Riley v. Northland Geriatric Center

Archer, J.

(dissenting). The majority resolves the conflict present in the Court of Appeals application of this Court’s decision in Gusler v Fairview Tubular Products, 412 Mich 270; 315 NW2d 388 (1981), by holding that (1) the doctrine of res judicata does not bar relitigation of the plaintiffs minimum weekly benefit rate under § 351(1), and (2) our decision in Gusler is retroactively applicable to those parties receiving minimum rate benefits at the time of the decision’s release irrespective of their date of injury.

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

*658I

The doctrine of res judicata bars relitigation of all matters factual and legal, which were either adjudicated or adjudicable at the time of trial:

The doctrine of res judicata operates to prevent the relitigation of facts and law between the same parties or their privies. The plea of res judicata applies to points previously litigated and decided as well as to points " 'which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’ ” [Socialist Workers Party v Secretary of State, 412 Mich 571, 583-584; 317 NW2d 1 (1982). Citations omitted.]

The lead opinion argues, and I agree, that the doctrine of res judicata is not to be mechanistically applied. However, this Court should be hesitant in deviating from the doctrine where it would serve to reward dilatory parties.

I find the instant case indistinguishable from our decision in Hlady v Wolverine Bolt Co, 393 Mich 368; 224 NW2d 856 (1975). In 1947, Hlady was awarded specific loss benefits for the amputation of four fingers under the predecessor of § 361 of the wdca, MCL 418.361; MSA 17.237(361). Once the specific loss benefits expired, existing precedent disallowed continuing general disability benefits premised upon a condition deemed "normally resultant” from an amputation. This Court and the wcab denied plaintiff continuing benefits, finding her postamputation condition did not exceed the "normally resultant” standard. Hlady v Wolverine Bolt Co, 325 Mich 23; 37 NW2d 576 (1949). However, in Van Dorpel v Haven-Busch Co, 350 Mich 135; 85 NW2d 97 (1957), an evenly divided court found plaintiff’s class of recipients were enti*659tied to continuing benefits. Nearly three decades after her original award, Hlady again appealed, seeking continuing general disability benefits, apparently in light of Van Dorpel’s challenge to the "normally resultant” standard. Although the Court adopted the Van Dorpel position, we nonetheless denied plaintiff’s claim upon res judicata grounds:

Mary Hlady’s physical condition has not changed since her 1945 injury. The only change has been in the law applied to cases of this nature. However, it has long been the law of this state, starting with the leading case of Jacobson v Miller, 41 Mich 90; 1 NW 1013 (1879), that the doctrine of res judicata applies not only to facts previously litigated, but also to points of law which were necessarily adjudicated in determining and deciding the subject matter of the litigation.
Plaintiff may not concede an issue, necessarily determinative of and included in the judgment of this Court, and then, after another has successfully raised the issue she did not wish to contest, ask the Court again for relief. The doctrine of res judicata bars this from happening. Mary Hlady could have as easily raised this issue as Peter Van Dorpel. It was, in fact, incumbent upon her to do so if she wished to avail herself of that interpretation. [393 Mich 376, 380.]

As in Hlady two of the three instant defendants seek to evade res judicata so as to revisit the same case and merely apply new law upon an adjudicated issue that was never reserved for appeal. On November 20, 1979, this Court specifically granted leave to appeal upon the issue whether § 355 applied to the minimum as well as maximum weekly rates for total disability as available under § 351 of the wdca:

*660The parties are directed to include among the issues to be briefed whether the cost-of-living increases in workers’ disability compensation benefits, provided for in MCL 418.355; MSA 17.237(355), apply to the minimum as well as the maximum weekly rates for total disability, as set forth in MCL 418.351; MSA 17.237(351)? [Gusler v Fairview Tubular Products, 407 Mich 926 (1979).]

Clearly, our published and issue-specific grant of leave to appeal placed the parties on notice as to the viability of challenging § 355’s application to minimum-rate benefits. In Riley, the Court’s order in Gusler was issued prior to the plaintiffs original hearing before the hearing referee in 1981,1 although the defendant neither raised the issue before the hearing referee nor appealed. In Juncaj, although the Court’s order was not available at the time of the original hearing,2 the defendant also failed to appeal.

This Court should be hesitant to extend the defendants an additional opportunity to raise this defense. It is not incumbent upon this Court to reward any other party’s inaction. Accord Pike v City of Wyoming, 431 Mich 589; 433 NW2d 768 (1988) (Boyle, J., dissenting); Hackley v Hackley, 426 Mich 582; 395 NW2d 906 (1986).

A compensation award» represents " 'an adjudication as to the condition of the injured workman at the time it is entered.’ ” Theodore v Packing Materials, Inc, 396 Mich 152, 158; 240 NW2d 255 (1976), citing 58 Am Jur [Workmen’s Compensation, § 508]. Disability benefits "are a form of income maintenance for persons whose wage-earning capacity has been suspended or terminated. A claimant’s entitlement to such benefits depends on the *661circumstances at the time of application and payment.” Hlady, supra, 391 (Levin, J., concurring).
The requirement that he present all of his available claims in a single proceeding is consistent with this purpose of adjudicating the worker’s needs. The remedial character of the legislation, if affected at all by this rubric, would scarcely be enhanced by a construction which would authorize piecemeal compensation for an injury. [Gose v Monroe Auto Equipment Co, 409 Mich 147, 161-162; 294 NW2d 165 (1980). Emphasis added.]

I find our rationale in Gose equally calls for employers to timely submit all available defenses. Therefore, I would hold that the plaintiffs should not be subjected to the relitigation of their minimum benefit rates and should enjoy the finality res judicata affords.

ii

However, in Moore, I agree with the defendants that the doctrine of res judicata is inapplicable. In Moore, the defendant had an appeal pending before the wcab at the time that our decision in Gusler was released. Because this appeal was timely filed, there is no question that there was not a final decision upon plaintiff’s benefit award. Nonetheless, I find that the defendant’s failure to state the §355 issue with specificity, effectively waived its entitlement to the Gusler defense.

In this regard, I would adopt the position advocated by the Court of Appeals in Riley v Northland Geriatric Center (On Remand), 160 Mich App 507, 513; 408 NW2d 489 (1987), which states, in pertinent part:

We believe that when our opinion today is read with the above-quoted language of Gusler, the net effect is that Gusler will apply to all cases com*662menced after December 30, 1981, the date that opinion was issued, and to those cases pending in the Bureau of Workers’ Disability Compensation, the wcab, or an appellate court on December 30, 1981, in which the issue of § 355 reductions was raised.

Defendant argues that it was sufficient that its case was pending before the wcab at the time the Court’s decision was released in Gusler. I disagree. I believe the more important question is whether the defendant raised the issue at the time the appeal was filed or at any time prior to the release of the Court’s decision on December 30, 1981. The answer to this question is "no.” On January 27, 1982, the defendant addressed a letter to the wcab asking whether its appeal would be dismissed if the defendant reduced its payments in reliance upon Gusler. This same letter contained an "amendment to answer,” claiming Gusler as a defense. Thus, it is obvious that at the time the defendant had raised its appeal, it did not raise the minimum benefit levels addressed in Gusler. Therefore, I would hold that the defendant’s failure to specifically raise the § 355 issue does not entitle it to raise the defense at this date.

iii

Accordingly, I would affirm the decision of the Court of Appeals in Riley. However, I would reverse its decisions in Juncaj and Moore, and affirm the decisions of the Workers’ Compensation Appeal Board.

The opinion of the hearing referee was released on October 6, 1981.

The decision of the hearing referee was released on July 19,1978.