the plaintiff may failed Co, Briggs Manufacturing See Kubiak v NW (1938). 409 by Levin, merged judgment he in the should

nevertheless prevail.11 question whether a before us is has failed where claim will be barred in a mine requires prior suit, that we deter and this claim. on the same if suit is based the second continues: The Court although upon a different petition, second "Gose’s (insanity loss of use of both instead of industriad

basis legs), claim of total and seeks for same nonetheless arising permanent disability from obligated to in advance injury to his left ankle. He was basis which could single every alternative proceeding a support this claim.” single pro- obligated in a to advance was Gose (CA 2, Corp, Champion 525 F2d v International In Herendeen 1975), seeking pension plaintiffs previous benefits under an oral suit subsequent agreement theory under a no to a suit for benefits was held bar during employ- acquired rights years of his that he had vested alleged right acknowledging to receive that the same ment. While cases, judicata that res in both the court found benefits was involved did not judgment apply the action would not the in second because first, identity” between the the there was no "measure of conflict with cases, substantially different evidence and facts and issues in was two liability. Surely, required proof separate of had for theories suit, again plaintiff prevailed he seek the in his first could not theory. pension on a different same (1956), 31, 34; Musgrave, Casey 292 P2d 1066 v Nev by plaintiff judicata the value of his not found to bar a suit for was though failed to establish he had earlier tried and services on a ranch partnership The court a stated in the ranch based on same services. however, enough, and "it same circumstances have, general, Certainly given his rise to both cases”. transactions merged a with favora- claim the value his services would have judgment partnership on the services. ble a based same Imel, App Conservancy Dist v 146 Ind Fairwood Bluffs (1970), sanitary a sewer which NE2d 674 overflowed onto the Imels’ fraudulent damages, concerned an easement for failing alleging property. in an action After seeking and inducement and rescission the easement claiming a second action Imels commenced damages. asking and and sewer was nuisance for abatement predicate of overflow that the common factual the sewer court found did not call for application the evidence of res because substantially necessary But had two differed. to sustain the suits damages, they plaintiffs succeeded their first suit for rescission seeking on nuisance not have maintained another action based could damages. additional Gose v Monroe Auto by Levin, ceeding every sup- alternative basis could port only truly "this claim” if one there claim.

Under the workers’ act a "cause sustaining of action” or pensable "claim” is the a com- Compensable employee. strictly narrowly disabilities are defined any the act and are the basis of entitlement. An gives resulting injury accident rise to no right compensable unless dis- ability ensues.

The Court defines the claim as one "of total and permanent disability arising injury from to his left (Emphasis supplied.) is, ankle”. however, There no injury such claim. Gose suffered an to his left may totally perma- ankle, and have been nently result, disabled in fact as a but he would have had no claim to differential/800-week conclu- presumption perma- sive benefits for "total and disability arising nent from to his left disability specifically ankle” unless he sustained a pertinent enumerated act, section of the e.g., legs loss industrial use of both or incurable insanity.

Suppose totally disabling a worker suffers a occupational disease which also causes him to lose legs. can, industrial use of both He under occupational petition general section, disease for disability prevails benefits; total if he he cannot claiming permanent disability total and collect compensation employer further from his for the disability (although may total such a claim entitle Injury him to differential benefits from the Second Fund). disability He has and suffered one total can only has, recover one award for that loss. He however, suffered under circum- give stances which rise to two claims. 409 by Levin, asserting distinct stat- he makes claims

Because prove inability utory claim entitlements, his to one although of the he his other is no bar to assertion injury. In the one on the same both claims bases prove to a total due he to case seeks are of characteristic and conditions which causes employer peculiar to the business compensation right under ch 4 of the a to hence prove a seeks to work-related act. In the other he permanent use of both and total loss industrial compensation legs right 3. under ch thus a that his disabil- in his first suit If it is determined ity occupational but is not is work-related relitigation disability, of those is issues disease or precluded preclude the other that does not but for loss of claim and total claim—a legs. use both industrial insanity no less Gose’s claim based separate statutory is prior from same it derived claim because claim. In the one

section as his prove of use of he work-related loss case seeks legs, insanity. other work-related both compensa allegedly accident caused two Gose’s therefore, and, had two claims. he ble disabilities tog litigate obligation them no He was under ether.12 injury to has for an "It been held that an award anatomy portion of not a bar to a subse-

one member or one quent anatomy, portion application injury for an to another member accident, original out of which the sustained the same award arose. "* * * (1934), 329; Skelly Gage, 29 P2d 616 Oil Co v 167 Okla [I]n for certain the court said: 'Where specified injuries, claim is made for some of these and the commission awards for others, apply injuries the rule and does not award for we will award, injuries will in the but res presume to those not mentioned adjudicate upon them that the commission did not intend ” Compensation Judi- Awards —Res at the time.’ Anno: Workmen’s cata, 122 ALR (1923), Case, Spencer’s it was held that Me 121 A original agreement compensation specified where v Monroe Gose Auto by Levin, c

