Askew v. Ann Arbor Public Schools, Docket No. 78996
| Decision Date | 12 December 1988 |
| Docket Number | Docket No. 78996 |
| Citation | 431 Mich. 714,433 N.W.2d 800 |
| Parties | Jessie ASKEW, Plaintiff-Appellant, v. ANN ARBOR PUBLIC SCHOOLS, Defendant-Appellee. 431 Mich. 714, 433 N.W.2d 800, 51 Ed. Law Rep. 267 |
| Court | Michigan Supreme Court |
The question presented is whether a worker who has obtained an award of workers' compensation benefits that is pending on appeal to the Workers' Compensation Appeal Board must seek to present to the WCAB, during its review of the earlier award, evidence of a change in physical condition, which occurred after the award, that the worker claims supports a further and separate claim of benefits arising from the same injury in order to avoid the bar of res judicata and preserve his right to a hearing on the further and separate claim. We hold that he is not required to seek to present the evidence during the appeal.
The Workers' Compensation Appeal Board found, in October, 1974, that Jessie Askew was injured on February 19, 1971, and affirmed a referee's November, 1972, decision awarding her benefits for a closed period from February 20, 1971, to July 26, 1971.
Subsequently, in a separate proceeding, the WCAB found 1 that there had been a change in Askew's physical condition which occurred after the November, 1972, hearing and award, but before the hearing and decision by the WCAB on review of that award. The WCAB found in that second proceeding that Askew was entitled to continuing benefits from a date in 1973, 2 on the basis of testimony of medical experts who made a diagnosis in 1973 (i.e., before the WCAB's 1974 decision in the first proceeding) of problems arising from the 1971 injury that were not evident in 1972 when the hearing before the referee that resulted in the earlier award was held. 3
An order of a referee can be and is dispositive 4 unless an appeal is taken to the WCAB. Here, Askew took an appeal in the first proceeding to the WCAB. It was her claim, rejected in 1974 by the WCAB in that proceeding, that the record made before the referee at the first hearing in November, 1972, supported an award of benefits beyond the five-month closed period for which they were awarded.
The WCAB found in the second proceeding that there was evidence of a change in physical condition commencing in 1973. That evidence, accordingly, could not have been made part of the record at the time of the first hearing in November, 1972. Askew's employer, the Ann Arbor Public Schools, contends that because the additional evidence was available in 1973--while the referee's 1972 decision was still pending on appeal to the WCAB--Askew should have sought to present the additional evidence during the WCAB review in the first proceeding before the 1974 WCAB decision in that proceeding was made.
The workers' compensation act provided that if a claim for review by the WCAB of a referee's decision is filed, the WCAB "may hear the parties, together with such additional evidence as it in its discretion may allow them to submit...." 5
The Court of Appeals agreed with the Ann Arbor Public Schools that Askew should have sought to present the evidence that she was disabled from a date in 1973 to the WCAB during its review in the first proceeding and held that Askew was precluded by the doctrine of res judicata from obtaining continuing benefits. The Court of Appeals observed that this Court in Gose v. Monroe Auto Equip. Co., 409 Mich. 147, 160-161, 294 N.W.2d 165 (1980), had said in effect "that the doctrine of res judicata bars a claim which a plaintiff in a worker's compensation case could have brought, but did not." 6
Ann Arbor Public Schools argues that when an appeal is taken from a referee's decision to the WCAB, the decision of the WCAB and not the decision of the referee is the "award" within the meaning of this Court's repetition in Gose of its earlier statement in Hlady v. Wolverine Bolt Co., 393 Mich. 368, 375-376, 224 N.W.2d 856 (1975), " 'that a compensation award is an adjudication as to the condition of the injured workman at the time it is entered, and conclusive of all matters adjudicable at that time.' "
In neither Gose nor Hlady, however, did this Court focus on the question now presented, whether the "time" of the award for res judicata purposes is the date of the decision by the referee or the date of the decision by the WCAB where an intervening change in physical condition may, as recognized in the passage from Hlady quoted in Gose, 7 justify a further award of benefits or the stopping of payment on an award previously entered.
