Thompson v. Ford Motor Co.

Citation362 N.W.2d 240,139 Mich.App. 177
Decision Date01 February 1985
Docket NumberDocket No. 70288
PartiesCharlie THOMPSON, Plaintiff-Appellant, v. FORD MOTOR COMPANY and Second Injury Fund, Defendant-Appellee. 139 Mich.App. 177, 362 N.W.2d 240
CourtCourt of Appeal of Michigan (US)

[139 MICHAPP 178] Kelman, Loria, Downing, Schneider & Simpson by Rodger G. Will, Detroit, for plaintiff-appellant.

Office of The Gen. Counsel by David L. Kaminski, Detroit and Conklin, Benham, McLeod, Ducey & Ottaway, P.C. by Martin L. Critchell, Detroit, of counsel, for Ford Motor Co.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Richard F. Zapala, Asst. Atty. Gen., for the Second Injury Fund.

Before GRIBBS, P.J., and BRONSON and SHEPHERD, JJ.

SHEPHERD, Judge.

Plaintiff appeals by leave granted September 27, 1983, from a February 25, 1983, decision of the Workers' Compensation Appeal [139 MICHAPP 179] Board. The appeal board denied plaintiff's claim for total and permanent disability on the ground that the claim was barred under the doctrine of res judicata due to an earlier award of 500 weeks of general disability compensation benefits for the same injury. We reverse and remand for a hearing on the issue of whether plaintiff knew or should have known he was totally and permanently disabled when he filed the prior petition for general disability benefits, and whether his condition changed between the time the general disability award was made and the filing of his petition for total and permanent disability benefits.

Plaintiff worked for the defendant Ford Motor Company from December 1959 until July 22, 1971. On October 15, 1963, plaintiff injured his back in a lifting accident. He alleged an additional back injury in June of 1965, which occurred while lifting equipment off the assembly line.

Plaintiff filed a petition for hearing dated January 3, 1974, alleging a low back injury as a result of the incidents of 1963 and 1965. A hearing was held before a hearing officer on August 28, 1974. In a decision dated September 10, 1974, the hearing officer found a general disability as a result of the injuries sustained by plaintiff in 1963 and 1965. He ordered the defendant to pay compensation benefits for 500 weeks from the last injury date in 1965. Plaintiff filed a claim for review, which resulted in a June 24, 1977, decision of the WCAB. The appeal board, finding only an October 15, 1963, injury date, held that plaintiff's entitlement to benefits expired in 1973. The appeal board's decision was appealed and became final when the Supreme Court denied leave to appeal on February 1, 1978. 402 Mich. 871, 282 N.W.2d 925.

While his general disability claim was still pending on appeal, plaintiff filed a second petition for [139 MICHAPP 180] hearing dated July 25, 1975, alleging total and permanent disability due to the loss of industrial use of the legs. He named Ford Motor Company and the Second Injury Fund as defendants. The hearing officer refused to rule on the new petition until the appeal board ruled on plaintiff's original claim. The hearing officer held a hearing on March 28, 1979, and issued a decision the same day. He denied the plaintiff's claim on the ground that it was not timely filed under M.C.L. Sec. 418.361(3)(g); M.S.A. Sec. 17.237(361)(3)(g). Section 361(3)(g) states that the permanency of a disability must be determined not less than 30 days before the expiration of 500 weeks from the date of injury. Plaintiff filed a claim for review. The appeal board affirmed the hearing officer's decision (one member dissenting), but for a different reason than that relied upon by the hearing officer. The appeal board noted that the plaintiff's petition need not be filed 30 days before the expiration of 500 weeks from the date of injury; rather, it must be proven only that the loss itself occurred within that period. Johnson v. Harnischfeger Corp, 414 Mich. 102, 323 N.W.2d 912 (1982). The appeal board justified its denial of the plaintiff's claim on the ground that the earlier adjudication operated to bar a later redetermination of his condition under the doctrine of res judicata. The board noted plaintiff's assertion that he was totally and permanently disabled in 1971, well before the prior hearing on the general disability issue.