Although prior present practice and do not re quire presentation arising of all claims out of the injury proceeding, or same transaction in one might promulgate requirement. Court such a policy question it Whether should do so is a suggests the Restatement should be determined "pragmatically”.13 single While no factor is deter provides minative, the Restatement and the cases indicate that trial convenience is often the deter minative factor with the focus on "how far the proofs witnesses or the second action would overlap proofs tend witnesses relevant first”.14 proofs Manifestly, tending Gose’s to show incur- insanity overlap proofs able do not his in the proceeding attempting earlier to show loss in- legs. leg dustrial use The to the and its "amputation fingers hand”, approving first and second left the order agreement judicata, petition such permanent was not res in a later for benefits for impairment injury apparently of the left thumb. The petition. at the existed time the first See Anno: Com- Workmen’s pensation: jurisdiction review, reopening, modiffcation, time and for agreement, or reinstatement of award or 165 ALR 48. Co, Conroy (1975), In Hill v Brothers 306 Minn 237 NW2d 606 employee injuries April sustained lower back and October temporary disability 1966. He was awarded for toted and 30% permanent partial disability. hearing, employee’s At lawyer re- quested question that the of his toted and due to injury aggravating pre-existing the back emotional condition be findings reserved and no were made on that issue. employer petition perma- claimed later total and nent was barred an earlier determination that disability issue was employment. was not related to the The court held that the passed upon by reserved not referee subject by address two workers’ commissioners presented litigated the mistaken belief that the claim had been permanent disability judi- did cata. make the claim for total and res 550; See, also, Co, Campbell Soup Westendorf v Minn (1976). NW2d 157 (Tentative Judgments, 5, 1978), §61, Restatement 2d Draft No. b, pp comment 142-143. 14Id. by Levin, J. Dissent overlap; only are the areas

work connection (collateral judicata aspect of res of the doctrine relitigation estoppel) The of those issues. bars Gose’s proofs unrelated because and so distinct are differential/8Q0-week although petitions, both for presumption benefits, to enforce seek conclusive separate the act. under claims personal injury action, the

In with contrast gener- compensation inquiry case in a workers’ compensable disability ally the under whether or and not whether how established has been act disability, injury rather It is the occurred. the accident, the which best defines or the than scope claim. of a workers’ changed the na- act The workers’ injured in his to which one ture of the remedies employment The need not entitled. worker negligent employer prove or other- that the disability focus is the and at fault. wise point litigation in ordi- the breach. The central nary negligence thus from a actions is absent replaced by compensation case. It is the workers’ disability. compensable employment nexus i) proof: elements of three basic There are he has a dis- that suffered must establish worker compensable is, ability he under the act—that ii) compensable example, incurably insane; disability caused he suffers must have been iii) exposure; the accident or or the accident disability compensable exposure which caused employment to be nexus must a sufficient have in the course of to have occurred deemed employment. exclusively elements focus and second

The first Only compensable specific condition. on the of the accident to the circumstances looks third exposure. here, will cases, the worker most Gose v Monroe Auto by Levin, injured premises be on the there will no be question adequate employment there is an nexus. The contest will center whether alleges worker suffers from the he whether that is due to the accident or exposure. goals One of conve- —trial adjudicative

nience and the efficient use of re- by requiring sources—would defeated separate compensable claims for disabilities be joined. question ordinarily presented

through expert testimony, and, often difficult for costly unnecessarily sides, both to assemble. It is require burdensome to a who worker seeks differ- presumption ential/800-week conclusive on alternative bases —"total and loss of sight”, insanity”, "permanent "incurable and total legs” present expert loss of testimony use of industrial —to grounds on all three when he antici- pates prevailing Requiring on one. the worker to obliges employer expert do so also the to assemble grounds. testimony on all Adjudication proceeding multiple in one bases recovery unruly, for would be all for the various they claims would have common is that all injury involve to the same worker. For each com- pensable disability alleged, compensable the condi- sight, insanity, tion —loss of loss of industrial use— proved would have to its be as would work-related- essentially ness. The result would be a series separate being together. cases all heard prevails perceived

If the worker on he what strongest claim, be his the additional investment money prove of time and will to have been unnec- essary. required bring If the worker were not all ripe petitioned together, may claims he have by Levin, alone, secured benefits claim strongest his employer proofs on himself or his put never Adjudication proceeding one other claims. promote will not trial multiple recovery bases workers’ needlessly It will extend convenience. Because common proceedings.15 to the compared when is so small area of contest proofs, common separate areas of issues single a or accident origin of disabilities for res the measure of a "claim” should not be judicata purposes.16 in- personal familiar with

