Riley v. Northland Geriatric Center

431 Mich 632 (AFTER REMAND) RILEY v NORTHLAND GERIATRIC CENTER (AFTER REMAND) JUNCAJ v C & H INDUSTRIES (AFTER REMAND) MOORE v DETROIT BOARDOF EDUCATION (Calendar 81129, 81325, 4, Argued May Docket Nos. 81689. Nos. 3-5). 10, Judgment Juncaj Decided 1988. November order amended Mich 1219. Riley compensation was awarded workers’ benefits for Geneva injuries arising employment out of and in the course of her Following with Northland Geriatric Center. decision Products, Supreme Court Gusler v Fairview Tubular (1981), adjustment provision Mich 270 that the annual of the benefits, compensation applied only workers’ act to maximum hearing plaintiffs weekly referee reduced the minimum bene- reversed, Compensation Appeal fits. The Workers’ Board con- cluding judicata that the doctrine of res barred the reduction. Shepherd, P.J., Appeals, The Court of P. and Mackenzie and Nicolich, JJ., affirmed, holding that Gusler which was relied upon by precedent rehearing the referee was not because had granted subsequently been that case and it was dismissed stipulation parties, rendering nullity the decision a (Docket 75937). reversed, Supreme holding No. The Court binding precedent, Gusler is 425 Mich 668 and re- Riley Appeals manded the Court of for consideration of the judicata remand, retroactivity. issues of res and On the Court Danhof, C.J., Shepherd, JJ., Appeals, and Mackenzie and curiam, opinion per holding in an affirmed that res (Docket 94913). barred a reduction of benefits No. The defen- appeal. dants Ljena Juncaj injuries was awarded workers’ for arising employment out of her with C & H Industries. Follow- Gusler, ing the decision in C & H’s insurer reduced the claim- hearing ant’s level of benefits. A referee found the reduction reversed, proper under Gusler. The wcab and the Court of Burns, P.J., Burns, JJ., Appeals, R. B. T. M. Allen 85295). (Docket appeal Supreme denied leave to No. abeyance pending Riley, ordered the held in case decision of References 2d, Compensation seq., Am Jur 469 et 598. Workmen’s §§ Compensation. See the Index Annotations under Worker’s Rem) (Apt Geriatric v N’land and thereafter remanded the case to the Court retroactivity. the issues of res On consideration of Hood, P.J., remand, Appeals, and Weaver and M. the Court of curiam, JJ., holding opinion per Warshawsky, reversed in an applies judicata is not a and that Gusler to all that res bar (Docket payments No. made after the date of its decision 95587). plaintiff appeals. The compensation injuries awarded workers’ Katherine Moore was arising employment with the Detroit Board of out of her Gusler, initially Following in the wcab Education. the decision benefits, granted later the board’s motion to reduce her but original following the the award the decision of reinstated binding prece- Riley that Gusler was not Court of P.J., Appeals, T. M. and Cynar, The Court of and dent. Burns JJ., per unpublished opinion Kobza, E. reversed in an M. 86579). (Docket Supreme No. The Court remanded curiam Appeals to address the issue of the case to the Court of remand, application Court of of Gusler. On retroactive Cynar, P.J., Hood, JJ., Appeals, affirmed its and Wahls 99822). (Docket opinion per No. earlier decision in an curiam plaintiff appeals. Riley opinions by joined by Chief Justice Griffin, In Justice Supreme Brickley, Levin, and Justice Justice held: application judicata does not bar The doctrine of res Products, provision that the

rule of Gusler v Fairview Tubular compensation adjust- act for annual of 355 of the workers’ § maximum, applies only weekly and not benefit rates ment of 30, rates, minimum, paid to all benefits due or after December 1981, of decision in Gusler. the date Riley joined by and Justice Griffin, Chief Justice Justice Levin, explained: are a form of income 1. Workers’ maintenance, upon depends a claimant’s entitlement to which time of at the time of and the circumstances payment. of a claimant’s award is never Because the amount permit- of benefits is final and redetermination of amount apply change ted, principles do not to a of res the amount of benefits. compen- provisions adjustment 355 of the workers’ of § 2. The Gusler, act, interpreted clearly were intended to sation 1981, the date of apply payments made after December decision, regardless made was of whether award the Court’s after that date. before or concurring, doctrine of res stated that the Brickley,

Justice 431 Mich relitigation payments should be held to bar as to all pursuant and benefits awarded or denied to an earlier determi- nation, only subsequent petition changed but until a based on presented circumstances is filed and the issues are resolved. Thus, application regarding of the rule of Gusler the annual adjustment weekly payments of maximum benefit rates to decision, regardless made after Gusler’:s date of of when the made, award of benefits was should not be barred under the judicata. doctrine of res Juncaj, correctly approving the referees ruled However, Juncaj, the reduction of future benefits. should be remanded to the wcab for a determination whether the unilat- and, eral employer improper reduction of benefits if so, the extent to which the claimant should recover benefits improperly Moore, pending withheld. In because the case was decided, before the wcab when Gusler was there was no final require analysis determination which would an under the judicata. doctrine of res adequately The Gusler issue was preserved when it was raised before the wcab.

Riley, reversed.

