(dissenting). I respectfully dissent for the reason that I interpret the intent behind the res judicata rule, as it applies to worker’s disability benefits awards, to focus on changes in condition rather than changes in circumstance. Changes in circumstance are typically the manifestation of a change in condition, and where that is the case, the modification of an award may be in order. However, we are also faced with a problem concerning the finality of disability awards. To respect the need for finality, and in keeping with precedent concerning the modification of disability awards generally, I would hold that changes of factual circumstance justify the modification of an award only where they actually spring from a change in condition or where the Legislature specifically provides otherwise.
i
A majority of this Court has already held that the change in a law that affects the amount of disability benefits payable to a claimant permits the modification of an award despite the mandates of the res judicata doctrine. See Pike v City of Wyoming, 431 Mich 589; 433 NW2d 768 (1988) (a statute providing for a conclusive presumption of *386dependency was stricken as unconstitutional, which required reconsideration of the dependency status of the claimant’s spouse);1 Riley v Northland Geriatric Center (After Remand), 431 Mich 632; 433 NW2d 787 (1988) (the res judicata doctrine did not bar the modification of benefits awards on the basis of a change in the interpretation of the law concerning the yearly recalculation of maximum and minimum standardized benefits awards). Writing for the majority in Riley,2 Justice Griffin stated:
Res judicata is a judicially created doctrine which reflects appropriate concern for the use of judicial resources and the finality of litigation. However, it is not an inflexible doctrine, and its applicability depends in part upon the legal context in which a determination is made.
In a wide variety of circumstances, an employee’s future rate of worker’s compensation benefits is subject to change. Events in the future may operate to increase or decrease the amount of *387benefits to which he is entitled. For example, as a consequence of 1980 PA 357, certain employees injured between September 1, 1965, and. December 31, 1979, became entitled after January 1, 1982, to receive a supplemental benefit under § 352 to offset increases in the cost of living. Furthermore, if a disabled worker recovers, or later works at a less lucrative job, the amount of his compensation is subject to adjustment, and res judicata is not a bar. [Id. at 640. Emphasis in original.][3]
Justice Boyle, concurring in part and dissenting in part,, made an observation that is highly instructive.
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 [supra], illustrates, the continuing nature of these payments is relevant in only a few instances, such as a change of physical condition or specific exceptions in the act. These are well-established exceptions to the general rule of res judicata in workers’ compensation proceedings repeatedly recognized in the decisions of this Court. . . . Beyond these carefully crafted exceptions, there is no principled distinction between a final tort or contract judgment and a final decision of the [worker’s compensation] bureau — regardless *388of how many times this dubious principle may be repeated in dissenting or concurring opinions. . . . Certainly nothing on these facts justifies a departure from the doctrine of res judicata by an ad hoc ruling of this Court. [Id. at 653-654. Citations omitted.]
I agree with Justice Boyle that the res judicata doctrine should not be lightly regarded. Just as the end of factual inquiry is important in the context of contract and tort law, finality of judgments is also an important concern in the context of worker’s compensation law. However, I continue to believe that certain changes in the law justify the modification of disability benefits. Therefore, I would not apply the res judicata doctrine to certain changes in the law. First, there may be occasions where the failure to permit modification would have the effect of tolerating the residual effects of an unconstitutional provision. See Pike, supra.4 Second, a subsequent change in the law supports the notion that the parties and the courts would have been unable to consider the question for the reason that its underlying basis did not exist when the benefits award was ordered. Thus, modification would not run afoul of the notion that the res judicata bar applies to issues that could have been litigated, as well as to those that were actually litigated. See Gose v Monroe Auto Equipment Co, 409 Mich 147, 161; 294 NW2d 165 (1980) ("There was also no disagreement [in Hlady v Wolverine Bolt Co, 393 Mich 368; 224 NW2d 856 (1975)] that the law applied to those facts at such hearing if unchanged would also preclude subse*389quent redetermination” [emphasis in original]).5 Accordingly, I adhere to my belief that changes in a law affecting provisions in the Worker’s Disability Compensation Act may sustain the modification of disability awards under appropriate circumstances.