Lawyers judges cases, parallel negli- seeing the between jury proceed- gence and a workers’ action considerations, espe pragmatic Vestal endorses view that "single convenience, govern cially the determination of a should trial claim”: might analyze approach be to in terms of trial "Another facts judiciary. Judge time of the Clark and the best use of the convenience test, stating: suggests pragmatic use of such “ pragmatically of the to be determined 'The extent cause is court, particular having the facts and circumstances mind past precedents; may but the control- Such be settled case. ling extent convenience, for that is the trial factor will be matter procedural general purpose by these rules. Such to be subserved vantage study, point of the purpose not from the should be considered courtroom, looking presented they at Pleading will from the the facts but (2d ed), Vestal, p [Clark, Res trial.’ Code 137.]” at the actual (included appendix Injury as an to Personal Judicata/Preclusion Bender]), pp Matthew V-46—V-47. [NY: Annual —1969 of what consti James and Hazard note that a narrow definition advantageous: single may tutes a claim well be "Where, however, factually quite so that there claims are distinct them, overlap presenting support much less be no in evidence to will together, including by trying them in a sin- them to be saved them Indeed, gle trying together separately. lawsuit to be tried factually may distinct claims should prejudice. And an insistence that cause confusion may all in other be included the action have parties scrape disadvantages. thing it the For one will tend to make possible claims which the bottom of the barrel to find and include they affirmative altogether willing a of their own are not to have cut off as result (in suit), parties may bringing although conduct the same willing This to let these claims drift if their hand is forced. be kind of litigate words, may parties compulsion, in tend to make other Hazard, potential & Proce- claims to the James Civil their dure utmost.” (2d ed), p 543. Gose v Monroe Auto by Levin, J. ing grounded personal injury, are that both may simplicity to be inclined think in terms of the finality resulting lump- of one trial from a and, sum verdict neatness, legislative effort to an achieve the same to overlook the differences between the compensating for

scheme work-related system compensat- and the common-law for ing personal injury. other negligence

In a action the trial unit is the Usually accident. undisputed accident occurred is person tripped. collided, cars

—two The contest centers on the cause of accident (which yield, car failed to whether the floor was slippery) and whether the cause was attributable (whether duty negligent to a breach of it was yield, person have failed whether a reasonable floor). mopped Litigation would have is focused relating the facts and all accident claims joined. to it must be The effort is to determine who is at fault. Once that is determined the innocent culpable party damages. or less is entitled to He injuries pigeonholes. need not fit his into negligence required action, In a the trier is predict likely complications future dam- ages lump compensate and to ascertain a sum to past, present damages. and future There is no passage modification the verdict where even proves prediction erroneous, of time and a damages resulting second suit for the same from permitted breach is not even if has been a there physical circum- condition or other context, stance. In this is entitled to the defendant plaintiffs rely arising having presented on the all claims expects only from breach. He have to defend one suit. compensation proceeding

In a workers’ that an undisputed. likely accident will occurred also 409 Mich by Levin, J. Dissent similarity There is no ends. But this is where door-opening to the determination issue similar rights negligence or liabilities action. No in a fault can be that examining All the accident determined the accident is that needs to be known about usually capable work-related, this is it is proves ready that he A who worker determination. prove employment injured still must his was disability. compensable The trier a that he suffers does not modification subject lump sum; are award a awards change. The em- as circumstances hearing expect finally ployer one will does application may be, claim; on the there resolve hearings years. party, over the countless either compen- alleges Nevertheless, when a worker present required disability, he all issues sable If he claims loss of industrial to that claim. related use present legs, must all theories of both he justi- support employer may that claim. liability fiably expect that his for the condition of legs finally unless will be determined the worker’s change. has But where the worker circumstances compensable disabilities, he need not two suffered seek single petition, when in a even single originate accident the disabilities occurrence. hearings hearings like The two Gose seem separate were claims cases because two distinct question had In was whether Gose heard. one leg right use of his suffered loss of the industrial left, of the use well as and whether that loss his right leg of his the was traceable to his accident. inquiry other, was whether Gose insanity to his was due insane and whether leg amputation or a brother or to the death his physiological disorder.17 himself, lawyers, claims. saw distinct No doubt Gose or his two proper application This is relevant of the doctrine: Gose v Auto Monkoe by Levin,