This Court's decisions in Gose and Hlady that the doctrine of res judicata bars claims actually litigated and also those arising out of the same transaction that could have been, but were not, brought does not address the question whether a worker who has obtained a referee's award that is pending on appeal to the WCAB must seek to present, during the WCAB's review of the earlier award, evidence in support of a further and separate claim for benefits on the basis of a change in physical condition that occurred after the referee's award arising from the same injury to avoid the bar of res judicata and preserve his right to a hearing on the further and separate claim.
Neither general res judicata doctrine 8 nor policy requires one result in preference to the other. Requiring a worker claiming further benefits or an employer claiming that payment of benefits should be stopped to seek to present to the WCAB evidence of a change in physical condition that occurs during the pendency of an appeal thereto would not be unfair as long as sufficient time remained to do so before the WCAB ruled and the request to present the evidence would not unduly delay the ultimate decision. In the instant case, however, the WCAB indicated that the worker or employer are not required to seek to present such evidence on appeal.
The WCAB declared in the instant case that, for purposes of the application of the doctrine of res judicata, the date of the first hearing and decision before the referee, November, 1972--and not the date of the hearing before or the decision by the WCAB--was determinative. The WCAB said that the November, 1972, decision was res judicata "as to plaintiff's physical condition through the date of hearing." (Emphasis in original.) 9 That declaration of the WCAB may reflect an assessment of the frequency with which petitions to present additional evidence are granted by the WCAB, the likelihood of delay if such petitions are routinely granted, or the systemic or substantive problems that might develop if the determinative date is the date of decision by the WCAB (or the date of a hearing before the WCAB or a date preceding the hearing).
It is clear from the language of the statute ("as it in its discretion may allow") 10 and well established that had Askew sought to introduce the additional evidence, the WCAB would not have been obliged to hear it. 11 Adoption of the rule advocated by Ann Arbor Public Schools would not, unless the WCAB were to routinely grant petitions to submit additional evidence, result in the economies of a single adjudication visualized by the Ann Arbor Public Schools.
If we were to adopt the rule advocated by the Ann Arbor Public Schools, it would have operative effect only in cases where the WCAB chose to grant a petition to submit additional evidence and in cases where no such petition was filed. In those cases where a petition was filed and the WCAB declined to receive additional evidence, the worker would clearly be entitled to a hearing before a referee regarding a further and separate claim to benefits.
Adoption of a rule making the date of hearing or award by the WCAB determinative might produce a mountain of additional "protective" petitions that would be routinely denied by the WCAB and become a source of considerable litigation in those cases where a petition was not filed on the question whether a protective petition was required to be filed.
1985 P.A. 103 provides a new administrative procedure for adjudicating contested claims for workers' compensation. Applications for hearing filed after March 31, 1986, are to be heard by a workers' compensation magistrate rather than a referee. An appeal from the magistrate's decision is to be taken to the newly established workers' compensation appellate commission in lieu of the WCAB. Act 103 provides for the phasing out of the functions of the referee and the WCAB. The WCAB reviews a decision of a referee de novo. 12 The findings of fact of a magistrate are to be considered conclusive by the commission if supported by competent, material, and substantial evidence on the whole record. 13
Under the new procedure established by Act 103, authorization for the taking of additional evidence on review to establish a change in physical condition has been eliminated. The appellate commission "may remand a matter to a worker's compensation magistrate for purposes of supplying a complete record if it is determined that the record is insufficient for purposes of review." 14 The determinative date for res judicata purposes under the new procedure will be the hearing before the magistrate. The Legislature has thus enacted an administrative system for adjudicating contested claims for workers' compensation that clearly does not contemplate the taking of additional evidence on appeal where there has been a change in physical condition. If we were to adopt the new rule advocated by the Ann Arbor Public Schools and reverse the...
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