Hlady v. Wolverine Bolt Co.

T. M. Kavanagh, J.

On October 18, 1945 Mary Hlady’s right hand got caught in a punch press at work. This industrial accident amputated four fingers on that hand. Her employer, Wolverine Bolt Company, reported this injury to the Compensation Commission of the Department of Labor and paid workmen’s compensation benefits for the loss of her four fingers.

Upon expiration of the statutory 100 week payment for the specific loss sustained, plaintiff filed an application for hearing and adjustment of claim with the compensation commission in December, 1947. In that application the plaintiff alleged that her industrial injury had resulted in the industrial loss of use of her right hand and/or general disability.

At a hearing held in 1948 Commissioner Mc-Auliffe stated the issue in this case precisely as follows:

"The present issue is solely whether plaintiff still has any right to compensation in addition to that heretofore paid for the specific loss.”

After hearing the medical testimony, Commissioner McAuliffe found as follows:

"I further find that the plaintiff failed to establish that she has any further disability over and beyond the natural consequences of the loss of her four ñngers on the right hand. Hence her claim for compensation in addition to that paid for her specific losses is denied.” (Emphasis added.)

On review of this decision in 1948, the Workmen’s Compensation Commission reversed the commissioner, finding "that the plaintiff has lost the industrial use of her right hand as the result of her amputations of October 18, 1945”.

This Court granted leave to appeal from that decision of the Compensation Commission and decided the issues raised in Hlady v Wolverine Bolt Co, 325 Mich 23; 37 NW2d 576 (1949). In reversing the Compensation Commission, this Court stated, p 25:

"The record is devoid of testimony tending to prove that plaintiff has suffered any different or greater loss than normally results from the amputation of 4 Ungers of a hand. Notwithstanding plaintiff claimed that the amputation of her fingers resulted in disabling 'sequelae’ and 'general disability,’ the commission found none except disability which normally follows such amputations. ” (Emphasis added.)

This Court denied any further benefits to plaintiff.

In 1967 plaintiff again filed a petition with the Workmen’s Compensation Department asking for further benefits. This statement by the Workmen’s Compensation Appeal Board, on review of the case in 1972, put the present issue in this case squarely in focus.

"The Referee’s fact-finding accepted by this Board, is that no change in plaintiffs physical condition has taken place since her 1948 adjudication. The only change of any kind has been the Van Dorpel¹ decision, supra. ”

The Appeal Board denied further benefits, basing this denial on their application of the doctrine of res judicata in light of this Court’s prior decision in this matter, and in light of the one-year-back rule, part III, § 14 of the Workmen’s Compensation Act.²

The Court of Appeals in an unpublished opinion, Docket No. 13991, March 30, 1973, affirmed the ruling of the Appeal Board. They felt that the present claim was barred by the doctrine of res judicata.

This Court granted leave to appeal from that decision to consider the questions raised above.

Findings of fact by the Workmen’s Compensation Appeal Board are conclusive if supported by the evidence presented. Johnson v Vibradamp Corp, 381 Mich 388; 162 NW2d 139 (1968). This Court is bound by the factual findings of the Appeal Board in the instant case as they are adequately supported by the record before us. Therefore, as the Appeal Board noted, the sole question to be answered by this Court is what effect, if any, our Van Dorpel decision, supra, has on the rights of the parties to the instant case.

It should be pointed out at the outset, that the Van Dorpel rule itself has not, up to this point in time, mustered a majority on this Court. This Court, however, with the advantage of the passage of time, clearly believes Justice Voelker’s opinion more in keeping with the spirit of the Workmen’s Compensation Act and the better reasoned opinion. We would lend our support to his views.

In his Van Dorpel opinion, Justice Voelker held that an injured workman who had suffered various specific losses in 1948, and had been paid the statutory amount for these specific losses, bqt who, because of the natural consequences which normally follow from various amputations, was still disabled from working at the expiration of the benefits paid for these amputations, was entitled to collect further compensation under the general disability sections of the Workmen’s Compensation Act.³

In effect, