(concurring in part and dissenting in part). I concur in the majority’s holding in Moore, but do so for different reasons. In my view, Justice Archer has correctly observed that there was no final judgment in Moore and therefore the doctrine of res judicata is inapplicable. See 1 Restatement Judgments, 2d, § 24(1), p 196; Cohen v Home Life Ins Co, 273 Mich 469, 473; 263 NW 857 (1935). However, unlike Justice Archer, I am not persuaded that the defendant waived the challenge regarding minimum benefits by failing to raise it before the hearing referee. It appears that the defendant raised and preserved the benefit rate issue in these proceedings or the proceedings below1 and that Gusler v Fairview Tubular Products, 412 Mich 270; 315 NW2d 388 (1981), in terms applies to payments made after December 30, 1981. However, it appears that the plaintiff herself failed to raise and preserve the issue of defendant’s waiver. I would therefore affirm the decision of the Court of Appeals in Moore.
On the other hand, I agree with both Justice Archer’s reasoning and holding in Riley and Juncaj. I write separately only to add a few of my own observations as to the course of the majority opinion in these cases.
The majority asserts that the basis of its holding regarding the effect of res judicata in these cases is the continuing nature of an award of workers’ compensation disability, or wage loss, benefits. The majority contrasts workers’ compensation benefits in this regard with tort or contract damages. In my view, however, as proper analysis of the dependency provision in Pike v City of Wyoming, 431 Mich 589; 433 NW2d 768 (1988), illustrates, the continuing nature of these payments is relevant in *654only a few instances, such as a change of physical condition2 or specific exceptions in the act.3 These are well-established exceptions to the general rule of res judicata in workers’ compensation proceedings repeatedly recognized in the decisions of this Court. See, e.g., Theodore v Packing Materials, Inc, 396 Mich 152; 240 NW2d 255 (1976); Hlady v Wolverine Bolt Co, 393 Mich 368; 224 NW2d 856 (1975). Beyond these carefully crafted exceptions, there is no principled distinction between a final tort or contract judgment and a final decision of the bureau4— regardless of how many times this dubious principle may be repeated in dissenting or concurring opinions. The nominal distinction upon which the majority has seized is simply the vehicle for this majority’s voiding of the accrued and adjudged rights of these workers. Certainly nothing on these facts justifies a departure from the doctrine of res judicata by an ad hoc ruling of this Court.
The majority relies for its result on the concurrence in Hlady, supra. In addition to the fact that the majority fails to acknowledge that its reliance on Justice Levin’s view of res judicata, sub silentio, overrules holdings in Hlady and Gose v Monroe Auto Equipment Co, 409 Mich 147; 294 NW2d 165 (1980), the majority focuses on Justice Levin’s view that an intervening change of law eliminates the bar of res judicata as to "a claim for continuing disability benefits,” Hlady, supra, p 385 (emphasis in the original). Because the Legislature has said that changes in facts may in certain circumstances permit a change in benefits, the majority *655concludes that this Court as a matter of its own policy determination can permit relitigation where the facts have been finally adjudicated and the new litigation is based on a subsequent change in the law. From this incorrect premise the majority reaches the final result that Gusler "implicitly stated” that res judicata would not preclude the reduction of benefits in finally adjudicated unappealed litigation, cases, it must again be emphasized, that do not involve any change in facts. As this Court held in Hlady, supra, p 380, "res judicata bars this from happening.”
I cannot agree that the language in Gusler regarding the prospective application of the decision was intended to implicitly overrule the holding in Hlady that res judicata precludes a collateral attack on a claim for continuing benefits with a later change in law. Hlady is not even cited in Gusler, and two members of the Hlady majority joined the Gusler result. Indeed, were I to conclude that the broad dictum of the "penultimate” paragraph of Gusler could be so construed, Gusler would be precedent of the most questionable sort.5
For the reasons stated in my dissent in Pike, supra, I cannot accept the majority’s conclusion that collateral attacks upon the amount of compensation, as opposed to eligibility, are always permissible. There is neither a theoretical basis for this distinction nor a practical limit to its application. In truth, the majority’s conclusion in this case, as well as in the concurring opinion of Justice Brickley6 and the concurring opinion of Jus*656tice Levin in Hlady,7 turns the matter of collateral attack on an award of continuing benefits into a question of policy to be decided on an ad hoc basis by four members of this Court. The bench and bar are therefore without guidance as to how this exception will be applied. This case and Pike suggest that the refinements of this rule will emerge in the process of finding either that any change in governing law permits reopening of a final award or that some collateral attacks are more fair than others. In either event, the ultimate result is an unwarranted alteration of the doctrine of res judicata in workers’ compensation proceedings.
This is nowhere more apparent than in the majority’s quotation from Justice Levin in Riley:
Were this Court to give preclusive effect to a prior adjudication that was based on Jolliff [v American Advertising Distributors, Inc, 49 Mich App 1; 211 NW2d 260 (1973)] as to payments of workers’ compensation benefits after Gusler it would perpetuate, in the name of a judicial doctrine, a judicial error in construing a statute that thwarts legislative intent, [Riley v Northland Geriatric Center, 425 Mich 668, 690; 391 NW2d 331 (1986).]
The same could be said about any application of *657the doctrine of res judicata involving a prior construction of the Workers’ Disability Compensation Act. I would respond that ignoring the doctrine of res judicata results in the summary alteration of benefits for many litigants who have never been given an opportunity to address the issue in any court or administrative proceedings. It is not erroneous to apply the doctrine of res judicata in this instance. To the contrary, an application of this doctrine to preclude a reopening of this litigation is both technically correct and manifestly just.
I therefore dissent in Riley and Juncaj.
Cavanagh, J., concurred with Boyle, J.Thompson v Continental Motors Corp, 320 Mich 219, 226; 30 NW2d 844 (1948).
See, e.g., Hebert v Ford Motor Co, 285 Mich 607; 281 NW 374 (1938).
See MCL 418.353; MSA 17.237(353).
Indeed, a final order of the bureau is enforceable as a judgment in circuit court. See MCL 418.863; MSA 17.237(863).
I, of course, take no position in the context of this case, on the substantive ruling of Gusler regarding adjusted minimum benefits.
While Justice Bkickley nominally endorses a "hybrid” rule of res judicata in workers’ compensation proceedings, finality exists only until " 'a subsequent petition based on changed circumstances that would not have been present at the previous litigation is filed
In Hlady, supra, p 387, Justice Levin stated:
The law can be changed by legislative enactment or court decision. When the Legislature amends a statute, its applicability to a case previously adjudicated is not analyzed in terms of res judicata. The issue then is one of statutory construction: did the Legislature intend the amendment to have retroactive as well as prospective application? Where the change is effected by court decision the analysis should be the same, whether as a matter of policy the new rule of law should apply retroactively as well as prospectively.