Although application the Court asserts that of litigation judicata principles compels res civil the case, in this result it not does consider how those principles applied litigation. have in been civil Michigan in Recent cases placed great and elsewhere have weight differing on factual bases for the two duplication said to be one and on the claims extent of determining

of evidence in whether an judicata.18 Application action is barred res of examining plaintiff "By the motive of and the reasonable parties, expectations may possible it be to decide whether or not whether or not the tion. action way, the second should be allowed—stated in a different plaintiff guilty proscribed repetitious litiga- is may plaintiff "It be discovered that the who was successful in Suit I (1) bringing get is recovery relief, the second suit because he did not the extent of (2) to, seeking he felt he was entitled he is different different (3) factually he that suit believes the second involves a (1) (2) claim. If the motivation of the or either then it suing Only would seem that he is that saying, the same if claim. he believes situation, ground this different is a factual is there some approach, may under this he that allowed maintain the Vestal, supra, pp second suit.” fn 15 V-47—V-48. Ass’n, Backproperty In Sheridan Drive Ass’n v Woodlawn Owners (1970), App plaintiffs, property 29 Mich 185 NW2d 107 whose was contiguous lake, contiguous sought ato road which in turn to a rights. riparian determination their The Court held that res judicata though question bar did not the suit of backlot owners’ rights previously litigated: access the road had been rights "The evidence established the existence Sheridan plaintiffs’ rights riparian Drive is not the same that determines in the Id., pp lake.” 68r69. Rose, adopted App The Court utilized the test Rose v Mich 233, 236, (1968): 237; 157 NW2d 16 determining identity "The test for of claims is set in 30A forth Am Jur, Judgments, [p 365§ 407]: " application 'In judicata, of the doctrine of res if it is doubtful first, whether a second action is for the same cause of as the action generally applied the test to their identity is to whether consider the facts essential maintenance, same evidence would sustain both, both. If the same facts or evidence would sustain the two actions are former rest required judgment the same considered within rule that in the If, however, subsequent is a bar action. the two actions facts, upon proofs different or if judgment states of different would be actions, to sustain the no two bar to the one ” maintenance of the other.’ Mango Plymouth Twp, App 715; (1971), v 190 NW2d 409 by Levin, supports principles litigation civil claims, sepa- has two distinct that Gose conclusion litigable. rately

D reason, Gose’s claim is not For still another he is insane was incurably claim that barred. His nor was it hearing, in the first adjudicated the specific It with was withdrawn abandoned. made re- request that no "decision [be] he to abandon that claim gard”. Had Gose wished it from no need withdraw would have had indiffer- he would have been because consideration A employer’s lawyer in the favor. ruling ent to a the claim was was when present for the employer Instead, objected. He then have withdrawn. could any right waived thereby he remained silent and in the future. prejudice to assert by waived judicata may of res be The defense and he protection It is for his will the defendant. contending brought that a residential plaintiffs zoning a action mandamus permit seeking to a con- ordinance was unconstitutional alternative, buildings property. their In the on struct new commercial repair existing permit plaintiffs sought commercial to the a under the ordinance conference, buildings property. pretrial At a on their request permit repairs. plaintiffs for abandoned their for a subsequent constitutionality upheld. suit Plaintiffs’ ordinance’s seeking despite plaintiffs’ by judicata, permit repairs a was held not barred litigate previous opportunity to the effect of total property, "it clear that because the ordinance on their commercial constitutionality necessary the to the the facts and evidence attack plaintiffs’ necessary to are different from those establish ordinance Id., rights p thereunder”. 718. (CA 2, Corp, Metro-Goldwyn F2d In Collins v Pictures 1939) (Clark, J., concurring), a "Test Pilot” claims that movie entitled upon copyright infringed Pilot and consti- the of book entitled Test name, competition by were found to be use of the same tuted unfair severability independent issues”. "the of the distinct and Judge because of differing emphasized factual bases Clark in concurrence support the claims needed the claims and different evidence despite they one movie. related to the release the fact both 11, supra. See cases in fn v Gose Monroe Auto by Levin, not be heard assert it where he has failed to objection proper splitting make to the of a claim.19 principle applies A similar under the General litigation.20 Court Rules in civil employer objection Had the voiced to Gose’s withdrawing might insanity claim, his Gose have merits, submitted the issue for a decision or on gather adjournment secured an proofs. order to more might, He would have been warned that he withdrawing adjudication, the matter from be abandoning altogether. said be it Instead he was made to his no believe there barrier to would

submitting insanity claim at a date later employer any should he so choose. The waived judicata. defense based on res

II injured Louise Sanders her back November 10, 1960. back Her condition her forced to cease working April, During the next three years operations. she underwent several From April, October, 1963 to 1965 she received workers’ voluntarily paid. September, petitioned 1967 she for benefits alleging permanent and total loss of industrial use Pointe shall plaintiff action based Id., See claim subsists as may split against statement 184. 20 "The "(a) § comment Mango Plymouth Twp, supra, See "When 61 does not be withdrawn from the action with the The Woods, parties the defendant: Rogers shall his Judgments, parties v any upon a, p claim, not be to a of the v Colonial apply have it. The possible pending or the defendant has following precluded 2d agreed 607; extinguish (Tentative agreement Federal basis action 275 NW2d 499 in terms or in circumstances from for a may agree fn 18. Savings Draft No. will subsequently second action claim, normally (1979). acquiesced & Loan understanding effect that exists, 5, 1978), some of part that be Ass’n maintaining given therein.” Re- general § 61.2(1), all that effect.” Grosse claim rule an p 147 409 Mich by Levin, hearing Testimony legs. at the showed of both of her a back course Sanders suffered operations employment, result, aas had several hearing in not 1968 could time and at the signifi- or walk minutes for more than five stand experiencing back severe cant distances without pain leg spasms. hearing found "back referee that Sanders’ The disability” "occupational problem” disease was benefits. He further found 500 weeks’ and awarded proof sustain the burden that she "failed to permanent disability as defined establish total appeal. the statute”. She did general disability ran 500-week Sanders’ 6, 1972, she out petitioned 1972. On December November claiming benefits, total and for further permanent disability to the of industrial due loss legs. use of both hearing "totally referee found her

