Paschke v. Retool Industries

Brickley, J.

(concurring). While I agree with the majority’s conclusion that plaintiff’s total disability claim is not barred by judicial estoppel, and that the Court of Appeals erred by holding otherwise, I do not subscribe to the rationale offered for this resolution and, accordingly, am compelled to write separately. I also write separately to expressly align myself with the dissenting position for a remand to the Court of Appeals so that it may ultimately address the merits of plaintiff’s total disability claim, and specifically the issue whether the wcab applied the correct legal standard.

I

It is well established that "equity follows the law,” and that where legislation provides an adequate legal remedy, the judiciary may not create additional relief by invoking equitable doctrines.1 The Legislature has devised a specific remedy — i.e., an offset provision — for the situation presented here. MCL 418.358; MSA 17.237(358). The availability of this legal remedy absolutely precludes the application of equitable principles, and, accordingly, the Court of Appeals clearly erred by invoking, sua sponte, the equitable doctrine of judicial estoppel in this case.

I believe that the majority fails to adequately *521capitalize upon this preclusion argument. While some discussion of MCL 418.358; MSA 17.237(358) is offered, see ante at 514, this solitary paragraph does not discuss the statutory provision as creating a legal remedy, but instead focuses upon the provision as "suggesting] that the Legislature contemplated the simultaneous recovery of worker’s compensation and unemployment benefits.” Id. This failure to focus upon the remedial nature of MCL 418.358; MSA 17.237(358), combined with an in-depth discussion of why judicial estoppel does not deny worker’s compensation benefits in this case,2 sends an erroneous message that judicial estoppel is somehow relevant to the issue presented here. It is not — the Legislature has spoken.

II

The majority ultimately remands this case to the Court of Appeals for consideration of those issues "previously raised by the parties but not addressed by that Court.” Ante at 520. I agree with this remand, but write separately to reiterate an important point made by the dissent: namely, that on remand the Court of Appeals must determine "whether the wcab applied the correct legal standard — i.e., whether being disabled from one’s previous particular employment suffices to establish 'disability’ in the employee’s 'general field of employment’ pursuant to § 301(4).” Post at 534, n 6 (Griffin, J., dissenting).

Defendant’s appeal from the wcab decision specifically challenged the board’s finding of a total disability. While at this juncture I cast no opinion regarding the appropriateness or accuracy of the wcab’s total disability conclusion, it seems clear that this important issue, like most issues properly *522raised on an appeal, deserves the full attention of the Court of Appeals on remand.

For these reasons, I concur in the result reached by the majority.

Hoffman v Burkhammer, 373 Mich 187; 128 NW2d 503 (1964); Schantz v Ruehs, 348 Mich 680; 83 NW2d 587 (1957); Ramirez v Bureau of State Lottery, 186 Mich App 275; 463 NW2d 245 (1990).

See ante at 513-515.