*1
381; 263 NW2d interpretation (1978), proper governing 418.833(1); MSA rule, MCL and, the two- 17.237(833X1), applied by analogy, 418.381(2); MSA MCL year-back In addi- 17.237(381X2), or overruled? be modified defendant-appellant’s argu- tion, consider we Ap- Compensation the Workers’ regarding ments disability. finding of a work-related Board peal the evidence summarized The Court hearing referee: presented employment with defen- his Plaintiff commenced Blanc on Body plant Grand its Fisher dant at April October, 1956, and, began to 23, 1953, he his duties Plaintiff described a die setter. work as *3 being extremely strenuous. as a die setter with six-foot bars. prying heavy dies job included 1960’s, plaintiff was during early the Sometime place when he moving a die into pulling a bar and He went to the snap pull in his back. and felt a station, given heat treat- he was where first aid ments, time from work he did not miss injury. because of following injury he that Plaintiff claimed pain pain have in his back. continued that, 1963, forced to he was so intense
became recuperated for six months surgery. Plaintiff have on returning job as a die setter to his before successful surgery 1963. The was October require plaintiff additional the extent did Plaintiff, injury. from time off however, work because pain continued. claimed that the cross-examination, plaintiff explained During his paid some of health insurer had that his surgical paid balance. that he had bills and letter written into evidence a The defense entered insurer which stated plaintiff to his health Howard v General Motors Bkickley, his back trouble was not ment. employ- related to his writing signature Plaintiff identified the own, as his but stated that he did not remember writing the letter. March, 1967, In plaintiff requested a transfer position operator of crane because he believed job injurious working
that as a would be less than request granted. die setter. This was Plaintiff get stated that in order to into the crane he had to forty-foot climb a ladder. He estimated that he up climbed day and down the ladder to 15 times a pulling climbing and that involved put Moreover, ladder a strain on his back. order get signals to plaintiff ground, from the workers on the up had to stand and lean over the cab placed additional stress on his back. Willis, supervised Roland plaintiff who at Body plant, Fisher mony plaintiff’s contradicted testi- operation as to the of the cranes. Willis plaintiff stated that operate would only one or two day, necessitating cranes a of only a limited amount climbing. addition, the crane could be turned 180 degrees, enabling operator to see down from the side of the leaning cab without out over the front of the machine. Willis further testified only in the cabs about four hours day only and that the reason for him up to stand legs was to stretch they got his if tired. 5, 1966, On plaintiff again December injured himself slipped when he icy pavement in the plant’s parking lot. Plaintiff fell on his tailbone experienced and right shooting pains hip in his leg. Plaintiff plant’s went first aid station and informed them of slippery condi- tions in parking Although plaintiff lot. claimed that he continued pain to have right leg his accident, because of the he admitted on cross-ex- right amination that leg his previously had been *4 injured during World War II. At the time of the hearing, plaintiff receiving was from government the Following injuries for right leg. to his slip fall, arranged gmc plaintiff to see Dr. resulting pain. Harris about the Mich 358 9, on plant’s records reveal that December im- 1966, reported was "much plaintiff that he appointment be requested that proved” he hearing, plaintiff that At the denied cancelled. had ever made request. such a any further medical did not receive Plaintiff a he July, until when suffered treatment During plaintiff’s 90-day conva- ruptured appendix. following experienced he an surgery, ex- lescence leg. pain in his back and acerbation addition, began feeling brief transient plaintiff Notwithstanding physical his pains infirmities, his chest. crane plaintiff to work as a returned a job for about operator. month, remained on the He pain forced to leave because but was Herzog, the leg. to Dr. Plaintiff back his went operated plaintiff’s on originally physician who x-rays back, Herzog Dr. took for an examination. myelogram, ultimately determin- a and conducted ing his this to allow him Plaintiff heart disease also to work. surgery on required additional plaintiff that that, after testified even lower Plaintiff back. intense pain in his back was too surgery, operator. a crane to continue as admitted, however, intervening that his returning from prevented him day work at General Following plaintiffs last 13, 1973, plaintiff was examined July concluded physicians. Dr. VanBrocklin several provided plaintiff he was that could return work did not placed job. VanBrocklin a "sit-down” possible to continue believe that was climbing operator ladder a crane because as might plaintiffs affect heart condition. VanBrock- pain in might noted that also be some lin there during climbing. plaintiffs back Irving Young’s Dr. examination revealed limitation of be- plaintiff suffered no movement narrowing pain. x-rays cause of back showed might space spurring anterior disc nature precipitated by have been strenuous Young found early 1960’s. plaintiffs work plaintiffs injury further back no evidence aggravated by employment. his *5 363 Howard v General Motors 1986] Brickley, J. by Opinion plaintiff Dr. Leon Friedman determined participate significant physical could not activ- ity because of his advanced cardiovascular disease. believed, however, plaintiff Friedman could perform satisfactorily sedentary a semi-sed- entary job. Although Dr. Friedman’s examination ailment, plaintiffs on focused noted that pain. heart the doctor plaintiff complain continued to of back Although plaintiff originally claimed that his back, employment aggravation ap- caused to his heart, pendix, lungs, he deleted all claims except relating disability those to his back. The aggra- accordingly solely award was based on the vation of back condition. v General his [Howard 639, 641-644; Corp, App 348 (1984).] NW2d hearing the Bu- plaintiffs petition 24, June Compensation