The through permanently the industrial loss disabled legs”. use both the issue of total and The WCAB held litigated permanent disability and, in 1968 was change physical condition, the in Sanders’ absent change relitigated. no It found issue could not be in rejected to 1974. It also her condition from 1968 change change law, like a her claim that a in precludes operation facts, of res of the doctrine reversed. and therefore Appeals order Court of vacated the WCAB’s and remanded for reconsideration.21 App Corp, NW2d Sanders v General Motors (1977). finding Appeals of no The Court of assumed the WCAB’s misapplied correct, condition the but the WCAB nevertheless was held original possible interpretations It saw doctrine. two might was have found that Sanders award. The referee prema- permanency totally a determination of disabled but that through disability persisted further 1972 was ture. The fact that Gose v Monroe Auto by Levin, J. Dissent

A change only Justice Williams states that physical permit reopen- Sanders’ ing condition would question whether she lost the industrial legs use of her and that since WCAB found change reopened. there was no such it cannot agrees The Court that it states with his result. provides The Restatement that where the issue is one of law and a new determination is war- intervening ranted in order to take account of an applicable legal in the context or otherwise inequitable to avoid administration the laws exception general preclusion there resulting to the prior litigation: from "Although an issue actually litigated and deter- mined aby judgment, valid and final and the determi- nation issue in precluded judgment, relitigation is essential to the subsequent parties action between the is not following in the circumstances:

"(b) The issue is one of law and ¤ ^{[*] [*]} * * * (ü) a new determination is warranted order to take account of intervening change an otherwise applicable legal in the context or inequitable avoid administration of the (Tentative 2d, Judgments laws.” Restatement Draft No. 1), 68.1, p 170. § permanency might evidence of have satisfied second referee on the issue. possible interpretation Another explaining of the decision the first award is that the referee found a total but did not find a legs” "loss of industrial statutory use of both as he of that conceived phrase. hearing, At the principle time of first Sanders’ that a back prevents legs qualify use of the could "loss as a legs” accepted fully industrial use of both had not been nor consist- ently applied. in decision, opinion majority If this were the basis of Hlady Co, (1975), v Wolverine Bolt 224 NW2d 856 relitigation legal would bar of the identical claim under a new standard. Appeals The Court of could not actual determine which was the adopted interpretation basis of so decision and most favorable to Sanders. It reversed and remanded to the WCAB. Mich by Levin, indicates Justice Williams the Court nor Neither preclu exception22 general why rule this given operative in effect work not sion should be ers’ cases. Hlady23 a where relies Justice Williams

majority in a dictum that Court concluded change of res eliminate bar in law does not opinion responded concurring judicata. I to In a any Hlady did not reflect considera that dictum.24 exceptions recognize of the authorities which tion preclusion. general not It therefore is rule of to the dismissing, persuasive further without a discussion, basis relied on Sanders’ claim. The cases general only Hlady of res doctrine held that relitigation judicata precludes of issues of law consider or of fact and do not well as issues purport exception may decide whether change justified do of law. Those cases if there a exceptions question whether the not address the preclusion apply general of of issues rule they do to issues fact. law as change "[a]bsent a that Justice Williams writes physical condition, [1968] find these in claimant’s ings (Emphasis supplied.) judicata”. are res Packing Inc,25 Materials, decided after Theodore v change recognized Hlady, a this Court that 22 Vestal, 247, Casad, Judicata, 5-4, p 130; supra, pp Res § (CA 5, 1962), Jemison, 52, 55 it was Christian v claimed that the suit was barred identical suit 303 F2d where judicata of an earlier res because brought by plaintiffs: one of the Supreme many general rule times 'the "The Court has declared judicata first or a where the time of the res no defense between intervening judgment decision second there has been an change creating situation.’ State Farm Mutual the law an altered Duel, 154, 162; 573; L 812 v US 65 S Ct 89 Ed Automobile Ins Co 324 (1937).” Comm’r, 5; 330; (1945); 81 Ed Blair 300 US 57 S Ct L 465 v Co, Hlady supra. fn v Bolt Wolverine 24 id.,p 384. Materials, Inc, Packing 240 NW2d v Theodore (1976). Gose Monroe Auto v by Levin, J. change physical other than circumstances proper reopening condition could be a basis for modifying an award and held the doc- reopening trine did bar where change depen- had there been a in the status physical may dent: "Just as one’s condition passage time, with the vary too so can one’s status day (Emphasis from one the next.” original.) Hlady:

I said in benefits, compensation disability "Workmen’s like so- security benefits, cial unemployment compensation are a form of persons income maintenance for whose wage-earning capacity suspended has been or termi- A nated. claimant’s entitlement to such de- pends on the of application circumstances at the time payment. law, change "A judge-made, in or statutory like a fact, in change change can effect a in circumstances upon justifying, application of employer, worker or an award benefits or or suspension termination of bene- fits previously awarded. right

"The to workmen’s ben depends whether, time, efits given point at a claimant is within statutory scope intendment. The of that tion subject change. intendment A to determina today

that a claimant entitled preclude benefits does not reexamination his entitle law, should by legislative ment ment or the facts or the amend decision, change court tomorrow.”26 Recognizing exception change an for a in law favoring one-way would not abe street workers recently Court, fern,27 alone. This in Red overruled Co, Hlady p supra, v Wolverine Bolt fn 21 Co, Sparks-Withington Red fern v 268 NW2d 28 (1978). by Levin, Sprute28 Appeals which had been test the Court of applied both to in number cases a the WCAB insanity deny incurable for benefits award or imbecility. employer insurance carrier or its An pay required, to continue should not be intervening an establishes that decision an after making applied in rule of law was erroneous physical condition Like a award. status, employer relieve should such decision obligation pay benefits. of the further

B support testimony of the first offered The petition injured that Sanders for indicated injury at work her back turning twisting aggravated work, at was that she had several hearing undergo working in 1963 and to cease operations, at the time and that stand, walk, or sit could not in 1968 she periods long found of time. referee totally although did not disabled she she was legs. prove use of both loss of industrial Paulson Court decided Paulson.29 In 1963 this pain experiencing severe without could not walk held that he This Court in his lower abdomen. legs of industrial use both could recover for loss although proof to the no of direct there was legs.30 injuries squarely were not within

Sanders’ holding perceived WCAB con Paulson.31 The disability to cases where the fined Paulson 28 574; Co, App Sprute Herlihy 189 NW2d 32 Mich v Mid-Continent (1971). 89 29 Co, 312; Heights Muskegon 371 Mich 123 NW2d v Tile Paulson (1963). 715 30Id., p 319. 31 legs: intimately use of his related Paulson’s ** * treating assigned "Testimony physician of the tract, resulting any pain presence from with to the pressure a fistula being leg.” Id. borne either 209 Gose v Monroe Auto by Levin, J. legs per traceable the use se. Lockw ood,32 the WCAB Lockwood, who, had found through hearing loss, industrial related suffered disabling vertigo he walked, whenever moved or disabling was not within Paulson because his symptoms not were traceable to use of the lower per impairment "[were] limbs se but due an the balance mechanism in his inner ear which aggravated by any [was] movement and/or noise”. Appeals The Court of reversed the WCAB in approved by 1970 and that decision was this Court amplified Burke, in 1974 in and consoli the tests in Paulson and dated Lockwood in legs clude as a loss of industrial use of both a case leg legs triggers employ where the use of a or an injury malady part ment-related the prevents or in another body pain that causes or other condition that legs industry.33 Thus,

use of both in Paul- fully son had not evolved to include Sanders’ asserted at 1970; condition least until in law occurred after the initial 1968 determination.

C distinguishable Hlady The instant case is from Also, right leg attempted his became numb when he to walk. pain Sanders suffers in her hack when she sits as well as she when spasms legs stands and walks. The muscle which she suffers in her do pain. her cause Corp, App v Lockwood Continental Motors (1970). NW2d 807 Ontonagon Comm, 103, 114; County v Burke Road (1974). NW2d 797 This Court said: permanent alia, legs "There is and total loss of industrial use both where, inter employment-related legs "1. pain An or or one both causes prevents legs industry. other condition that use of both legs, injured, triggers "2. The use or both of one whether or not employment-related injury malady any part body, or includ- ing legs, pain prevents one both that causes or other condition that legs industry.” use of both 147 409

210 by Levin, J. Dissent majority dic- by governed not be and should of that case. tum fingers and schedule recovered

Hlady lost four ran those benefits When for 100 weeks. to loss for benefits due petitioned further out she general and for of her hand industrial use because she was denied benefits disability. She further over and "any failed to establish of her consequences of loss the natural beyond fingers right hand”. The Workmen’s on the four reversed, finding "that Commission Compensation right use of her lost the industrial plaintiff has This Court amputations”. result of her hand as the because, "[notwithstanding reversed re fingers of her amputation claimed disabil 'general 'sequelae’ in disabling sulted except disability none the commission found ity’, amputations”.34 such normally follows which challenge legal principle not did Hlady could beyond the schedule benefits greater the loss was than only be had where fingers. loss of the normally follows later, 1967, again petitioned 18 years Hlady change physical no in her There was for benefits. condition, 1957 this law —in only Dorpel35 Van allowed Court had decided general disability for loss use such normally follows even where amputations. barred petition

This held Court second Hlady’s judicata: issue, necessarily not deter- may "Plaintiff concede Court, judgment of this minative of and included in the then, successfully the issue after another has raised 34 (1949). Co, 25; Hlady v Wolverine Bolt 325 Mich NW2d (1957). Co, Dorpel v 85 NW2d Van Haven-Busch Gose Monroe v Auto by Levin, again contest, did wish to she relief. ask the Court hap doctrine of res from bars this pening. Mary Hlady easily could this have raised Dorpel. was, fact, as Peter Van issue upon interpretation.”36 It incumbent do if her to so she avail wished to herself of that thing say may It is one that a claimant point frame a factual issue so as to concede a litigate through law, that issue factual the courts contesting law, without lose on the factual necessarily issue which determination included the point attempt law, conceded and then reliti- gate party almost two decades later when another changing quite has succeeded in another the law. It thing peti- to hold that a claimant who advancing legal interpretation for tioned later awarded to later benefits a accepted by petition courts, whose was

upon theory another and chose not who appeal award, that favorable is barred from

petitioning for further benefits when the interpretation previously advanced becomes law. Hlady,

The rationale of a should point not be able to in concede a of law one litigation and later obtain relief when another has successfully challenged change and a in worked place origi- law, has no in this case. Sanders’ petition alleged permanent disability nal total and legs, system. attributable to her back and nervous significant sitting, any She offered evidence that standing disabling walking leg spasms caused her and pain. implicitly, Thus,

back she made the accepted by Appeals claim, later Court leg- Lockwood Burke, Court this disability part related the associated with another body can constitute loss of industrial use of legs though aggra- both even is also 36 Co, Hlady 368, 380; v Wolverine Bolt NW2d 856 Mich (1975). by Levin, walking even than other vated activities per legs

though se. to the not related it is Hlady’s failed she barred because claim claim is to be barred Sanders’ raise because tially ity ter, issue. ini- Had Sanders did raise the issue. she granted petitioned total disabil- and thereaf- for and been general disability due benefits petitioned done, for continued is often of both industrial use on the loss of based benefits required legs, to show been not have she would physical the award of since condition general disability benefits. Hlady not be should announced

The doctrine Sanders’ 500 weeks’ When to this case. extended she re- ran out and for total benefits original petitioned claim based on her legs, her claim use both for loss of industrial legal judged standard have been should operative petition at the time of her second penalized because an not have been she should earlier a different and upon petition failed under same claim legal standard. more restrictive D hearing determined The referee at the first of indus- not establish loss Sanders’ evidence did legs. however, did, find total trial He use both disability. occupational back due to an appeal Sanders did this determination. argued having might issue that, It raised permanent disability, Sanders of total and obliged appeal determination to an unfavorable expect However, it to is unrealistic issue. advancing theory, rejected the ref- worker one theory eree, on a who secures benefits different compen- appeal that of a favorable determination compensation. sable and entitlement provides that an issue resolved The Restatement Gose v Monroe Auto by Levin, previous litigation in a should not be foreclosed in subsequent litigation party sought where "the adequate opportunity be bound did not have an adjudication incentive to obtain a full fair and in proceeding”.37 the first appeal "The lack of incentive to determining is a factor to be considered sought party whether 'full, to be bound had a ’,38 litigate.’ opportunity example given fair An by the Restatement is where "the amount con troversy may in the first action have been so small controversy in relation to. the amount in the preclusion plainly second that would be unfair. * * * proper [C]onfined limits, within discretion to deny preclusive effect to a determination under the circumstances stated is central to the fair preclusion administration of doctrine.”39 denying The first decision Sanders benefits for total and loss of industrial use awarded general disability holding her Thus, benefits. that she had not established entitlement to total permanent disability benefits, the referee de- nied her no current other than dif- payable by ferential Injury the Second Fund. (Tentative Judgments, 1, 1973), 68.1, Restatement 2d Draft No. § j, p Comment 183. 38Casad, supra, 5-58, p 226. § "Although litigated actually an issue is and determined a valid judgment, and final judg- the determination is essential to the ment, relitigation subsequent of the issue in a action between the parties precluded following is not in the circumstances: "(a) against party preclusion not, sought whom could as a law, matter of judgment by appellate have obtained review of the (Tentative court in the Judgments, initial action.” Restatement 2d 1), 68.1(a), p Draft No. § i, "As noted in availability appellate h § Comments review for applica- correction of .the errors has become critical to the preclusion tion of the appellate doctrine. If review is unavailable because party favor, who judgment lost on the issue obtained a in his the

general inapplicable Id., rule of 68 is § its own terms.” Comment (a), p 171. fn See 42. (Tentative Judgments, 1, 1973), 68.1, Restatement 2d Draft No. § j, p Comment 183. 409 by Levin, appealed she have risked had would

