Riley v. Northland Geriatric Center

Brickley, J.

(concurring).

A. INTRODUCTION

Concurring in Pike v City of Wyoming, 431 Mich 589; 433 NW2d 768 (1988), I expressed the view that the traditional concept of res judicata must be tailored to meet the special needs of income-main*650tenance systems such as workers’ compensation. Specifically, I proposed a "hybrid” res judicata concept that should be applied when the law governing such systems is changed by judicial decision: The doctrine of res judicata bars relitigation as to "all payments and benefits awarded or denied pursuant to an earlier determination, but only until such time as a subsequent petition based on changed circumstances that would not have been present at the previous litigation is filed and the issues presented are resolved.” Id., p 607.

B. RILEY AND JUNCAJ

The application of this principle in Riley and Juncaj is straightforward. In both cases, claimants were awarded and paid minimum benefits in accordance with Jolliff v American Advertising Distributors, Inc, 49 Mich App 1; 211 NW2d 260 (1973). Subsequently, Jolliff was overruled by Gusler v Fairview Tubular Products, 412 Mich 270; 315 NW2d 388 (1981), and new proceedings were instituted in order to determine whether future benefits should be reduced accordingly. Referees in both cases approved the reduction. Because I believe that the doctrine of res judicata is not a bar under such circumstances, I agree with the lead opinion’s conclusion that the referees ruled correctly.

Gusler itself supports this result. In the first of two paragraphs addressing the application of Gusler to other cases, we noted that Gusler was to be treated as a new rule of law. Id., 298. We cited three cases as general authority for the treatment of new rules in other contexts. Whetro v Awkerman, 383 Mich 235; 174 NW2d 783 (1970), Parker v Port Huron Hosp, 361 Mich 1; 105 NW2d 1 *651(1960), and Bricker v Green, 313 Mich 218; 21 NW2d 105 (1946). Of these decisions, Parker and Bricker illustrate the application of new rules in general civil litigation, while Whetro, the only workers’ compensation case of the three, is illustrative of the prospective effect to be accorded changes which address eligibility or qualification for benefits.

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

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

c. MOORE

Because Moore was still pending before the wcab when Gusler was decided, there was no final determination which would trigger a res judicata *652analysis.1 Justice Archer would hold that the employer, by waiting until after Gusler had been decided to raise the issue before the wcab, waived its right to contest the future payment of Jolliff minimum benefits. I agree, however, with the conclusion reached in Justice Griffin’s opinion. Additional evidence submitted by the parties may be considered by the wcab.2 While the wcab is not required to consider the new material, where, as here, it exercises its discretion to do so, the issue has been adequately preserved.3

Furthermore, from the perspective of administrative economy, I believe it would be unwise either to require parties to burden administrative decisionmakers with a claim or defense that has not yet been recognized, or to prevent the wcab from immediately considering a recent judicial decision which by its terms is to be accorded immediate effect.

D. CONCLUSION

For the foregoing reasons, I concur in the result reached in Justice Griffin’s opinion. In addition, I conclude that Juncaj should be remanded to the wcab in order for it to determine (1) whether the unilateral reduction of benefits by the employer was improper, and, if so, (2) the extent to which the claimant should recover benefits improperly withheld._

MCL 418.851; MSA 17.237(851).

MCL 418.859; MSA 17.237(859).

Even if an intervening judicial decision may not technically be "evidence” under § 859, there is no reason to draw a distinction between such a decision and other types of evidence, particularly in light of the informal nature of workers’ compensation proceedings. Moreover, even courts, bound by the Michigan Rules of Evidence, may take judicial notice of the common law. MRE 202(a). In workers’ compensation proceedings, strict adherence to the Michigan Rules of Evidence is not required. MCL 418.841(6); MSA 17.237(841)(6).