reau of Workers’ was filed 1979, 21, hearing August 1977. After a 1979, 27, August referee issued his decision on awarding plaintiff compensation aggravation day employ- his back condition as of his last ment, 13, 1973. July referee
determined that aggravation was due disabled causally condition back related employment. proved his Plaintiff was credible and disability by preponderance his of the evidence. appealed Compensa- Defendant to the Workers’ 8, Appeal tion Board on Except October 1979. for a modification of the rate and interest award, the board affirmed the award. plaintiff’s The board concluded 1973 work-aggravated that a supported the evidence. disability addition, as to defendant’s assertion 418.381(2); rule of MCL MSA 17.237(381X2), the board held that 427 Mich [b]y its failure invoke 381(2) court, has the trial defendant Section before defense, non-jurisdictional
waived that affirmative It cannot thus akin raise that issue for the a statute of limitations. first time before Co, App 116 Mich Kingery v Ford Motor board. 606, (1982), see also Klein- 613-615 NW2d [323 Corp, schrodt v General Motors (1978); Mich Hospital, 100 v Detroit General Bordas *6 (1980). 31, 33 App NW2d [298 655] Appeals appealed to the Court of Defendant Howard, and that Court affirmed. granted, leave supra. sufficiency
The first defendant’s panel addressed The of the evidence claim. Court reviewed it expert and found "sufficient sustain testimony Id., 645. of fact.” As findings wcab’s argument plaintiffs that defendant’s was employ- heart that his continued prevented disease ment, the Court held that intervening independent, resulting in a an event disabling problem new does alone medical continuing
justify the denial of benefits
work-
injury.
Corp,
Casco
related
Mich
Powell v
Nelmor
(1979).
332, 354-355;
Regarding application supra, the Court rule of applied Kingery, Kleinschrodt, supra, upheld the wcab’s deci- sion. The Court reasoned required
the
for the first time
case,
is not
issues raised
consider
wcab
of this
it. On the facts
before
compelling
where the record is devoid of
Howard v General Motors
explanation for defendant’s
failure to raise the
applicability of
rule before the
hearing officer, we find no abuse of the wcab’s
supra,
[Howard,
p 647.]
discretion.
appeal
Defendant
for leave to
in this
except
Court,
9,
and it was
1984,
denied November
that the
case
remanded to the Workers’ Com-
(419
pensation Appeal
[1984])
Board
Mich 948
any recomputation
part
of the interest
light
award in
of Selk v Detroit Plastic Products
(On Resubmission),
32;
The also maintains that "the record support finding personal occupa- does not injury plaintiff’s day tional It as of the last worked.” argues "[t]he that evidence the record fails to plaintiff continuing establish that has a work- orthopedic disability” related and left appendectomy work 1973 because of an and problems, cardiac not because of his back.
Our review of this issue is limited both constitu-
This Court has noted on occasions if are conclusive "[findings by of fact [board] v presented.” Hlady supported the evidence Co, 374; 224 Wolverine Bolt NW2d (1975). case, of a work-related finding In this the board’s A re- brief supported by the record. disability our conclusion. supports view of evidence deposition Irving Young of Dr. states definitely in the 1960s "was plaintiffs back trouble lifting straining aggravated heavy his He further commented: work.” pain my judgment, episode initial of back his aggravated perhaps precipitated had strenuous nature of the work that he doing been years. for some
Degenerative disc disease and herniated disc is aggravated by physical la- characteristically [sic] puts spine. I bor that stress on the lower therefore work, he feel that this man’s described being period employ- heavy initial his ment, aggravating in the must have an factor been *8 development of his disorder. Howard v General deposition Dr. VanBrocklin contra- The James Young. opined: that of Dr. He dicted patient appears to be disabled from his operator history on the basis of a work as a crane rather than on the basis coronary artery disease of of disc laminectomy. disease and lumbar physician, did not Dr. Leon Friedman The third problem, plaintiffs focused back but evaluate only on his heart disease. plaintiffs
Thus, the work-relatedness of as to dispute disorder, reduced to a battle back experts, Dr. chose to believe and the board Young. applicable does not standard of review permit quibble with that assessment this Court to resulting findings of and the fact. compensable found a work-related
The board Young’s deposition disability of Dr. on the basis plaintiffs testimony. It refused to dis- own plaintiffs testimony merely because he had count no in 1963 in an effort to claimed work-relatedness obtain medical insurance benefits. might express
While we reservations about the reviewing board’s conclusions were we this case de applicable novo, review, under the standard of we question credibility will not the board’s assess- ment.
