Moore v. Detroit Bd. of Educ., Docket No. 99822

• Decision Date: 22 December 1987
• Docket Number: Docket No. 99822
• Citation: 163 Mich.App. 130,414 N.W.2d 160
• Parties: , 42 Ed. Law Rep. 932 Katherine MOORE, Plaintiff-Appellee, v. DETROIT BOARD OF EDUCATION, Defendant-Appellant. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 160

414 N.W.2d 160

163 Mich.App. 130, 42 Ed. Law Rep. 932

Katherine MOORE, Plaintiff-Appellee, v. DETROIT BOARD OF EDUCATION, Defendant-Appellant. (On Remand)

Docket No. 99822.

Court of Appeals of Michigan.

Submitted April 10, 1987.

Decided Sept. 10, 1987.

Released for Publication Oct. 28, 1987.

Leave to Appeal Granted Dec. 22, 1987.

Bockoff & Zamler, P.C. (by Anne K. Flaherty and Daryl Royal), Southfield, for plaintiff-appellee.

Law Offices of Walter W. Gallaher, P.C. (by Walter W. Gallaher), and Grahame G. Capp, of counsel, Sterling Heights, for defendant-appellant.

Before CYNAR, P.J., and WAHLS and HOOD, JJ.

PER CURIAM.

This case is again before us on remand from the Supreme Court to consider whether Gusler v. Fairview Tubular Products, 412 Mich. 270, 315 N.W.2d 388 (1981), should be given retroactive effect in light of Riley v. Northland Geriatric Center, 425 Mich. 668, 671, 391 N.W.2d 331 (1986). 428 Mich. 874, 402 N.W.2d 471 (1987).

Plaintiff was employed by defendant as a teacher's aide. Plaintiff was injured on May 30, 1978, while in defendant's employ. Her injury occurred when she fell down a flight of stairs. She complained of back and left leg pain and was immediately transported to a hospital. The final diagnosis was a "displaced fracture of tip of sacrum and coccyx."

Plaintiff received workers' compensation benefits from May, 1978, until October, 1978. Benefits were reinstated in January, 1979, until October 4, 1979. On February 9, 1981, a hearing referee found that plaintiff was entitled to continuing compensation benefits. Defendant appealed and on July 10, 1985, the Workers' Compensation Appeal Board determined that plaintiff was disabled and that she was entitled to benefits. The WCAB also indicated that it was reluctantly applying the minimum rate set forth in Jolliff v. American Advertising Distributors, Inc., 49 Mich.App. 1, 211 N.W.2d 260 (1973), lv. den. 391 Mich. 780 (1974), to the case.

We are in accord with Justice Levin's separate opinion in Riley that Gusler would apply to cases decided before December 30, 1981 (the date Gusler was decided) as to payments made after that date. The Gusler opinion itself sets out the application of its holding.

"Although our holding is based on what we perceive to have been the intent of the Legislature at the time of enactment of the provisions discussed, in practical effect, given the contrary interpretations of the law by the Director of the Bureau of Workers' Compensation and the bureau's subdivisions, the Workers' Compensation Appeal Board and its hearing referees, and the Court of Appeals, today's holding is not unlike the announcement of a new rule of law. Its application therefore should be treated accordingly. See Whetro v Awkerman, 383 Mich 235; 174 NW2d 783 (1970); Parker v Port Huron Hospital, 361 Mich 1; 105 NW2d 1 (1960); Bricker v Green, 313 Mich 218; 21 NW2d 105 (1946).

"In the interest of fairness we do not believe our holding should affect any disability compensation payments already made. Consequently, no recipient will be obligated to repay sums already received by reason of the erroneous computation formula we have nullified today. However, any benefits due and not yet paid or to be awarded after the date of this opinion shall be in accord with this ruling." Gusler, supra, 412 Mich. at p. 298, 315 N.W.2d 388.

The plain...