Riley v. Northland Geriatric Center

• Decision Date: 28 February 1985
• Docket Number: Docket No. 75937
• Citation: 362 N.W.2d 894,140 Mich.App. 72
• Parties: Geneva RILEY, Plaintiff-Appellee, v. NORTHLAND GERIATRIC CENTER, and Michigan Mutual Insurance Company, Defendants-Appellants. 140 Mich.App. 72, 362 N.W.2d 894
• Court: Court of Appeal of Michigan — District of US

Page 894

362 N.W.2d 894

Geneva RILEY, Plaintiff-Appellee, v. NORTHLAND GERIATRIC CENTER, and Michigan Mutual Insurance

Company, Defendants-Appellants.

Docket No. 75937.

140 Mich.App. 72, 362 N.W.2d 894

Court of Appeals of Michigan.

Submitted Aug. 22, 1984.

Decided Jan. 2, 1985.

Released for Publication Feb. 28, 1985.

[140 MICHAPP 73] Bockoff & Zamler, P.C. by Daryl Royal, Southfield, for plaintiff-appellee.

Lacey & Jones by Gerald M. Marcinkoski, Detroit, for defendants-appellants.

[140 MICHAPP 74] Before SHEPHERD, P.J., and MacKENZIE and NICOLICH ^*, JJ.

MacKENZIE, Judge.

On July 15, 1980, plaintiff filed a petition for workers' compensation benefits as a result of back injuries sustained while employed by defendant Northland Geriatric Center. In an opinion dated October 6, 1981, a hearing officer for the Bureau of Workers' Disability Compensation determined that plaintiff was entitled to receive compensation benefits as her injury arose out of and in the course of her employment.

Pursuant to this Court's decision in Jolliff v. American Advertising Distributors, Inc, 49 Mich.App. 1, 211 N.W.2d 260 (1973), which held that the minimum benefit rates established by MCL Sec. 418.351(1); MSA Sec. 17.237(351)(1) were to be adjusted annually with reference to the state average weekly wage in accordance with MCL Sec. 418.355; MSA Sec. 17.237(355), the hearing officer ordered that plaintiff be paid $119 per week based on her average weekly wage of $130.80 with no dependents. As neither party appealed this decision, it became final on October 21, 1981.

Approximately six weeks later, on December 30, 1981, the Michigan Supreme Court decided Gusler v. Fairview Tubular Products, 412 Mich. 270, 315 N.W.2d 388 (1981). The Gusler opinion specifically overruled Jolliff, supra, by holding that the annual adjustment provision in MCL Sec. 418.355; MSA Sec. 17.237(355) applied only to maximum benefit levels, not minimum levels. Plaintiff in that case timely filed a motion for rehearing on January 19, 1982, which was granted by the Supreme Court August 16, 1982. Before any action was taken on the rehearing, however, the Court dismissed the [140 MICHAPP 75] appeal on March 15, 1983, pursuant to a stipulation of the parties. Gusler v. Fairview Tubular Products, 414 Mich. 1102, 323 N.W.2d 909 (1982).

On January 12, 1983, defendants here filed a petition for determination of rights urging that, in conformity with the holding in Gusler, supra, plaintiff's weekly benefits should be reduced to $87.20 ( 2/3 times $130.80). See MCL Sec. 418.351; MSA Sec. 17.237(351) prior to its amendment by 1980 PA 357, effective January 1, 1982. A hearing officer agreed and on May 26, 1983, ordered that further payments to plaintiff be reduced accordingly. Plaintiff was not obligated, however, to repay any sums already received.

Plaintiff appealed this reduction to the Workers' Compensation Appeal Board, which, in an opinion dated December 8, 1983, reversed the hearing officer and reinstated plaintiff's original award. The Board further ordered that the interest payable on plaintiff's award be raised from 5 percent to 12 percent per annum. This Court granted defendants' application for leave to appeal.

We must first decide whether Gusler, supra, is binding precedent on this Court in light of the subsequent grant of rehearing followed by dismissal of the appeal pursuant to stipulation of the parties. If binding precedent, this Court is bound by stare decisis to follow its holding that minimum rates are not adjustable under Sec. 355. Negri v. Slotkin, 397 Mich. 105, 244 N.W.2d 98 (1976); Schwartz v. City of Flint (After Remand), 120 Mich.App. 449, 462, 329 N.W.2d 26 (1982).

We find GCR 1963, 866 to be dispositive of this situation. GCR 1963, 866.3(a) provides as follows:

"Entry. The clerk shall enter an order or judgment pursuant to an opinion as of the date the opinion is filed with him".

[140 MICHAPP 76] Gusler was filed and entered on December 30, 1981. The "entry" of an order or judgment, however, is not the same as the date of its "issuance". GCR 1963, 866.3(d) provides:

"Execution or Enforcement. Unless otherwise ordered by the Court, an order or judgment is effective when it is issued under (b)(1), (b)(2), or (c) and execution is to be obtained in the trial court".

An order or judgment does not become effective, and is therefore of no precedential value, until it is "issued" in conformity with either subsection (b) or (c). People v. Phillips, 416 Mich. 63, 74, 330 N.W.2d 366 (1982). Compare People v. Recorder's Court Judge # 2, 73 Mich.App. 156, 160, 250 N.W.2d 812 (1977), lv. den. 400 Mich. 825 (1977), and People v. Draine, 72 Mich.App. 592, 596, 250 N.W.2d 139 (1976), lv. den. 401 Mich. 824 (1977), both decided prior to the 1978 amendment to GCR 1963, 866.

Under the provision for routine issuance of an order or judgment, 866.3(b), the clerk must send certified copies of the Supreme Court's order or judgment to both the trial court and the Court of Appeals no less than 20 days or more than 30 days after the order or judgment was entered. Under (b)(2), however, if a motion for rehearing is timely filed, the clerk does not send certified copies of the order or judgment until after the motion for rehearing is denied, or, if granted, until at least 20 days after the filing of the Court's opinion on rehearing. GCR 1963, 864.4(b). In other words, if a motion for rehearing is timely filed, the order or judgment previously entered by the clerk does not "issue" or become effective until after the motion is decided one way or the other. Here, as a motion for rehearing was filed within 20 days of the filing or "entry" of the Supreme Court's Gusler opinion, [140 MICHAPP 77] GCR 1963, 864.4(a), and as the motion was subsequently granted, the Gusler opinion was never "issued" in conformity with the court rules.

The subsequent dismissal of the appeal by the Court upon stipulation of the parties does not somehow work to "issue" the Court's order or judgment. Nor is this a case of "exceptional issuance" otherwise ordered by the Court under subsection (c). Compare, e.g., Oscoda Chapter of PBB Action Committee, Inc. v. Dep't of Natural Resources, 403 Mich. 215, 233, 268 N.W.2d 240 (1978), and Poletown Neighborhood Council v. City of Detroit, 410 Mich. 616, 636, 304 N.W.2d 455 (1981), with Gusler, supra, 412 Mich. p. 298, 315 N.W.2d 388. The Supreme Court's holding in Gusler, therefore, is without binding precedential effect. In accord, see Phillips, supra, 416 Mich. p. 75, 330 N.W.2d 366.

Since Gusler, supra, is of no effect, we must view defendants' petition for determination of rights as though Gusler was never decided. As defendants' petition does not plead a change in plaintiff's physical condition, Hlady v. Wolverine Bolt Co, 393 Mich. 368, 375-376, 224 N.W.2d 856 (1975) (quoting 58 Am.Jur., Workmen's Compensation, Sec. 508) or any other facts which would warrant a reduction in plaintiff's benefits, see,...