Riley v. Northland Geriatric Center

• Decision Date: 07 August 1986
• Docket Number: Docket No. 75802
• Parties: Geneva RILEY, Plaintiff-Appellee, v. NORTHLAND GERIATRIC CENTER, and Michigan Mutual Insurance Company, Defendants-Appellants. 425 Mich. 668, 391 N.W.2d 331
• Court: Michigan Supreme Court

Page 331

391 N.W.2d 331

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

Company, Defendants-Appellants.

Docket No. 75802.

425 Mich. 668, 391 N.W.2d 331

Supreme Court of Michigan.

Argued March 6, 1986.

Decided Aug. 7, 1986.

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

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Lansing, Ray W. Cardew, Jr., Asst. Atty. Gen., Detroit, for amicus curiae Director, Bureau of Workers' Disability Compensation Appendix and Proof of Service.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Lansing, Caleb B. Martin, Jr., Asst. Atty. Gen., Detroit, for amicus curiae Second Injury Fund.

RILEY, Justice.

We granted leave to appeal ¹ in this case to consider whether Gusler v. Fairview Tubular Products, 412 Mich. 270, 315 N.W.2d 388 (1981), is a nullity in light of the subsequent grant of rehearing, 414 Mich. 1102, 323 N.W.2d 909 (1982), and the ultimate dismissal of the appeal by stipulation of the parties on March 15, 1983, whether the defendant is barred by principles of res judicata from asserting a change in the law, and whether Gusler should be given retroactive effect.

We reverse the decision of the Court of Appeals and hold, consistent with Gusler, that the minimum rates cited in M.C.L. Sec. 418.351; M.S.A. Sec. 17.237(351) of the Workers' Disability Compensation Act are not subject to M.C.L. Sec. 418.355; M.S.A. Sec. 17.237(355) adjustments. Moreover, because the earlier treatment of the res judicata

issue by the Court of Appeals was based on the erroneous conclusion that Gusler was null and void, and because the retroactive effect of Gusler was never addressed, we remand this case to the Court of Appeals for consideration of these issues in light of our holding that Gusler is binding precedent.

FACTS AND PROCEDURAL HISTORY

Plaintiff originally filed a petition for hearing with the Department of Labor on July 15, 1980, alleging a back disability attributable to her work for defendant-employer. Following trial on that petition, the hearing referee concluded that the plaintiff had sustained a disabling injury arising out of and in the course of her employment and determined the plaintiff's weekly compensation wage in a decision dated October 6, 1981. It is alleged that no appeal was taken from this decision because the parties believed that Jolliff v. American Advertising Distributors, Inc., 49 Mich.App. 1, 211 N.W.2d 260 (1973), lv. den. 391 Mich. 780 (1974), governed determination of the minimum weekly compensation rate.

However, on December 30, 1981, this Court filed its opinion in Gusler, supra, expressly overruling Jolliff, holding that the minimum weekly compensation rates in Sec. 351 were not subject to the adjustments prescribed in Sec. 355. As a result of Gusler, the defendant filed a petition for determination of rights with the bureau, seeking an order reducing plaintiff's weekly rate of compensation. In a decision and order dated May 26, 1983, the hearing referee directed the reduction of plaintiff's weekly benefits in accordance with Gusler, thus, rejecting plaintiff's argument that res judicata barred such reduction.

Plaintiff appealed this decision to the Workers' Compensation Appeal Board, and, in a decision mailed December 8, 1983, the board reversed the referee's decision and order, holding that res judicata did in fact bar a reduction in plaintiff's workers' compensation rate.

The Court of Appeals granted defendants' application for leave to appeal on April 4, 1984, and subsequently, in an opinion dated January 2, 1985, Riley v. Northland Geriatric Center, 140 Mich.App. 72, 362 N.W.2d 894 (1985), affirmed the Workers' Compensation Appeal Board, holding that Gusler was not binding authority. The Court of Appeals opined that, inasmuch as this Court had granted a rehearing in Gusler, the subsequent dismissal of the appeal on the basis of the stipulation by the parties rendered that opinion a nullity. The Court of Appeals concluded by affirming the appeal board's order that interest be paid at a rate of twelve percent per annum. Selk v. Detroit Plastic Products, 419 Mich. 1, 345 N.W.2d 184 (1984); Selk v. Detroit Plastic Products (On Resubmission), 419 Mich. 32, 348 N.W.2d 652 (1984). ²

DISCUSSION

For purposes of this appeal, the history of the minimum rate controversy begins with the Court of Appeals opinion in Jolliff where the Court of Appeals held that the adjustment provisions of Sec. 355 ³ applied to both minimum and maximum weekly rates. Several years later, a different Court of Appeals panel affirmed the Jolliff opinion in Gusler v. Fairview Tubular Products, 92 Mich.App. 164, 284 N.W.2d 487 (1979). On appeal to this Court, we ruled in Gusler that the minimum rates provided for in Sec. 351 ⁴ were not subject to the adjustments provided for in Sec. 355 of the Workers' Disability Compensation Act.

"We disagree with this interpretation and hold that no adjustment to the minimum rates prescribed in Sec. 351 is authorized because none was intended by the Legislature. We reach that conclusion because of 1) the Legislature's failure to make specific provision for adjustment of minimum rates while explicitly doing so with respect to maximum rates, 2) an analysis of the history of the provision in question, and 3) the internal conflicts and plainly absurd results which plaintiff's construction of the statute would effect." 412 Mich. 285, 315 N.W.2d 388.

This Court recognized that the holding was "not unlike the announcement of a new rule of law" and that, in the interest of fairness, the opinion would not affect disability payments already made (nor would a recipient be obligated to repay any overcompensation), but that benefits due and not yet paid or to be awarded after the date of the opinion would be in accord with the Gusler ruling. Id. at 298, 315 N.W.2d 388. In this Court's order, issued pursuant to the Gusler opinion decided December 30, 1981, we reversed and remanded the case to the Workers' Compensation Appeal Board for proceedings in conformity with the filed opinion. We subsequently granted a timely filed motion for rehearing on August 5, 1982. However, on March 15, 1983, before any action was taken on rehearing, this Court dismissed the appeal upon stipulation by the parties. ⁵ 414 Mich. 1102, 323 N.W.2d 909 (1982).

In the instant case, the Court of Appeals, in granting leave to appeal, raised the issue, sua sponte, whether Gusler had any force or effect in light of this Court's grant of the rehearing and, thereafter, dismissal of the appeal pursuant to stipulation by the parties. In deciding this issue, the Court of Appeals looked to GCR 1963, 866, ⁶ specifically Sec. 3, as authority for ruling that, because the Gusler opinion and judgment were not issued due to the stipulation to dismiss, the Gusler opinion was a nullity and, thus, inapplicable to the instant case.

"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.'

"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 NW2d 366 (1982). Compare People v Recorder's Court Judge # 2, 73 Mich App 156, 160; 250 NW2d 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, 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 NW2d 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 . The Supreme Court's holding in Gusler, therefore, is without binding precedential effect. In accord, see Phillips, supra [416 Mich.], p 75 ." 140 Mich.App. 75-77, 362 N.W.2d 894.

While we agree with the Court of Appeals determination that GCR 1963, 866, is dispositive of the legal question, we believe that the Court of Appeals has erroneously applied Sec....