Juncaj Moore, and affirmed. joined by concurring Boyle, Justice Justice Cavanagh, part dissenting that, part, agreed and because in Moore judgment, judicata there was no final the doctrine of res is inapplicable, but would not hold that the defendant waived challenge regarding by failing minimum benefits to raise it before the referee. Riley Juncaj, application judi- of the doctrine of res preclude reopening litigation cata to technically of the manifestly just. upon correct and Collateral attacks the amount compensation, opposed eligibility, always per- are not Ignoring missible. the doctrine of res will result in the summary liability many litigants alteration of benefits or for who opportunity have never been afforded an to address the any proceeding. issue in court or administrative dissenting, Archer, Justice stated that the doctrine of res relitigation plaintiffs’ should bar minimum levels, requiring Riley benefit affirmance in and reversal Juncaj rendering unnecessary consideration of the issue of application Moore, the retroactive of Gusler in those cases. In the decision of the Court of should be reversed. The defendant waived the 355§ issue its failure to assert prior Gusler, and, thus, before the wcab to the release date of (Aft Rem) Geriatric v N’land Opinion by Griffin, J. retroactively applied. should not Gusler (1987) 507; App 160 Mich 408 NW2d 489 reversed. (1987) App affirmed. (1987) App 130; 414 NW2d 160 affirmed. Compensation Adjustment — — of Maximum Benefits Workers’ Res Judicata. judicata does not of the rule The doctrine of res bar provision compensation act that the of 355 of the workers’ for § adjustment weekly applies only to annual maximum, benefit rates minimum, rates, paid to all benefits due or and not (MCL 418.351[1], 418.355; after December MSA 17.237[351][1], 17.237[355]). Flaherty Zamler, K. Bockoff & P.C. Anne (by Jonas), and Joel W. plaintiffs Riley for and Moore. Sachs, Nunn, Kates, Kadushin, O’Hare, Helve- Melvyn Waldman, & P.C. J. Kates ston (by Ries), Granner S. plaintiff Juncaj. for Marcinkoski) Lacey M. & Jones Gerald for (by and Michi- defendants Northland Geriatric Center gan Company. Mutual Insurance Day, Felker, Lovernick, Sinn, P.C. (by Chinitz & Chinitz), Gilbert M. & H for defendants C Indus- Company. tries and Allstate Insurance Charfoos, Reiter, Peterson, Krut Law Offices of Jones), Jones, & P.C. Kenneth E. defendant (by Detroit Board of Education.

AFTER REMAND in these workers’ granted J. We leave Griffin, among a conflict cases to resolve concerning panels of the Court of Products, v Fairview Tubular application of Gusler (1981), 414 270; gtd 388 reh 315 NW2d (1982), Mich 1102 app dis 414 Mich Advertising American Distrib- Overruling Jolliff v utors, Inc, 211 NW2d App 431 Mich Griffin, adjustment provisions we held Gusler § Disability Compensation of 3551 of the Workers’ 3applyonly Act2 minimum, maximum, and not to the 351(1)3 weekly rates § established in the act.

Taking into account the reliance on Jolliff dur- ing eight years, an interim of more than ruling Court determined that its in Gusler should implemented be as follows: In the interest of fairness we do not believe our holding any should affect disability compensation payments already made. Consequently, recipi- no obligated ent will be repay already sums re- ceived reason of the computation erroneous However, formula we have today. nullified any

benefits due yet paid and not or to be awarded after the opinion date of this shall accord ruling. with this at [Id. 298.] principal issue raised is whether the di- respect rected correction of JolliiFs error with paid” yet "benefits due and not after Gusler is precluded by judicata. doctrine We conclude that res is not a bar. We further applies paid hold that Gusler after December to all benefits due or opinion 30, 1981, the date of our including paid pursuant case, prior awards entered to that date. i turning issues, Before to a discussion of the we proce- shall examine facts and the interrelated history dural of these cases.

A. RILEY plain- 6, 1981, On October a referee awarded the MCL MCL 418.101 MCL 418.351(1); 418.355; et MSA seq.; MSA 17.237(355). MSA 17.237(351X1). 17.237(101) et seq. Riley Rem) (Aft Geriatric v N’land by Opinion Griffin, J. per compensation on the basis of week of tiff $119 Jolliff. No in accordance with determined a rate appeal later, this Court months taken. Two was petitioned for a Gusler, and defendant decided reduction plaintiffs in accordance granted. Gusler, the referee which with Appeal Compensation Thereafter, the Workers’ affirmed reversed, decision was and its Board ground Appeals, on the Court of but binding precedent. in Gusler is not decision Court’s The ing filing panel Riley enter- that, and noted after granted opinion Gusler, this Court its rehearing dismissed and thereafter motion appeal upon stipulation. of It the conclusion opinion panel Riley had never that our Gusler 1963, GCR then in accordance with "issued” been Riley Center, 140 Mich v Northland Geriatric 866. (1985). App 72; 362 NW2d 894 point appeal, reversed on this Court On binding opinion in Gusler became that our held 1981, precedent filed on December when was rehearing grant subsequent notwithstanding the case addition, In we remanded and dismissal. of res for consideration the Court of retroactivity not judicata which had issues appeal. Riley v the earlier been addressed 668; 391 Center, 425 Mich Geriatric Northland (1986). Appeals held that res remand, the Court On plaintiffs benefits. a reduction barred (On Remand), Riley Geriatric Center Northland (1987).4 App then We 507; 408 NW2d 160 Mich appeal. granted leave B. JUNCAJ plaintiff Juncaj, $79 was awarded son, Melvin and her action of this died after commencement estate, substituted representative has been King, personal of her plaintiff. 431 Mich Gkiffin, per week on Jolliff, the basis of and the award was appealed. Thereafter this Court decided Gus- ler, plaintiffs and defendant’s insurer reduced requested level of hearing benefits. Plaintiff then argued that res barred such a reduc- finding tion. The referee relief, denied the reduc- proper appeal, tion under Gusler. On however, the relying Appeals reversed, on the Court of wcab Riley binding prece- decision in dent. that Gusler is not Appeals After ap- the Court of denied leave to peal, applied defendant Court, to this and we abeyance pending ordered the case held in our Riley. Riley, decision in Once we had decided we Appeals remanded the case to the Court of retroactivity consideration of res is- by plaintiff. Juncaj sues raised remand, On panel contrary Appeals held, to the Court of deci- (On Remand), Riley sion in that res is not applies payments opinion a bar and that Gusler to all after 30, 1981, December case. the date of our in that Juncaj App Industries, v C & H (1987). granted plaintiffs 724; 411 NW2d 839 We appeal. for leave to 429 Mich 885 (1987).