On the other hand, I am persuaded that the reassessment of a benefits award for changes of fact will often run afoul of the res judicata bar without adequate justification. For this reason, I would adopt Justice Boyle’s position in Riley regarding the application of the res judicata doctrine to findings of fact, i.e., that the modification of a benefits award for changes in fact may be made only where the change is one of a benefits recipient’s condition rather than one of mere circumstance. See White v Michigan Consolidated Gas Co, 352 Mich 201, 210; 89 NW2d 439 (1958) ("A petition to stop, to decrease or to increase compensation is always permissible in order to show circumstances concerning a claimant’s physical condition which have changed from the last date of hearing”). Moreover, I conclude that the intent behind the phrase "until 'further order of the Department,’ ” see majority, p 376, comports with this analysis. It must be remembered that the department6 had the benefit of decisions such as White when the award in this case was ordered.
n
I am also convinced that the rules governing the *390reviewability of worker’s compensation decisions lend support to this position. It has long been established that appellate courts may not reverse a worker’s compensation decision on a factual basis absent fraud. See Const 1963, art 6, § 28 and MCL 418.861; MSA 17.327(861). In contrast, appellate courts may reverse for the improper use or misapplication of the law. See, e.g., Eaton v Chrysler Corp (On Remand), 203 Mich App 477, 487; 513 NW2d 156 (1994). Therefore, the distinction between attempted modifications of disability awards based on changed facts and those based on changed law is an important one for purposes of appellate review. By the same token, I would extend this distinction to requests for modification of disability awards. While rulings on factual matters by the Worker’s Compensation Appellate Commission7 remain inviolate absent fraud, a different situation is presented with respect to questions of law or mixed questions of fact and law.
hi
In the case before us, there is no indication on the record that plaintiff required any additional services. Rather, her husband simply had more time to devote to her, as unnecessary as it may have been, following his retirement. As the Court of Appeals recognized, modification of the benefits award was inappropriate to the extent that its basis lay with the desires of plaintiff’s husband and not with changes in her condition. Furthermore, it is inappropriate to validate the notion that plaintiff, defendant, and the bureau were unable to conceive of the concept of inflation at the time the award was made. Thus, the failure to account for possible inflation constitutes a factual *391error that does not supersede an application of the res judicata doctrine. See n 1 and p 388.
Accordingly, I would affirm that part of the Court of Appeals decision on this point. However, I would remand to the worker’s compensation system for consideration of the question whether plaintiff experienced a change in condition that would justify the modification of her award. This issue was not reached for the reason that the question involved was treated as dispositive.
In his concurring opinion, Justice Brickley would require the application of the res judicata bar to all claims for a change in benefits except those based on circumstances that did not exist at the time of the initial award and only after a proper request and a factual determination of the merits. See id. at 607.
Justice Boyle, dissenting, asserted the necessity of finality in awards of worker’s disability benefits. Justice Boyle stated:
In Michigan, the scope of the [res judicata] doctrine is well defined. It applies not only to issues of fact and law which were actually litigated and decided, but also' to any issue which might have been litigated at that time. Curry [v Detroit, 394 Mich 327, 332; 231 NW2d 57 (1975)]; Gursten v Kenney, 375 Mich 330; 134 NW2d 764 (1965). See also Hackley [v Hackley, 426 Mich 582, 585; 395 NW2d 906 (1986)]. Therefore, if during the adjudication of a dispute a pertinent issue of law or fact is raised and decided, or properly should have been raised, res judicata will bar the relitigation of that issue in a subsequent action. [Id. at 612-613.]
Justice Brickley concurred in the result while reasserting the "hybrid” res judicata concept he introduced in his concurrence in Pike. See n 1.
An important aspect to note about this quotation is that the exceptions mentioned include provisions in 1980 PA 357, changes in condition such as recovery from a disability, as well as modifications permitted by MCL 418.301(5); MSA 17.237(301X5). Examples include the termination of benefits for refusal of the employee to accept a bona fide offer of reasonable employment, and the increase or decrease in the rate of compensation where the employee is engaged in subsequent employment, the incremental change being based on the relation between the wages earned at the new employment and the computed average weekly wage contained in a benefits award.
Indeed, Pike illustrates the propriety of retroactive application in that the law involved was stricken for unconstitutionality. Failure to recalculate benefits despite the obvious merits of the res judicata doctrine would have had the effect of countenancing residual, discriminatory effects of an unconstitutional law. Stated another way, awards of disability benefits that are based on bad law are bad judgments to the extent of the awards’ reliance on bad law.
See also n 1. In regard to this point, it is not my intention to introduce a foreseeability element into a request for modification of a benefits award based on a change in the law. Where the law changes after an award is ordered, and that benefits award is based in whole or in part on that aspect of the law that has subsequently changed, modification is permitted.
The Worker’s Compensation Department was the predecessor of the Worker’s Compensation Appeal Board, which in turn was the predecessor of the Worker’s Compensation Appellate Commission.
See n 6.