Sanders v. General Motors Corp., Oldsmobile Division

• Citation: 263 N.W.2d 329,80 Mich.App. 190
• Decision Date: 06 December 1977
• Docket Number: Docket No. 31376
• Parties: Louise E. SANDERS, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, OLDSMOBILE DIVISION and Second Injury Fund, Defendants-Appellees. 80 Mich.App. 190, 263 N.W.2d 329
• Court: Court of Appeal of Michigan (US)

Page 329

263 N.W.2d 329

Louise E. SANDERS, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, OLDSMOBILE DIVISION and Second

Injury Fund, Defendants-Appellees.

Docket No. 31376.

80 Mich.App. 190, 263 N.W.2d 329

Court of Appeals of Michigan.

Dec. 6, 1977.

Released for Publication March 14, 1978.

[80 MICHAPP 191] Viella & Mitchell by Thomas P. Mitchell, Lansing, for plaintiff-appellant.

Richard J. Anderson, Lansing, for General Motors Corp.

William J. Szykula, Asst. Atty. Gen., for Second Injury Fund.

Before DANHOF, C. J., and ALLEN and HEADING, ^* JJ.

ALLEN, Judge.

Plaintiff appeals a ruling of the Workmen's Compensation Appeal Board (WCAB) that an earlier Workmen's Compensation Bureau (Bureau) determination that she was not totally and permanently disabled ¹ bars a renewed claim by the plaintiff unless she can show that her condition has changed for the worse since the first determination. We must decide whether the WCAB has properly applied the doctrine of res judicata in this instance.

The plaintiff injured her back in 1960, but continued working until 1963, at which point her back [80 MICHAPP 192] condition degenerated to the extent that she could no longer work. The defendant voluntarily paid benefits for several years, and the plaintiff underwent extensive treatment and multiple surgical procedures.

In 1967, she filed a petition for workers' compensation benefits, requesting a ruling that she was totally and permanently disabled as that term was defined in the former 1948 C.L. 412.10(b)(7). ² The equivalent current provision is found in M.C.L.A. § 418.361(2)(g); M.S.A. § 17.236(361)(2)(g). The hearing referee determined that the plaintiff was totally disabled and entitled to some benefits, but concluded that she did not have a "total and permanent disability" as defined by the cited statute.

The statute in effect at the time of the plaintiff's injury limited benefits for total disability to 500 weeks. 1948 C.L. 412.9(a) (since repealed and replaced by M.C.L.A. § 418.351(1); M.S.A. § 17.237(351)(1)). This limit did not apply to persons found to have a "total and permanent disability". The 500-week limitation was removed by 1965 P.A. 44, but it nevertheless applied to the plaintiff's case because absent a clear legislative expression of contrary intent compensation rights are determined under the law in effect on the date of injury. Briggs v. Campbell, Wyant & Cannon Foundry Co., 379 Mich. 160, 150 N.W.2d 752 (1967). But cf. Lahti v. Fosterling,357 Mich. 578, 99 N.W.2d 490 (1959).

When her 500 weeks of compensation benefits expired late in 1972, the plaintiff filed a new petition, again requesting a finding of "total and permanent disability". The administrative law judge ruled on September 30, 1974, that the plaintiff[80 MICHAPP 193] was "totally and permanently disabled" and was entitled to further benefits.

The defendants appealed this decision to the WCAB which reversed the administrative law judge in an opinion which may be summarized by the following quotation.

"Defendants raise the doctrine of res judicata alleging that the issue of total and permanent disability was litigated in 1968 and absent a change in the plaintiff's physical condition, the issue may not be relitigated. There is no question that defendants are correct in their interpretation of res judicata in workmen's compensation cases."

The WCAB went on to find that the plaintiff's condition had not changed. It therefore reversed the administrative law judge and held that the plaintiff was not entitled to further benefits.

We hold that the WCAB misapplied the doctrine of res judicata in this instance. We therefore remand this case to the WCAB for reconsideration in light of the principles set forth below.

The doctrine of res judicata does apply to workers' compensation proceedings. Hlady v. Wolverine Bolt Co., 393 Mich. 368, 224 N.W.2d 856 (1975). But Hlady, the present case, and the just released Morgan v. Freedman Artcraft, 401 Mich. 54, 257 N.W.2d 85 (1977), amply demonstrate that application of the doctrine in this context is extremely difficult. ³

Assuming, arguendo, that the plaintiff's condition[80 MICHAPP 194] has not changed since the date of her first hearing, and assuming a proper application of the doctrine of res judicata, she may, nevertheless, still be entitled to benefits for "total and permanent disability".

For example, it is possible that the referee who entered the first award in 1968 found that the plaintiff was then suffering a total loss of industrial use of her legs but that it was impossible at that time to determine whether or not the loss was permanent. A premature determination of permanency would have been unwise and unfair to the defendants since it would have created an 800-week conclusive presumption of "total and permanent disability" and required the defendants to pay benefits for that period even if the plaintiff completely recovered from her disability at an earlier date. Hlady v. Wolverine Bolt Co., supra, notes that the prior determination is "conclusive of all matters adjudicable at that time". ⁴ 393 Mich. at 376, 224 N.W.2d at 859. In this context, the question of permanency may not have been adjudicable at the time of the 1968 hearing. The fact that the disability continued through 1972 would be further evidence of permanency and might permit a finding at that time that the loss of industrial use of the plaintiff's legs was, in fact, permanent and that she was, therefore, entitled to a finding of "total and permanent disability". ⁵

[80 MICHAPP 195] We have so far proceeded on the assumption that the referee found in 1968 that the plaintiff had totally lost the industrial use of her legs but it was too soon to decide whether that loss was permanent. However, given the cursory nature of the referee's decision and the fact that neither party appealed that decision, at least one other possible interpretation of that decision must be discussed.

Whether or not the referee believed that the plaintiff's condition was permanent, he may have found no "total and permanent disability" because he found no "loss of industrial use of both legs". While the statutory phrase has remained the same, the case law interpretation of that phrase has undergone a considerable evolution beginning shortly after the plaintiff's 1960 injury date. Paulson v. Muskegon Heights Tile Co., 371 Mich. 312, 123 N.W.2d 715 (1963), Lockwood v. Continental Motors Corp., 27 Mich.App. 597, 183 N.W.2d 807 (1970), Burke v. Ontonagon County Road Commission, 391 Mich. 103, 214 N.W.2d 797 (1974). Today it is clear that a back injury which prevents use of the legs qualifies as a "loss of industrial use of both legs". But, at the time of the plaintiff's injury and her first hearing, that interpretation had not yet clearly emerged. If the referee found no "total and permanent disability" because he thought that a back injury could not be a "loss of industrial use of both legs", then the plaintiff may, ⁶ in fact, not [80 MICHAPP 196] be able to recover unless her condition changes for the...