C. MOORE plaintiff 26, 1981, On March a referee awarded per applicable week, Moore the rate $108 under appeal Jolliff. While defendant’s to the wcab was pending, Gusler, this Court decided and the wcab granted plain- then defendant’s motion to reduce tiff’s benefits in However, accordance with Gusler. Appeals Riley, the Court of thereafter held in that binding precedent. Gusler is not The wcab then affirmed a decision the referee which reinstated original plaintiff. award to Riley y Rem) (Aft N’land Geriatric Griffin, appeal Appeals While a second to the Court our pending, this Court held in in Gusler 30, 1981, binding December decision then precedent. Court of reversed plaintiffs and ordered reduction in benefit wcab accordance with Gusler. Moore Detroit rate Ed, Bd opinion Court of unpublished (Docket 3, 1986 Appeals, decided December No. 86579).

On appeal, we remanded the case to the Court of Appeals with to consider instructions whether Gusler should be given retroactive effect. Thereaf- ter, the Moore Gusler panel opined applies (the all payments made after December Gusler), date of though even have may case been date, prior decided to that on the relying imple- Gusler opinion. menting set language forth in our (On Moore v Detroit Bd Remand), Ed 130; 414 App the Moore After panel certified a conflict with the decision of the Riley panel, granted remand appeal. we leave to (1987). 429 Mich 885

ii In and Juncaj, plaintiffs point out that compensation their rates were to Gusler prior set by decisions that were not appealed, and they argue that any post-Gusler reduction in is benefits barred res by judicata.5

The applicability of res judicata in principles workers’ compensation cases recognized. has been v Hlady Co, Wolverine Bolt See 368, (1975); Materials, Theodore Packing Inc, 152, 158; (1976); 396 Mich 240 NW2d 255 Gose issue, judicata In Moore there is no as there has been no final by award. Gusler was the wcab appeal decided this Court while defendant’s pending. 431 Mich Griffin, Equip 147, Co, 161; Monroe Auto v NW2d considering is Nevertheless, how res in applied context, we have not over- in to be be- there is a fundamental difference looked tween the the award of lump-sum judgment and in a tort action

continuing weekly in a work- benefits compensation noted This difference was case. ers’ concurring, Hlady, wrote, Justice who Levin supra at 391: benefits, compensation disability like Workmen’s compensation security unemployment social benefits, are a form of income maintenance wage-earning capacity has persons whose been A suspended or claimant’s entitlement terminated. depends on at the circumstances such benefits payment. the time of judicially is a created doctrine Res appropriate the use of reflects concern for which finality litigation. judicial resources and doctrine, However, applicability its it is not an inflexible part upon legal depends con- a determination is made. text which employ- variety circumstances, an a wide future rate of workers’ ee’s change. may subject Events the future operate to increase or decrease the amount example, For as a which he is entitled. benefits to consequence injured employees 357, of 1980 PA certain September 1965, 1, and December

between January 1982, 31, 1979, became entitled after supplemental off- § 352 to benefit under receive living. Furthermore, if in the set increases cost recovers, at a less worker or later works a disabled compensation job, of his the amount lucrative subject adjustment, is not a and res bar. Rem) (Aft v N’land Geriatric Griffin, Wyoming, in Pike v of City

Recently, 433 NW2d 768 this Court faced a question important respects similar to the issue Pike, presented in the now us. In cases before plaintiffs amount of award was increased because presumed depen his was a conclusively wife to be provision6 dent under one of the Workers’ Disabil Act, ity Compensation and there no appeal Thereafter, from that determination. this Court declared unconstitutional gender-based similar presumption provi widows under a different Pike then sought sion* of the act. The defendant plaintiff’s benefits, reduction the level of alleging plaintiffs that depen wife was not in fact plaintiff argued dent. The that res judicata barred any redetermination of his held award. We preclude res did not an adjustment amount the employee’s benefit: employee’s Because the amount of an award is final, judicata principles never a apply do not change in the amount of benefits the claimant receives. This is consistent with flexible nature system workers’ per- which mits ant’s benefits. redetermination the amount aof claim- [Pike, p 602.] Pike, As in a new determination in these cases Gusler would affect only the made on the basis of plaintiffs’ amount benefits and not their eligibil- Pike, ity compensation. for workers’ inAs we conclude that res judicata does bar a redeter- mination the amount of plain- benefits to which tiffs are entitled.

Furthermore, we Legislature doubt could have intended the unfairness that would MCL MCL 418.353(l)(a)(i); 418.331(l)(a); MSA MSA 17.237(331)(l)(a). 17.237(353)(l)(a)(i). Mich by Griffin, in the plaintiffs position urged by result if the plaintiffs’ adopted. instant were to be Under cases rates Jolliff-based theory, many employees whose their before voluntarily employers paid were reductions, to post-Gusler Gusler would subject happened employers whose employees while other the rate before Gusler would not be contest affected. that conscious of

We satisfied this Court was are wrote, it "In the interest such considerations when holding not our should of fairness we do believe al- compensation payments any disability affect However, any . . . benefits due made. ready this after the date of not to be awarded yet paid Gus- ruling.” be in this opinion shall accord with added). Likewise, ler, if the (emphasis supra at from effect of Gusler had been to increase benefits opinion, res and after date obtaining have from precluded plaintiffs would not the increase. that, by directing that its "new

We conclude and not any yet rule” benefits due apply the Gusler Court res implicitly stated paid, preclude adjustment judicata would In so we opinion. concluding, after the date of its separate with Justice agreement are in Levin’s 690: Riley, statement give a preclusive effect to Were Jolliff as to prior adjudication was based on payments compensation benefits after workers’ a Gusler perpetuate, the name of would doctrine, construing a judicial a error in judicial legislative intent. statute that thwarts post-Gusler ad- conclude that Accordingly, we rates as directed justment Gusler judicata. is not barred (Aft Rem) v N’land Geriatric Opinion by Griffin, J.

HI change We next consider how the of law an- applied nounced in Gusler is to be in the instant cases. change

Sometimes court which announces going step law will refrain from the next to indi applied. cate how its new rule is to be See Ross v (On Rehearing), Consumers Power Co 420 Mich (1984), Day 567; 363 641 NW2d v W A Foote Hosp, 698; Memorial 412 Mich 316 NW2d 712 (1982), Highland and v Park, Parker 404 183; Mich (1978). situation, 413 NW2d In such a prospective-retroactive left issue is for decision in a later case. delay Gusler, however, did not we that deci- proceeded provide specific This

sion. precise concerning applicability directions of stating: rule,” the "new

Although holding our per- is based on what we Legislature ceive to have been intent of the at provisions discussed, the time of enactment of the practical effect, given the contrary interpreta- by tions Workers’ the law Director Bureau of Compensation and the bureau’s subdivi- sions, Compensation Appeal the Workers’ Board referees, hearing Appeals, and its Court of today’s holding is not unlike the announcement rule Its application new of law. therefore should Awkerman, See Whetro v accordingly. be treated 235; Parker Port (1970); NW2d Hospital, Huron Bricker v 1; (1960); 361 Mich Green, 313 Mich 21 NW2d 105 In the do our interest of fairness we not believe holding disability compensation affect any should payments already Consequently, recipi- made. no obligated repay already ent re- will be sums computation by ceived reason the erroneous Griffin, However, any today. have nullified formula we yet paid to be awarded or benefits due and opinion be in accord of this shall after the date ruling. at with this 298.] [Id. Refin R Oil &

In Great Co v Sunburst Northern ing Co, 145; 77 L Ed 360 358; 53 Ct 287 US S Supreme Court made the United States not precluded state courts are clear determining from whether constitution federal applied law-changing own decisions should their Court stated: prospectively. retroactively has no voice We think the federal constitution defining upon subject. A the limits of state precedent may make choice adherence principle operation itself forward between may say It that of relation backward. court, highest though over- of its later decisions ruled, law less for intermediate are none the hand, hold may . . . the other transactions. On by dogma the law declared its to the ancient the a Platonic ideal existence before courts had declaration, the discredited in which event act been, if it had never declaration will be viewed law from the the reconsidered declaration as beginning. . . . The the same alternative subject of the new decision is common whether . any ... . . The choice for state law or statute. juristic philosophy by the may be determined courts, law, conceptions of judges of her their origin We review not wisdom of its and nature. legality of their acts. philosophies, their but at 364-365.] [Id. resolution acknowledged have

Courts turns on ultimately issue retrospective-prospective Peter- public policy. considerations fairness (Aft Rem) v N’land Geriatric 645 Griffin, J. Superior Court, v son 147, 152; 31 Cal 3d 181 Cal Sterling (1982). v Placek 784; Rptr 624 P2d 1305 In Heights, 638, 665; (1979), 275 NW2d 511 (1979), reh den Mich 1119 406 this Court said: precedent This prior many Court has overruled past. times in the In each such instance the Court must take into account the total situation con- fronting just it and seek and realistic solution problems change. occasioned that Gusler We requires ap- believe fairness plied to workers’ awards made after the date Gusler 30, 1981, decided, December all benefits due and not after that yet paid date where the award the date of the preceded opinion. holding Such a is fair because allows employers to reduce their payments accordance Legislature’s with the intent while em- protecting ployees with respect payments received before Gusler. goal,

While fairness princi- is a certain rules or ples have provide guidance evolved which in re- solving the In retroactive-prospective dilemma. People Hampton, v 674; 187 this Court adopted three-part test Walker, v Linkletter 618; set forth in 381 US S Linkletter 1731; L Ct In Ed 2d United States Supreme Court ruled that its deci- Mapp Ohio, 1684; sion 81 S Ct US (1961) L Ed 2d (requiring states exclude evidence seized in violation of the Fourth Amend- ment) should not be applied retroactively. (1) result, the reaching weighed that the Court (2) rulé, purpose to be the new the by served 632 431 Mich 646 by Griffin, (3) rule, the the and effect extent of reliance on old retroactivity justice.8 of of on the administration

Application test, also leads of the Linkletter applied to awards the made after December Gusler be conclusion that 1981, 30, due and benefits paid yet 30, and 1981. Under after December purpose Linkletter, of the "new we first to the look It rule” in Gusler. correct laid down interpretation of a statute serious error under which excess of the rate intended being paid employees were by Legislature. We purpose this would best be furthered believe applying only payments after the Gusler made opinion’s date. employ-

Second, account of fact that we take eight years employers more ees relied for than holding minimum as well as on the Jolliff maximum that adjustable § 355. under Gus- rates were language appropriately recog- implementing ler’s safeguards employees by reliance, nizes that any portion requiring repayment not received of of benefits prior to Gusler. only pay

Finally, by applying the new rule 1981, Gusler was de ments after December signed upon to have a minimum effect admin justice. People Auer, 393 Cf. Mich istration 667, (1975), 677; reh den (1975).9 plaintiffs that In Moore claim case, Huson, 97, 106-107; S In Oil Co v US a civil Chevron applied essentially 2d the same Ct test clearly 30 L Ed Court question: the addition of a threshold Does decision with principle establish new law? 9 Auer, retroactivity In of the then re this Court addressed holding cently adopted objective entrapment. the new test expressed prospective, concern about rule was to be effect on would have the administration retroactive require many noting "retrospective application justice, would reassembling now tremendous obstacle of cases new trials with the Id. at stale evidence.” 677. Rem) (Aft v N’land Geriatric Opinion by Griffin, J. citing supra, Whetro, Parker, Bricker, the Gusler Court an indicated intent that Gusler apply only should to after cases commenced De- pending 30, 1981, cember and to cases on that date Disability Compensa- in the Bureau of Workers’ tion, or in the Court of which wcab, adjustment the minimum rate was issue raised. Juncaj argues apply Plaintiff in only that Gusler should injury in to cases which occurred after persuaded 30, December 1981. We are that the purpose. citations were for that adopted "po- Whetro, wherein Court this compensation cases, sitional risk” rule in workers’ apply we determined that the new rule would to arising claims after the date of that decision but apply pending would not than cases other Likewise, case Parker, then at bar. in this Court abolishing held that a new rule charitable immu- nity apply only would to that case and cases arising opinion’s However, after date. in change Bricker, this Court stated that its law abrogating imputed negligence apply "pending” well as to "future” cases. Whetro, Parker,

We believe the and Bricker decisions were cited to this demonstrate that always applied general has not rule that law changing judicial given decisions are to be com- plete Obviously, retroactive effect.10 the three cases pattern. Accordingly, did not follow same we conclude that the Court’s to the reference three general purpose spe- cases was for a cific not the purpose plaintiffs for which contend._ Co, 37, 44; Copper See Martin White Pine 378 Mich 142 (1966). general judicial While is the rule for decisions which law, change preexisting legislative changes make a preexisting in substantive in prospective, generally contrary are to be unless a law held manifested, legislative clearly proce intent is unless the statute is Products, 9-10; dural or remedial. Selk v Detroit Plastic 345 NW2d 184 431 Mich Geippin, justified interpretation

Furthermore, our imple- unambiguous required by the clear and provided menting language which this Court opinion. concluding paragraph of our Gusler supra, Riley, As wrote Justice Levin 688-689: rule nothing applying the

There is unfair Gusler, appears to have been which stated varying analyses, on from and today reaffirmed opinions of the after the date of the announcement in justices Gusler. concluding paragraph in . . . The statement surely ade- opinion in Gusler was majority of the quate compensation depart- to the notice workers’ bar, ment, Jolliif wcab, bench and that should It "un- longer ... not be no be followed. would that, fair” to hold in the instant case as declared Gusler, yet paid or to "any due and not benefits opinion] Gusler awarded after the date be [the ruling” stated shall be in accord with th[e] to subject not that the minimum rates are Gusler adjustment. urged accept interpretation by

If were to we part effectively nullify plaintiffs, that we would implementing language any that which states paid yet the date of due and not after paid Gusler. Con- Gusler shall be accord with plaintiffs, argument trary to the advanced holding to cases commenced Court did not limit its pending 30, 1981, cases after and to on December Disability, of Workers’ that date the Bureau appellate the mini- wcab, or an court in which adjustment Rather, raised. mum rate issue was holding clearly that its "not Gusler stated apply law,” ... rule of was unlike a new paid yet "any or due and beneñts (Aft Rem) v N’land Geriatric Brickley, J. after the date Gusler was awarded [that added).11 Id. . . . at 298 (emphasis decided] We the implementing conclude language means says, what and payments after 30, 1981, December adjusted are to be in accord Gusler, with whether was award made before Gusler. after

IV Although plaintiffs us encourage to reconsider Gusler, overturn our decision in we decline the invitation do so. We remain convinced that Gusler correctly decided. Riley, In we reverse the judgment the Court Juncaj Moore, Appeals. we affirm the

judgment of the of Appeals.

Riley, C.J., J., Levin, concurred with Grif- fin, J. (concurring).

Brickley,

A. INTRODUCTION City Wyoming, Pike v Concurring 431 Mich 589; (1988), 433 NW2d 768 I expressed the view concept judicata traditional of res must be special tailored to meet needs income-main- 11 holding concerning Gusler, applicability In view of our we argument find no merit in the advanced that defendant in Moore right adjustment waived its to relief because it did not raise rate 30, prior appeal issue 1981. December As noted in n defendant’s pending from referee’s in Moore decision before the wcab Furthermore, when this Court Gusler. decided defendant moved promptly holding. after Gusler for relief in with its accordance We the also note that both the wcab and the Court of addressed adjustment in Moore. rate issue Mich 632 Opinion by Brickley, compensation. systems workers’ such as tenance judicata proposed "hybrid” Specifically, res I applied gov- concept that when the law should be judicial erning changed by systems such is deci- relitigation sion: The doctrine bars payments "all and benefits awarded de- pursuant determination, nied to an earlier but subsequent petition only until such time as changed circumstances that would based on previous litigation present is filed have at the been p presented Id., 607. and the are resolved.” issues B. RILEY AND JUNCAJ principle application of this straightforward. Juncaj cases, claimants both paid minimum benefits ac- were awarded Advertising Dis- cordance with Jolliff v American App tributors, Inc, 1; Subsequently, was overruled Gus- Jolliff Products, 270; 412 Mich ler v Fairview Tubular (1981), proceedings NW2d 388 new were in order determine whether future instituted accordingly. Referees in benefits should be reduced approved I the reduction. Because be- both cases of res is not a bar lieve that the doctrine agree circumstances, I the lead such with under opinion’s ruled the referees cor- conclusion rectly. supports this result. In the first of

Gusler itself addressing paragraphs of Gus- two cases, was to be ler other we noted that Gusler Id., 298. We cited as a new rule of law. treated general authority for the treatment three cases as of new rules

in other contexts. Whetro Awker- 235; Parker man, 383 Mich 174 NW2d Hosp, 105 NW2d v Port Huron Rem) (Aft Geriatric N’land Brickley, Green, and Bricker v decisions, Of these Parker and Bricker illustrate the of new rules in general litigation, only Whetro, civil while the three, workers’ of case the illus- prospective of trative effect to be accorded changes qualification eligibility which address for benefits. penultimate paragraph explains of Gusler

precisely given decision, the effect to be which only affected the amount of benefits to which a claimant is entitled. We held that Gusler could not applied require repayment payments so already pay- rule, made under the but Jolliff yet paid computed ments due but should be Significantly, Id., under the Gusler standard. 298. we did not limit award Gusler minimum benefits cases which awards were made after the date Gusler was issued. question Juncaj,

A further raised in but not employer below, answered is whether acted properly unilaterally reducing the claimant’s prior approval. benefits without administrative correctly Juncaj Given decided, that Gusler was should be remanded to the for it order wcab propriety employer’s implemen- consider Specifically, tation Gusler. the wcab should (1) determine whether the unilateral reduction of employer improper, so, and, if (2) claimant the extent to which should re- improperly cover benefits withheld.

c. MOORE pending Because Moore was still before decided, no Gusler was there was final wcab when trigger which would determination 431 Mich 632 by Brickley, J. analysis.1 Justice Archer would hold that the waiting employer, by until after Gusler had been to the the decided its minimum raise issue before waived wcab, right payment to contest the future Jolliff of agree, however, I the

benefits. with opinion. reached in Justice Griffin’s conclusion Additional by parties may evidence submitted the by considered the wcab.2 While the wcab is not required where, material, the to consider new so, here, it exercises its discretion to do the issue adequately preserved.3 been has perspective Furthermore, from the of adminis- economy, I it trative believe would be unwise require parties either to to burden administrative with a claim or defense that has decisionmakers not recognized, prevent yet been wcab considering judicial immediately from a recent by its is be accorded decision which immediate effect. terms

D. CONCLUSION foregoing reasons, I in concur the result For the opinion. addition, I In in Justice Griffin’s reached conclude Juncaj remanded to should be (1) it whether the in to determine order wcab employer of benefits reduction unilateral (2) improper, and, so, the extent to which if improperly should recover benefits the claimant withheld._ 17.237(851). 418.851; MSA MCL 17.237(859). 418.859; MSA MCL may intervening technically be judicial decision not if Even an is to draw distinction there no reason under § "evidence” evidence, particularly types in other such a decision and

between compensation proceedings. light Moreover, of workers’ the informal nature Evidence, Michigan courts, Rules of bound even 202(a). workers’ MRE In may compensation proceedings, judicial common law. notice take Michigan Rules strict adherence 17.237(841)(6). 418.841(6); required. MSA MCL is not Evidence Rem) (Aft v N’land Geriatric Opinion by Boyle, J. (concurring part dissenting in

Boyle, part). holding majority’s I Moore, concur my view, do but so for different reasons. Justice correctly has observed that there was no Archer judgment final trine of Moore therefore the doc- inapplicable. See Restate- Judgments, 24(1), p 2d, § ment Cohen Home Co, 469, 473; Life Ins NW per- However, unlike Justice I am Archer, challenge suaded regarding defendant waived the by failing minimum raise hearing appears before the referee. It that preserved defendant raised and rate benefit proceedings proceedings in issue these or the be- Products, low1and that Gusler v Fairview Tubular 412 Mich (1981), 270; 315 in NW2d 388 terms applies payments 30, made after December appears plaintiff However, 1981. that the herself preserve failed to raise of issue defen- dant’s I waiver. would therefore affirm the decision

of the of in Moore. agree hand, On the other I with both Justice reasoning holding in and Jun- Archer’s caj. separately only my I write add a of few own majority opin- observations as to the course of the in ion these cases. majority holding

The asserts that the its basis of regarding judicata the effect res in of these cases continuing the compensation nature of an award workers’ wage

disability, loss, or benefits. The majority compensation contrasts workers’ regard damages. in my tort this with or contract proper analysis depen- view, however, as provision dency City Wyoming, in Pike v 431 589; illustrates, Mich 433 NW2d 768 continuing payments in nature of these is relevant Corp, Thompson 226; Motors v Continental 320 Mich (1948). NW2d 431 Mich 632 Opinion by Boyle, J. instances, a only change few such aas of physical specific condition2 or in exceptions the act.3 These are well-established to the exceptions general rule proceed- res workers’ ings recognized the decisions of this repeatedly Materials, Inc, See, Packing Theodore v e.g., Court. Wolve- 152; (1976); Hlady Co, rine Bolt 224 NW2d exceptions, these crafted there is no Beyond carefully a distinction between final tort or contract principled judgment final decision of the bureau4— regardless principle of how times this dubious many repeated dissenting concurring opin- may be upon major- nominal distinction which ions. The has ity simply majority’s seized is vehicle adjudged rights the accrued and of these voiding of on Certainly nothing justifies these facts workers. an ad from the doctrine res departure ruling hoc of this Court. for its on the concur- majority relies result Hlady, supra. In addition to the fact

rence in its reliance acknowledge fails to majority sub silen- judicata, Justice Levin’s view of on Mon- Hlady and Gose v tio, holdings overrules Co, 147; 294 NW2d Equipment roe Auto on Justice Levin’s majority 165 the focuses intervening change of law eliminates that an view for continu- as to "a claim judicata the bar of res (em- Hlady, supra, p benefits,” 385 ing disability has Legislature the original). in the Because phasis may in certain circum- changes in facts said that benefits, majority the change a in stances permit Co, See, NW e.g., Motor Hebert v Ford 17.237(353). 418.353; MSA See MCL judgment in Indeed, a is enforceable as of the bureau a final order 17.237(863). 418.863; MSA court. See MCL circuit Rem) (Aft Geriatric v N’land Boyle, a that as matter its own concludes policy permit relitigation can where determination adjudicated finally facts and the the have been litigation subsequent change new is on a in based premise majority the law. From this incorrect the "implicitly reaches the final Gusler result that preclude stated” that would not the finally adjudicated unap- reduction in of benefits pealed litigation, again empha- cases, it must change any sized, that not in do involve facts. As p Hlady, supra, judi- this Court held in "res happening.” bars cata this from agree language I cannot in that Gusler regarding prospective application of the deci- implicitly sion was intended to overrule the hold- ing Hlady judicata precludes in that res a collat- continuing eral attack on a claim for benefits with change Hlady a later law. not even cited Hlady majority Gusler, and two members joined Indeed, the Gusler result. were I to conclude "penultimate” para- broad dictum the graph construed, of Gusler could be Gusler so precedent questionable would be of the most sort.5 my For the Pike, reasons stated in dissent supra, accept majority’s I cannot conclusion upon that collateral attacks the amount of com- pensation, opposed always eligibility, are permissible. There is neither theoretical basis practical applica- this distinction nor a limit to its majority’s truth, tion. conclusion in this concurring opinion case, as well as in the of Jus- concurring opinion Brickley6 tice and the of Jus- 5 I, course, position case, no take the context of this on ruling regarding adjusted substantive of Gusler minimum benefits. Bkickley nominally "hybrid” While Justice endorses rule of res compensation proceedings, finality only in workers’ exists " subsequent petition changed until 'a based on circumstances present previous litigation would have been at is filed 431 Mich Boyle, by collateral turns the matter of Hlady,7

tice Levin benefits into a continuing on award of attack an decided on an ad hoc basis policy question Court. The bar four members of this bench and by how this guidance therefore without as to are and Pike exception applied. This case will be will refinements of this rule suggest finding any process in the either emerge of a permits change reopening law governing are or that some collateral attacks final award event, ulti- In either more fair others. than mate result is an unwarranted alteration compensation of res doctrine workers’ proceedings. in the apparent is more than

This nowhere in Riley: from majority’s quotation Justice Levin a give preclusive Court to effect to Were this prior adjudication on Jolliff that was based [v Distributors, Inc, Advertising 49 Mich American (1973)] as App workers’ would payments 211 NW2d 260 benefits after Gusler judicial in the name of a doc

perpetuate, trine, judicial construing a statute that a error in intent, legislative [Riley Northland Ger thwarts Center, 668, 690; 391 NW2d 331 iatric (1986).] said about any same could be Hlady, p supra, Justice stated: Levin changed legislative or court The law can be enactment statute, applicabil- Legislature When the amends its decision. ity adjudicated previously analyzed in terms of to a case judicata. statutory did The issue then is one of construction: Legislature to have as intend amendment retroactive change prospective application? Where is effected well as court decision the matter of as same, analysis be the whether as should apply retroactively policy the new rule of law should prospectively. well Riley (Aft Rem) v N’land Geriatric Dissenting Opinion Archer, J. involving the doctrine of res judicata prior con- of Disability Compensation struction the Workers’ I respond ignoring Act. would the doctrine of res judicata summary results alteration of litigants many who have never been given an to the issue in opportunity any address proceedings. court or It administrative is not erro- apply neous to the doctrine of res in this judicata instance. To of contrary, application an preclude litigation doctrine of this reopening is both technically correct and manifestly just.

I Juncaj. therefore dissent and Cavanagh, J., Boyle, concurred with J.

Archer, J. (dissenting). The resolves majority present the conflict in the of Appeals appli- cation of this Court’s decision in Gusler v Fairview Products, Tubular 412 Mich (1) (1981), by holding that of doctrine res judicata does not relitigation plaintiffs bar 351(1), minimum weekly benefit rate under § (2) our decision in Gusler is retroactively applica- ble to parties those receiving minimum rate bene- fits at the time of the irrespec- decision’s release tive of their date of injury.

I respectfully dissent and would hold res judicata bars relitigation plaintiffs’ mini- mum benefit levels. I would affirm the decision the Court of Riley, while I would reverse its decision in Juncaj. I find it Accordingly, unnecessary to address the retroactive of the Gusler However, decision these two cases. Moore, I would hold that Gusler regard with not retroactively applicable because defendant waived the 355 issue by its failure to assert § prior 30, 1981, before wcab to December Gus- ler’s release date. Archer, Dissenting Opinion

I relitigation bars judicata of res The doctrine were either legal, which all matters factual the time of trial: at adjudicable adjudicated prevent operates to The doctrine of the same law between relitigation of facts plea of res privies. their parties or applies to points previously litigated and decided " belonged properly points 'which as well as the parties, litigation, and which the subject might diligence, have exercising reasonable ” brought the time.’ Workers forward at [Socialist State, 583-584; v of Party Secretary (1982). 317 NW2d 1 Citations omitted.] argues, agree, and I opinion The lead mechanistically not to judicata of res doctrine in be hesitant However, this Court should applied. where would serve deviating from the doctrine parties. to reward dilatory from indistinguishable I find the instant case Co, 393 in Wolverine Bolt Hlady our decision v (1975). 1947, Hlady 368; 224 Mich NW2d amputa- for the specific loss benefits was awarded predecessor of 361 fingers under tion of four § 17.237(361). 418.361; Once wdca, MCL MSA existing prece- expired, loss specific disability bene- continuing general dent disallowed upon "normally premised fits a condition deemed This Court and amputation. from an resultant” benefits, continuing find- plaintiff wcab denied did not exceed postamputation condition ing her v Wolve- Hlady resultant” standard. "normally Co, 23; Mich 37 NW2d Bolt rine Co, 350 However, Dorpel v Haven-Busch in Van (1957), divided 135; evenly an Mich enti- recipients were plaintiff’s court found class Rem) (Aft v N’land Geriatric Dissenting Opinion by Archer, continuing Nearly tied to benefits. three decades original Hlady again appealed, award, after her seeking continuing general disability ap- benefits, light parently Dorpel’s challenge of Van to the Although "normally resultant” standard. Dorpel adopted position, the Van we none- plaintiff’s upon judicata theless denied grounds: claim res Mary Hlady’s physical condition not has changed change since her 1945 injury. only applied has However, this been the law cases nature. long state, it has been the law of this starting leading with the case of Jacobson Miller, NW 1013 applies doctrine not only to facts previously litigated, but points also to of law necessarily which adjudicated determining were deciding subject litigation. matter of the issue,