Regarding plaintiffs intervening disease, heart Appeals we find that the board and the Court of properly applied the rule of Powell v Casco Nel- Corp, supra, pp ap- Powell, mor 354-355. In we proved of the Court of statement event, independent, intervening which follows
[a]n
personal
injury arising
out of and
the course
denial,
employment,
justify
of
suspension,
does not alone
reduction,
disability
or increase of
ben-
continuing
injury.
efits for a
work-related
*9
Thus, finding of work-related given record, and given supported by is disability problems subsequent health the plaintiff’s benefits, on his entitlement legal have no effect board, we of the findings we are bound Court judgment affirm the would turn to the more substantive this issue. We now on the two-year-back regarding application issue rule.
ii provides: The rule (3)[1] any if Except provided in subsection act, payment sought compensation is under period of time earlier made shall than preceding the date years immediately 2 application for a employee an filed which 418.381(2); MSA the bureau. with [MCL 17.237(381)(2).] to pro- rule "is purpose stale prevent notice to the employer vide Corp, 118 . .” Fuchs v General . . claims (1982), citing 547, 554; 489 App 325 NW2d Mich Co, Gas Michigan v Consolidated White (1958) the one- 201, 212; (referring 89 NW2d rule). year-back rule after analogous one-year-back applies stopped, injured employee have
payments It provides: filed for additional benefits. has made, than payment If other (3) provides: Subsection nursing Payment made for care shall not be attendant year any period application an is more hearing the date than before with the [MCL for a is filed bureau. 418.381(3); 17.237(381)(3).] MSA Howard v General Motors expenses, medical compensation application and an for further bureau, is later filed with the no compensation shall be any period ordered for which is filing year prior more than 1 to the date of application. of such 418.833(1); MSA [MCL 17.237(833)(l).[2] Plaintiff petition Howard’s for a hearing was filed June 1977. Had the two-year-back applied, been the award period would have com- 24, 1975, menced on June rather than as of his *10 last day 13, of employment, 1973. July The defen- dant failed to level, raise the issue at hearing and the rule was not applied. The board refused to the rule of Kleinschrodt. it under apply Thus, general question posed by this case in regard to proper construction of the one- and statutes is whether can they be procedurally waived a failure to raise them at some point the proceedings. Legislature might have explicitly provided, not, but did for a "failure to raise” waiver rule in the statute.3 Therefore, our choice is interpret the statutes being either "akin limitation,” to statutes of following the Klein- waived, and thus raised, if not schrodt reasoning, or as limitations on the author- ity of the board and not waivable._ 2 provides The same statute overpayment also if that there is an of benefits, recoupment money period "no shall be allowed for a year prior is taking more than 1 to the date of such action.” MCL 17.237(833X2). 418.833(2); MSA example, For statutory Florida has a waiver rule: Notwithstanding provisions (1), of subsection the failure period prescribed
to file a claim within the in that subsection right objection shall not be a bar to such unless to such failure hearing parties is made at the first of such claim in which all given opportunity interest are reasonable notice and an to be Ann, 440.19(2).] heard. Stat [Fla § period claims, filing This statute refers to the time not to a two- or one-year-back rule. Mich continuing viability Regarding the Klein- argues appellant that first case schrodt appellant Alternatively, should be overruled. maintains guished may the instant case be distin- Kleinschrodt, rule in that the waiver from raise the failure to case its level, at referee issue "back” than the board. rather before holding recently, Klein- indicated As we expressly limited the circum- "was schrodt Copper Pine Franks v White stances of that case.” (1985). Div, 674; 375 NW2d easily Accordingly, Franks, case, like question pre- important distinguished.4 The more reasoning of sented, however, whether (by appli- at all direct Kleinschrodt remains viable by analogy) in where defendants cases cation particu- expressly limited their have not question Providing to that lar an answer issues. the Klein- of the basis for involves reconsideration that have built and of cases schrodt decision upon foundation. the Kleinschrodt
A *11 to have case that be said earliest presented Lynch general question addressed the Briggs Mfg Co, 168; v 329 Mich 45 NW2d (1950). parts case, In we vacated certain plaintiffs one-year- the award on the of the basis back rule. finding
Lynch primarily the dealt with whether plaintiffs disability supported by of the total 4 Kleinschrodt, one-year-back appeal raised In board had the sponte. not it Defendants in Kleinschrodt did raise before sua Moreover, defendants did the in the instant case. board as defendant issue, disability explicitly limited their appeal. did so limit whereas defendant its Howard v General Motors Opinion by Brickley, was, evidence. It found that but that "the period compensation for which could be retroactively awarded . . . could not extend be- yond year prior upon . . . the date plaintiff’s present petition plaintiff was filed.” The separate applications compensa- had filed three Lynch tion. stated that power compensa- [t]he of the commissionto award expressly [one-year-back
tion is limited rule]. [Id., 173.] In Bauman, Loucks v 514; 97 NW2d (1959), question "waivability” 321 one-year-back specifically
rule was addressed. At justices least three in that case found the rule to authority, be a limitation on the board’s and not waivable. plaintiff Loucks,
In had been awarded com- pensation specific leg in 1948 for a loss of his left injury. plaintiff a 1947 filed for an adjustment claim, of his and the referee "open finding plain- made an award, end” that the disability tiff had a further but that he was not compensation entitled to no because he had suffered disability-induced wage subsequent loss to 1953 (one back). year appealed The defendants the find- ing disability, modifying affirmed, the board grant the award on its own motion to disability including periods benefits, total time prior to 1953. The defendants claimed one-year-back rule should be to disallow any period prior to 1953. split. opinion by The Loucks Court was An Chief Justice in which Justices Carr Dethmers, Kelly joined, held that the rule was applicable. justices issue,
On the waiver these three stated: *12 427 question the statute in does provision of actions, fixing a time limit impose a limitation brought, may be within which actions to assert failure be deemed waived defendant’s defense, it but, contrary, places a on the appeal board which power on the limitation [Id., 517-518. Em- parties. pp waived cannot be phasis added.] to issue failure raise the before
Defendant’s ground on the that justified board one-year-back referee had that, therefore defendant, appeal no
there was occasion for from compensation appeal board the workmen’s ..., urge finding disability referee’s time of the statute to bar [Id., antedating period. p 1-year 517.] However, grant that opinion that also noted limited appeal expressly had been leave of the rule. It observed applicability point . . defen- [p]laintiff . has not raised the argue statutory bar dant failed raise or appeal properly It is before us on before the board. [Id., appeal. 518.] in the separately Justice Edwards concurred compensation. agreed He partial denial applicable rule was and that waiver, it. Regarding referee had properly applied noted, he did, have apparently, board the issue Howard v General Motors *13 Opinion J. it,
before year since its makes order reference to the 1- applied by limitation date the referee. What- ever reason appeal the be for the board’s omission, view, my language in the of the amend- and, indicated, ment is clear as the referee it bars recovery presented in the fact any situation as to compensation prior [Id., p to November 1953. 531. Emphasis added.] remaining opinion
The Black, by Justice concurred, which Justices and Voelker Smith maintained the should Court not review question presented Id., first to p not the board. 524. Justice believed that the Court should Black "insist on the benefit of the board’s view before it on interpret undertakes certiorari and apply” Id., the p workers’ law. 527.
The of the sign view three who did not justices the opinions applying one-year-back the rule in Loucks stemmed from a concern that the Court should not address question the unless the board first an opinion id., issued it. 527. See Had the opinion Loucks, board issued an explaining its failure to apply one-year-back rule and using a waiver analysis, had it alternatively, affirmed the hearing application referee’s of the Justice and those who joined Black opin- his ion, would have presumably deferred board’s expertise.
Thus, it cannot be justices said the three who did not apply the one-year-back advocated, advocate, Loucks or were even likely to waiver by failure to remaining raise the issue. four justices interpreted the "back” rule as a limitation of authority. Co,
Kushay 69; v Sexton Dairy time5 next we (1975), represents NW2d issue, of inter- by way mentioned specifically majority Loucks. portion The final preting presented issues Kushay addressed opinion referee, board, Court of or the claim defendant’s of these was Appeals. One had rule. The defendant under could not one-year-back provision argued that Loucks. was held waived, defendant citing have preserve issues13 and that properly to these failed therefore, is, no need to address merits there *14 of those issues._ 5 Co, supra, support Hlady Bolt as for his v Wolverine Plaintiff cites one-year-back Hlady rule position. that refers to the it is true While id., 381, limitations,” the case does not of a "built-in statute as address waiver the fact, stemming it. In from failure raise of the rule sponte application opinion appears of the rule to endorse sua one-year- Appeals. discussed the of This Court the board or the Court Hlady rule as follows:
back in case, judicata apply did not in this Even if the doctrine of res Compensation prevents this Court Act itself our Workmen’s awarding plaintiff. forth benefits to the As set from further decision, one-year-back previously rule this act contains a in provision. provision prevents this the courts or effect payment Appeal awarding of beneñts for Board from Sling period prior year one of time back from hearing. plaintiff 16,
petition
filed her
In the instant case
petition
year-back
Department
on November
1967. The one-
with
prevent
applicable,
if
from
would
Court
covering
prior
awarding
any period
time
to Novem-
benefits
16,
at
1966. Yet the act itself mandates that
an absolute
ber
maximum,
may
any period
Mary Hlady
compensated for
not be
extending
18,
beyond
of time
500 weeks from October
1945.
any period
plaintiff
Thus
beyond
no benefits
be awarded
[Id., pp
year
Emphasis
1955.
380-381.
added.]
emphasized language supports interpreting
The
grant
authority
rule as a limit on the
act.
of the workers’
Hlady to
While the reference to the "statute of limitations” in
view,
supports
pro-Kleinschrodt
a
the fact
we
we
some extent
language
applied
used
waiver because of
Hlady,
with the
the "back” rule
combined
require
finding
applicable support
it
a
that would not
rule
failure to raise the rule.