Plaintiff contends, first, that his claim for total and permanent disability benefits is not barred by res judicata because the claim was neither raised nor considered at the prior hearing on his petition for general disability benefits. Secondly, he argues that, even if his claim against Ford Motor is barred, he may still seek total and permanent [139 MICHAPP 181] disability benefits from defendant Second Injury Fund, because the Fund's liability is separate and independent from the employer's. The Fund argues that plaintiff's claim of total and permanent disability lacks merit as a matter of law, citing an admission by plaintiff that he was capable of performing favored work on the last day he was employed.

The appeal board applied the doctrine of res judicata in reliance on Gose v. Monroe Auto Equipment Co., 409 Mich. 147, 294 N.W.2d 165 (1980), and Hlady v. Wolverine Bolt Co., 393 Mich. 368, 224 N.W.2d 856 (1975), decisions in which the Supreme Court endorsed application of the "broad rule" of res judicata in worker's compensation adjudications. Broad application of res judicata bars not only those claims raised in the prior action, but "bars as well those claims arising out of the same transaction which plaintiff could have brought, but did not". Gose, supra, 409 Mich. p. 160, 294 N.W.2d 165. As noted in Hlady, supra, 393 Mich. pp. 375-376, 224 N.W.2d 856, quoting 58 Am.Jur., Workmen's Compensation Sec. 508:

" 'The general rule with respect to the effect upon the application of the principles of res judicata to decisions under workmen's compensation acts, of a provision authorizing the modification of an award upon a showing of a change in the employee's condition, is 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, but it is not an adjudication as to the claimant's future condition and does not preclude subsequent awards or subsequent modifications of the original award upon a showing that the employee's physical condition has changed.' " (Emphasis in Hlady.)

However, the Supreme Court has not decided the precise question presented here. The plaintiffs [139 MICHAPP 182] in Gose, supra, each attempted to make a second claim of total and permanent disability. 409 Mich. at 162-163, 294 N.W.2d 165. In contrast, plaintiff herein sought and received general benefits under M.C.L. Sec. 418.301; M.S.A. Sec. 17.237(301). Although his second claim is based on the same injury, it is separate and distinct, requires different proofs, and has a different statutory basis. M.C.L. Sec. 418.361(3)(g); M.S.A. Sec. 17.237(361)(3)(g); Redfern v. Sparks-Withington Co, 403 Mich. 63, 79-80, 268 N.W.2d 28 (1978).

Of course, the question of total and permanent disability is "adjudicable", in a broad sense, in every case where the claimant files a claim for general disability benefits....

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4 cases
  • Dunbar v. Department of Mental Health
    • United States
    • Court of Appeal of Michigan — District of US
    • November 17, 1992
    ...legislation is to promptly deliver benefits to employees injured in the scope of their employment. Thompson v. Ford Motor Co., 139 Mich.App. 177, 182, 362 N.W.2d 240 (1984). Pursuant to M.C.L. Sec. 418.301(1); M.S.A. Sec. 17.237(301)(1), an employee who suffers a personal injury arising out......
  • Sullens v. Ford Motor Co.
    • United States
    • Court of Appeal of Michigan — District of US
    • May 18, 2001
    ...214 N.W.2d 797 (1974); Paulson v. Muskegon Heights Tile Co., 371 Mich. 312, 313-314, 123 N.W.2d 715 (1963); Thompson v. Ford Motor Co., 139 Mich.App. 177, 179, 362 N.W.2d 240 (1984); Lockwood v. Continental Motors Corp., 27 Mich.App. 597, 599, 183 N.W.2d 807 Nonetheless, the WCAC in Gray he......
  • Banks v. Lab Lansing
    • United States
    • Court of Appeal of Michigan — District of US
    • June 1, 2006
    ...changed after the decision on the first claim, it could not have been presented in the first instance. Thompson v. Ford Motor Co., 139 Mich.App. 177, 181-183, 362 N.W.2d 240 (1984); Wood v. Fabricators, Inc., 189 Mich.App. 406, 417-418, 473 N.W.2d 735 This case is somewhat different, in tha......
  • Wood v. Fabricators, Inc.
    • United States
    • Court of Appeal of Michigan — District of US
    • May 20, 1991
    ...of total and permanent disability is adjudicable in every case where the claimant files a claim for general disability benefits. Id., at p. 182, 362 N.W.2d 240. However, to apply res judicata in the manner urged by defendant on appeal would lead to anomalous results and a waste of judicial ......

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