Plaintiff may not concede an necessarily judgment determinative of and included in the this Court, then, after another has success- fully contest, raised the issue she did wish again ask the Court for relief. The of res doctrine happening. Hlady bars this from Mary easily could have as raised issue as Peter Van fact, was, Dorpel. so tion. upon It to do incumbent her if wished interpreta- she to avail herself 376, Mich [393 380.] Hlady As in the two of three instant defendants seek to evade res so to as revisit the same merely apply upon adjudi- case and new law an appeal. cated issue that was never for reserved On granted specifically 20, 1979, this November appeal upon § leave to the issue 355 whether applied to the minimum as well as maximum weekly disability rates for total as under available § 351 of the wdca: Mich Dissenting Archer, J. among the to parties are directed include The cost-of-living in- whether to be briefed the issues compensation disability bene- creases workers’ 418.355; fits, in MCL MSA provided for minimum the 17.237(355), apply as well as to disability, as set weekly rates for total maximum 17.237(351)? 418.351; v MSA forth in MCL [Gusler Products, (1979).] 407 Mich 926 Tubular

Fairview issue-specific grant Clearly, published our placed parties appeal to on notice leave the challenging viability § 355’s Riley, the Court’s order benefits. minimum-rate origi- plaintiffs prior to issued in Gusler was hearing hearing 1981,1 referee before nal although the issue defendant neither raised hearing Juncaj, appealed. In nor referee before although at Court’s order was available original hearing,2 of the the defendant the time appeal. also failed to to extend should be hesitant

This Court opportunity to raise an additional defendants upon It this Court is not incumbent defense. party’s any v Pike inaction. Accord reward other Wyoming, City 589; 433 NW2d (1988) Hackley, dissenting); Hackley J., (Boyle, 582; 395 NW2d 906 426 Mich " adjudica- represents

A award» 'an at injured of the workman tion as the the condition ” Packing Mate- entered.’ Theodore v time Inc, 152, rials, 240 NW2d Compensation, citing 58 Am Jur [Workmen’s Disability "are form of income § 508]. wage-earning ca- persons whose maintenance A suspended or terminated. claim- pacity has been depends on the to such benefits ant’s entitlement 1981. The decision opinion of the hearing hearing referee referee was was released on released on October July 19,1978. Riley (Aft Rem) v N’land Geriatric 661 by Dissenting Opinion Archer, J. circumstances at the time of pay- (Levin, supra, J., ment.” Hlady, concurring). requirement present that he of all his avail- single able claims in a proceeding is consistent purpose with this adjudicating the worker’s legislation, needs. The remedial if character the rubric, by affected at all this scarcely would by enhanced a construction which would authorize piecemeal compensation for an injury. [Gose Co, Equipment Monroe Auto 161- Emphasis NW2d added.] I find our rationale in Gose equally calls timely all employers submit available defenses. Therefore, I would hold that the plaintiffs should not be subjected relitigation of their mini- mum benefit rates and should enjoy finality res judicata affords.

ii However, Moore, agree I with the defendants of res judicata inapplicable. doctrine is In Moore, the defendant an appeal had be- pending fore the wcab at the time that our decision Gusler was appeal released. Because this filed, there is no timely question that there was final upon decision plaintiff’s benefit award. Nonetheless, I find that the defendant’s failure to state issue with specificity, effectively §355 waived its entitlement to the Gusler defense. I regard, adopt position would advo cated v North (On Remand), land App Geriatric Center Mich 507, 513; states, which pertinent part: opinion today when We believe that our is read Gusler, above-quoted language net

with apply effect that Gusler will to all cases com- 431 Dissenting Opinion Archer, 1981, 30, after date menced December issued, pending to opinion was those cases Disability Compensation, the Bureau of Workers’ the 30, on December wcab, appellate or an court 1981, was the issue of reductions in which § raised. argues its it sufficient that

Defendant pending at the time case was Court’s before the wcab disagree. I in Gusler. decision was released question important is whether the more I believe the defendant the time the raised the issue at prior any appeal release time was filed at 30, 1981. The decision on December of answer Court’s January question 27, is "no.” to this On a letter the defendant addressed wcab asking appeal if its dismissed whether would be payments in reliance reduced its the defendant upon an This letter contained Gusler. same claiming answer,” Gusler "amendment the time the Thus, it is that at obvious defense. defendant had raised the appeal, not raise its did in Gusler. minimum benefit levels addressed fail- Therefore, I would hold that defendant’s specifically § 355 issue does not raise the ure it to raise the defense at this date. entitle

iii Accordingly, I affirm the decision would Riley. However, I re- would Court of Juncaj Moore, affirm decisions verse its Compensation Ap- of the Workers’ the decisions peal Board.

Case Details

Case Name: Riley v. Northland Geriatric Center

Court Name: Michigan Supreme Court

Date Published: Nov 10, 1988

Citation: 433 N.W.2d 787

Docket Number: Docket Nos. 81129, 81325, 81689, (Calendar Nos. 3-5)

Court Abbreviation: Mich.