Howard v
General
Dairy
justices
Sexton
relies on the statement of three
Bauman,
514, 517-518;
(1959),
Loucks v
356 Mich
We do not find the of Loucks that helpful Kushay is offered in footnote on this Again, justices issue.6 three of the in Loucks ex- plicitly advanced the view that "back” authority. awas limitation of Justice Edwards noting separately concurred the board "had it” issue before and that the rule "bars recov- ery.” remaining justices expressed opinion no question regarding waiver, on the substantive but willingness go instead, seemed to indicate their along with whatever the board decided. per opinion majority
Our
curiam
in Klein-
supra, p
Motors,
schrodt
v General
did not
Chrysler Corp,
discuss Loucks or Baldwin v
App
(1976),
61;
The issue before use of the industrial had lost whether held that he had The referee hand 1962. his of benefits. awarded weeks appeal in Klein- board, the defendant On arguments explicitly its confined schrodt point, disability on that affirmed board issue. one-year- of the on the basis denied benefits but sponte. The Court it invoked sua back (after ultimately Appeals from remand affirmed granted), as on leave Court consideration holding rule constitutes that "the appeal authority board limit waived.” and cannot be award (a paraphrase supra, p Kleinschrodt, opinion). unpublished Court of citing Kushay reversed, 13 of footnote We explicitly emphasizing lim- had that the defendant its to the board one issue. ited brief circumstances, hold that defen-
Under these we one-year-back rule dant the defense of the waived failing [Id., board. to raise before 384.] one- considered the The Kleinschrodt dissent provision year-back "a limitation on Appeal Compensation Board’s Worker’s Quoting opinions authority . . . .” Id. from the and Edwards Loucks Justices Dethmers Baldwin, from the dissent observed: *16 Howard 377 v General Opinion Brickley, J. Kleinschrodt, today In the Court has overruled Loucks Baldwin on the basis of a alto- ., Kushay . . gether accurate footnote a foot- appended note which was to the statement Kushay] properly pre- defendant “failed [the serve” certain issues "and that is, therefore,
there no need to address the merits of those issues.” The opinion hangs Court’s on this slender thread. It legal justify policy does not its conclusion on grounds. unconvincing I uphold find it and would Loucks and Baldwin. reasoned conclusions [Id., pp 385-386.]
Subsequent
Appeals
cases
the Court of
have
the Kleinschrodt
expanded
rule and have
Co,
Pipe
v Leese Tool & Die
scope.
its
Mich
90
(1979),
741; 282
App
NW2d
rev’d on other
510;
(1981),
grounds
Defendants’ failure to raise this defense consti- tutes a protections waiver of the statute’s precludes sponte. [Id., it sua raising the wcab from p 744.]
In Bordas v Detroit General Hospital, 31, 33;
App
(1980),
tolled when suit so is rule. Mich discussing panel Kleinschrodt, distin-
Without guished Lynch.7 *17 expand- disapproved minority of this Court
A Sulphite ing v Detroit Piwowarski Paper Pulp Co, 716; 316 NW2d & (1982), one-year-back rule. construed the which opinion per Although majority the curiam request that a bene- limited to the issue "whether permanent disability paid is a total fits request for and compensation,’ the where ben- for 'further paid specific-loss previously benefits[,]” were efits the dissent question of addressed the waiver. plaintiffs had Piwowarski, decedent been specific injured loss in 1948 and was awarded permanent petition for total and benefits. His 1970 disability the referee on was denied benefits grounds. appeal, the board did not factual On issue, but instead decide one-year-back factual deny The Court of rule to benefits. remanded on the basis reversed and remand, a found total On board Kleinschrodt. permanent disability and awarded benefits. majority unnecessary it This Court’s found as- [defendant’s] failure to address "whether one-year-back its defense at first sert rule opportunity permanent a waiver of constitutes authority cited for its that the two- The Bordas Court no assertion Yet, year-back rule "is similar to the statute of limitations.” went way distinguish supra, p Lynch, had that out of its the which held power "expressly rule "the of the commis limited” compensation.” sion to award (1) distinguished grounds Lynch was it involved the one- receiving year-back acknowledges already (2) petition, petitions Lynch benefits from an earlier did Bordas; "continuing petition in not involve a the the second claim” did petitions Lynch two first were dismissed. Lynch While the factual differences between and Bordas are valid provide good allowing "tolling” reasons in one case and not other, they provide any do not for the fundamental differ- basis essentially analogous statutory ence in characterization provisions. two 1986] Howard v General Motors Opinion by Brickley, appli- Id. defense.” The dissent found the rule cable, and therefore addresssed the waiver issue. interpreted application The dissent of the Klein- unjustified schrodt in rule, Piwowarski as an exten- sion of that and would have at least limited application the rule’s to a failure to raise the issue board, before the not the Id., referee. 727 and n 5. Despite preference the Piwowarski dissent’s
limiting experienced Kleinschrodt, the rule a ma- jor Kingery supra. extension in Co, v Ford Motor Kingery, plaintiff In occupational was awarded benefits for
lung part by disease caused in his employment by employers. ap- two defendant On peal, adjusted apportionment the board liability employers between the two and held that *18 two-year-back the tronic rule by advanced Ford and Wel- "being a nonjurisdictional affirmative de- fense, was not prior raised appeal” to and was [Id., p
waived.
612.]
Affirming
apply
the board’s refusal to
the two-
year-back
Appeals agreed
rule, the Court of
"that
the rule is akin to a statute of limitations and was
p
Kingery panel
Id.,
waived.”
613. cited Klein
dispositive
schrodt as
of the issue. It noted:
Although Kleinschrodt
distinguished
can be
present
from the
case because the wcab
raised sua
sponte the issue while here Ford raised the issue
in its delayed application
review,
we find that
the Kleinschrodt
applicable.
case is
totally
A
new
issue, not
decided
judge,
administrative
law
is akin to a statute of limitations and cannot be
raised
by request
either
sponte.
or sua
We con-
sider, by analogy,
that while this Court reviews
novo,
cases in equity de
we will not review an
issue first
appeal. Therefore,
raised on
we find that
because
operates
as a stat-
Appeals holding that defendant .... two-year-back rule 674.] [422 "to circumstances We limited case,” id., noting wcab, in Klein- defendant [the only failed to raise what have schrodt] complete been the defense specifically the issue be consid- limited question disability. ered the board [Id.] of Franks similar to those of facts were Piwowarski, Loucks. in Loucks As according referee had awarded benefits *19 rule. re- applicable "back” did not quest of the The defendant appealed review award. on other then the grounds, board board sponte, making modified the referee’s sua order Using the commencement date six earlier. years reasoning similar to that the dissent employed Piwowarski, disagreed in the in- we with board’s Howard v General Beickley, terpretation another We saved for of Kleinschrodt presented day in case.8 the instant the issue Concurring majority Franks, in Justice with the Riley have overruled Kleinschrodt would might applied, one-year-back applies in both Emphasizing two-year-back the rule and language cases. provision, two-year-back and con- of the struing similarly, Justice the language opined Riley of the statutes legislative limit the author- intent to "indicates a hearing ity awarding [board] referee and payment Id., 686. benefits.” Riley the Court Thus, would have had Justice adopt Kleinschrodt, dissent Justice Coleman’s case, could not circumstances of this defendant Under the appealed ruling two-year-back wcab, on the rule to the
have
because the decision
to its
referee was favorable
anticipate
position
to
a need
that rule. There was no reason
argue
prior
the determination that Mr. Franks
that issue
Although
majority
benefits.
was entitled
Kleinschrodt viewed this defense as
additional
nonjurisdictional,
there is
requiring
authority
in the first
it to be raised
a void
no
2.116(D)(1)
Compare
responsive pleading or be waived.
MCR
2.116(D)(2).
Sulphite Pulp &
See Piwowarski v Detroit
(1982) (Coleman,
Co,
716, 727;
Paper
412 Mich
316 NW2d
C.J., dissenting).
agree
of Justice
We
with the admonition
costly
it would be "a
mistake to extend
Coleman
holding
beyond
presented in that
in Kleinschrodt
the facts
(The majority
issue in its resolution of
case.”
did
reach this
case.)27
The Court of
has
the rationale of
rule, holding
majority
that it
waivable, not
is "akin to a statute of limitations” and is
Co,
App
jurisdictional. Kingery v Ford Motor
116 Mich
(1982);
615;
Corp, 132
before B purposes Preliminarily, that, for find we would applicability analyzing a Kleinschrodt- of of type two-year-back rules rule, the one- waiver language operative indistinguishable. of are the the case of issue made meaning. essentially conveys the same rules specifically two-year-back at rule "payment bar, shall not be in the case at any period than of time earlier applies, years . .” . . When period compensation be ordered for shall "no prior year . . . .” Both is more than which hearing proscriptions to the address their statutes referee or ordering "payment” prohibit they
board; periods earlier than to a time not refer The rules do indicated. seeking persons must file their benefits oppor- petitions. Accordingly, decline the we would solely finding tunity no to make a of waiver one-year- addressed the that Kleinschrodt basis involves the. rule, the instant case back whereas two-year-back rule. reject analysis
Likewise, that would would an we application raise the rule to a failure to limit the issue before the
board, rather than the argue bar, In the case at the defendant did referee. the fore there- rule before the board and might sufficiently preserved be held to have the issue. foregoing mind,
Rather, we with the cases prefer foundation, or lack to reexamine rule, thereof, assess its for the Kleinschrodt and to involving continuing viability in either cases at either level of administra- "back” tive consideration. Howard v General Brickley, J. were statutes rules
If the one- and them, analogous or highly limitations in would be rule set down waiver suit, a statute In a civil appropriate. logical in the party’s raised must be limitations defense *21 or it is waived. first motion However, the one- neither of the themselves, provision other rules, nor contains Act Compensation Disability Workers’ provide the court rules language similar in a civil action.9 for such waiver reconsideration, find that we would Upon of the one- interpretation of limitations” "statute in Kleinschrodt rule offered year-back Kingery and Howard subject on precedent contradicts our earlier of the statutes. plain language well as the Lynch did not overrule Loucks. Thus, latter case that the statement limitation on the "place[] rules a the "back” 2.111(F)(2), part: provides in See MCR which party against of action has been asserted A whom a cause cross-claim, third-party complaint, assert against claim must counterclaim or party responsive pleading the defenses the has a responsive A in the the claim. defense not asserted waived, pleading provided by or motion as these rules except jurisdiction subject for the defenses of lack of over action, on matter of the relief can be and failure to state a claim granted. 2.116(C), party move See also MCR for dismissal of or grounds upon which allows a to a civil action to claim, summary judgment specifying on a certain may which such a motion be made. The defenses of lack jurisdiction, process, process insufficient and insufficient service of party’s must be raised in a the first motion under this rule or in first, responsive pleading, they party’s whichever is filed or 2.116(D)(1).] are waived. [MCR 2.116(C)(7), limitations, grounds, including the statute of MCR Other must be raised responsive pleading. party’s no later than a MCR 2.116(D)(2). 427 Mich power cannot board which be of the good where de- law all cases waived” remains explicitly limited the issues to be fendant has not appeal, of the to the exclusion considered interpretation provisions rule. This "back” Compensa- keeping prior Workers’ is also in with Appeal tion Board statements.10 plain language the "back” rules also interpreting against them as statutes militates limitations. "represents legislative
A statute of limitations period of time of that reasonable determination given in an claimant will be which to file that a action.” Lothian v Detroit, 160, 165; (1982). NW2d 9 limiting A limitations is an act statute of brought. be
time within which an action shall However, prescribing a limit of every statute performed an time within which act *22 necessarily a statute of limitations action taken is CJS, Limita- ordinarily as that term is used. [53 1, Actions, p tions of § 900.]_ 10 1975, opined empowered apply In the board that was two-year-back it before the sponte, rule sua where a defendant had failed to raise Chrysler Corp, referee or the board. Smith v However, apply 1975 WCABO 300. it did not the rule in that case final; because the award had become the board found that it had award, making longstanding prohibition erred in against reviewing but noted the its own decisions. Defendant Smith had cited Div, 2580, Townsend v Pontiac Motors 1972 WCABO in which the benefits, board had cited the rule and without it to the award of explanation. Moreover, 360, Corp, in Wheeler v General Motors 1980 WCABO decision, post-Kleinschrodt the board seemed to adhere to its earlier It view. stated: authority, limitation ema- back rules constitute on our Act, nating from nowhere but to award benefits. When attention,
brought applied. they appropriately to our must be [Citing [Id., an Kleinschrodt and earlier decision board.] p 363.] Howard v General connection, "limitation,” has in this The term the end of which being the time at been defined as equity can be main- or no action at law suit Actions, 2, 2d, p Am Jur Limitation of § tained. [51 592.] way: another
Expressed yet to a fixed inter- statutory limitation reduces [A] right the accrual of the val the time between the commencement short, a true of the action. period prescribes a time statute of limitations brought upon an action must be within which [Id., rights to be enforced. claims or § 599.] Thus, definitions of very on these basic relying limitations, the one- and statutes categorized. Simply not be so may rule statutes stated, period limit are not statutes they file an action. of time which a claimant Rather, period time for which they concern the once a deteroiina- compensation may be awarded rights tion of thereto has been made.11_ keeping wording typical limitations is in with statutes of example, For the statute of limitations for these basic definitions. part: of contract actions reads in breach person may bring any No or maintain action to recover contract, damages or sums due for breach of or to enforce the specific performance contract unless ... he commences periods prescribed by within the action of time section. 600.5807;MSA [MCL 27A.5807.] Likewise, damages person may] bring or maintain an action to recover "[no injuries persons property unless . . . com- [he periods prescribed the action . . . within the of time . . . .” mences] MCL 600.5805; MSA 27A.5805. perusal A of the limitations of actions section of Revised that, above-quoted examples, Judicature Act reveals like the most require statutes of limitations "be commenced” within actions *23 periods. Generally, period certain time the time the claim accrues.” MCL contrast, "the of limitations runs from 600.5827; By MSA 27A.5827. point of reference is for the one- and rules filing application. play only the date of the of the The rules come into if is awarded. two-year-back rules do
Moreover, the one- and purposes typical do statutes serve the same not of limitations. are by statute periods created Limitations policy considera- worthy
grounded in a number recovery of encourage prompt They tions. damages have .; penalize plaintiffs who they .. pursuing their industrious not claims demands vorable to a been against stale .; security they . . "afford unfa- would be when the circumstances .; . . and decision” just examination prolonged fear of of the they relieve defendants claims .; prevent fraudulent litigation they . . .; they . being . from asserted " result- general inconvenience . . . the 'remedy legal right of a ing delay in the assertion from ” [Lothian, supra, practical to assert.’ pp 166-167. Citations omitted.] purpose rules of the one- and prevent employer provide and to is to notice Although supra. supra; White, claims, Fuchs, stale penalizing claimants rules do have the effect the who have pursued timely claims, their not unexpected liability employer’s they limit an while for the fear of employers compensation, they do not relieve prevent litigation, they nor do fraud delay. remedy The rules do the inconvenience traditionally perform associated the functions not they limitations because do with statutes of merely operate remedy claim, limit to cut off a but They the action do not disallow obtainable. petition long recovery may after be filed or the an —a response injury awarded and benefits merely they limit the award once it has thereto — granted. been language Therefore, of the basis perceive logical rules, izing reason for character- we no two-year-back rules as statutes the one- and *24 1986] Howard General v J. Opinion reject any lan- therefore would We of limitations. implied guage have in Kleinschrodt employed was so in that case rule the waiver premised. legisla- described are better rules