If Sanders very least, and, at the would of the award reversal have been further receiving delayed general Appellate litigation costly, benefits.40 time-consuming urgently may Sanders have and uncertain. general weekly ben the needed may not then have had the She efits awarded. carry the battle wherewithal fortitude forward Appeals this of Court.41 to the Court appel subsequent Foreclosing relying from on her ignores did not do so decisions because she late simply prevailed appeal may not have that she Appeals Court of and this both the Court because may they as were to then have the merits not seen ultimately and Burke and seen Lockwood be appeal.42 may leave have denied factor which should be There is still another weighed deciding petition the second it does whether Although appear, should barred. points primary out, Justice Williams hearing of on the seriousness focus at the first was she had suffered incapacity a "total her —whether permanence, referee than its did loss”—rather identify him to conclude that Sanders what led failed to and total loss had industrial use. frequently establish Having practice in mind the making expira- that decision as of (MCL 418.862; 17.237[862]) requiring The an em- statute MSA pending completion ployer pay any of benefits awarded 70% appeal had not then been enacted. (see interpretation given WCAB to Paulson restrictive text) accompanying unlikely a more fns 31 and 32 and made it except Court of favorable decision would have been obtained from the Appeals or this Court. readily Appeals judges of this 42 Ican visualize Court of or Justices declining all the Court to review because the referee had awarded (other currently than differen benefits that tial claimant could obtain benefits) considering preclusionary possible effect after without a analogous expiration to the of the 500 case thus law weeks. This cannot party as matter review an situation where adverse obtain exception judgment by appellate court —another general preclusion recognized by Restatement. See fn rule of Gose v Monroe Auto by Levin, Dissent J. period tion of the 500-week and that the first decision in Sanders’ case on the issue of total and loss of use was made earlier than it is suppose made, often referee and there is no reason to that the recognized might that his decision be final preclusive. As a decision, result of his Sanders would re- general disability precisely ceive as benefits what prevailed larger she would receive had she on the question, except that she would not receive differ- Injury ential benefits from the Second Fund. The may interlocutory referee have seen his decision as may, despite appears, and the what to be the focus of

inquiry, permanence, have had doubts about prediction readily which is a more made after the passage of time. permanency The factual determination of is a prediction likely disability. duration of a One who is found to have lost the industrial use of legs conclusively presumed totally both to be permanently disabled for 800 weeks. It understandable that a referee would make such a finding cautiously. predicting disability, the duration of a lengthy period past disability is a fact to be may persuasive. disability considered be A years presents four a different factual circum- disability years. stance than a of nine The later persisted. assessment is of a which has passage Thus, of time is itself a of circum- justifying stances a redetermination. Unless one say greater certainty appears can with than finding against this record that Sanders referee found that she loss, had not suffered a total she is entitled to reassessment of her claim under permits relitigation the doctrine which cumstances have where cir- changed. judicata expresses policy The doctrine of res partic- which is best served consideration of the by Levin, Having at hand. of the case ular circumstances mind earlier occurred determination —that the first general might expected that because

than then that was awarded all were benefits, at stake was differential possible delay, appeal: disincentives —the money, award, need for the reversal ap- no have been there would likelihood —the denied, peal been would have leave because possibility his the referee viewed —the interlocutory final, decision his to indicate whether referee’s failure —the proofs per- on was because of insufficient decision manency loss, or on total passage permanency of time is if —that change circumstance, itself a intervening decision if an —that on total loss changed legal in which that climate this Court made, be decision should policies this case I would hold that the doctrine of res do not seeks serve require benefits which that Sanders be denied finding testimony at the second the referee’s hearing is entitled receive. indicate she Finality desirable, the nature of workers’ but controlling it is not a is such that Employers, carriers, insurance consideration. their dependents necessarily employees, live and their Except non-finality. possibly in a world of compensation payable of weeks for a fixed number specific loss, or denial for a award reopened may always been a if there has physical condition, other cir- or status compensation is income Workers’ cumstances. maintenance factors periodically,

payable and when justifying giving entitlement rise change. change, result, too, denial should I Sanders. would affirm both Gose and

Case Details

Case Name: Gose v. Monroe Auto Equipment Co.

Court Name: Michigan Supreme Court

Date Published: Jun 27, 1980

Citation: 294 N.W.2d 165

Docket Number: Docket Nos. 60752, 60759, 60826, 60839. (Calendar Nos. 7-10)

Court Abbreviation: Mich.