The "back” possessed scope authority the of on tive limitations compensation granting body benefits. workers’ a system is a creature workers’ seq.; generally, 418.101 et MCL statute, see, of MSA 17.237(101) authority seq. to make et by statute, "back” limited is also awards the represent the of limitation one kind rules Legislature power the to constrain has chosen law, grant matter of substantive As a benefits. bene- the board awards referee or when they rules, one of the "back” of fits in violation may permissible to have exceeded be said authority. statutory scope their of neglects Procedurally, to raise if a defendant appeal, rules application where the rules on of specifi- applied below, and in been have not fact appeal issues, cally limits as was other an may be Kleinschrodt, the defendant then case right the "back” to raise his to have waived held a defen- is Such waiver based rule defenses. dant’s upon implicit acceptance below, the result plaintiff may relied. The have further. no should be extended of Kleinschrodt Franks, indicated As we unique facts must limited waiver rule important being the defendant’s case, the most grounds explicit from of the articulation board, of the to the exclusion decision of the interpretation Any rule defense. "back” rejected. limitations is statutes of "back” rules as precedent contrary analysis and contra- Such dicts tion. ques- provisions plain language 427 Boyle, J. in part and reverse part affirm We would re- Appeals. We would of the Court decision Compensation Ap- the case to the Workers’ mand accord- of the award recomputation Board for peal rule, MCL the dictates of the ing to 17.237(381X2). 418.381(2); MSA Riley, J., concurred with *25 dissenting (concurring part J. Boyle, part). hearing before the petition for plaintiffs does Compensation Disability Bureau of Workers’ period prior years for a to two not claim benefits It filing petition. merely of the preceding the as he sought that Mr. Howard "such relief states Com- Disability is to under the Workers’ entitled notice Michigan.” There is no pensation Law damages intention to seek be- whatsoever of an 418.381(2); for MCL provided the extent yond 17.237(381)(2): MSA act, sought under any [I]f period of time payment earlier shall not be made for preceding years immediately than 2 the application employee date filed an the hearing
for a the bureau. with Upon appeal the held that the wcab, wcab defendant on MCL ability rely lost its 17.237(381)(2) because, 418.381(2); MSA the issue hearing had not been raised before the referee: By its failure to invoke the rule of 381(2) court, Section before the trial defendant has defense, nonjurisdictional waived the affirmative akin to a statute of limitations. It cannot thus appeal raise that issue for the first time before board. is, petition
Because the "complaint” —that 1986] Howard Motors v General Levin, Separate Opinion concerning hearing gave issue no notice of an — two-year beyond of MCL limit benefits 17.237(381X2), 418.381(2); no basis for there is MSA pleading responsive finding in this case. No waiver 2.110(B) an to such made could be under MCR implic- referee Since unstated claim. itly the nature of raised opportunity of the benefits, the first the award of two-year-back rule was to raise defendant v General In Kleinschrodt before wcab. (1978), Corp, held we 381; 263 NW2d one-year-back MCL rule of failure to raise 17.237(833) board before 418.833; MSA such a not hold that in a waiver. We did resulted gives even before a must be raised defense notice that benefits period prior sought are filing petition. preceding years Such a of a two requirement mockery of the rules of make a would process possibly procedure violate due civil Therefore, I with the reversal concur law. the remand of the Court decision Appeal Compensation Board. to the Workers’ Finally, and the rule similarities, while the *26 they are some rule bear related to I not decide issues not identical. would Thus, I instant case. the would overruling
disagree of Klein- with the supra. schrodt, J.,
Williams, C.J., concurred Cavanagh, J. Boyle, with opinion). (separate to the view I adhere Levin, Corp,
expressed
v General
(1978),
381;
While suggestion waived, the Workers’ there is no subject Appeal Compensation Board without by jurisdiction the claims asserted to hear matter plaintiff Harry Certain constitutional Howard. guilty.1 plea of even claims cannot be waived concept exceptions apart,2 narrow Those right per- nonassertion of as a result of waiver jurisprudence and is not limited meates statute of limitations. defense of the spoke supra, Kleinschrodt, the Court of limita- to the statute rule as "akin back right in "akin” to the rule is also tions.” back right by jury and to the case to trial a civil appellate review, waived of which be both right. timely to assert failure plead timely defense, an affirmative A to failure suppress evidence claimed to file a motion of constitutional obtained violation have been rights, object evidentiary objections, toor to make many instructions, others are waived nonassertion. impor- rights so waived are as that can be positive formulation as in their verbal
tant the back rule. The generally
statutes of limitations bring person may example, provide, "[n]o beyond the time limited. or maintain action”3 change A in the Kleinschrodt rule would legislative objective of ac- inconsistent with cording greater finality of the trier to the decision proceedings.4 of fact workers’ 1 (1986). New, 482; People 398 358 See v 427 Mich NW2d readily mind. are others that do not come No doubt there 600.5803; See, 600.5801; 27A.5801, e.g., MSA MSA MCL MSA MCL 600.5807; 27A.5803, 27A.5805, 600.5805; MSA MCL MCL 27A.5807. 571, 621; Labor, Dep’t See Civil Service Comm v (1986). NW2d *27 Howard v General Separate Levin, J.
We affirm the Court of decision would upholding award workers’ plaintiff. benefits to the J.,
Archer, Levin, concurred with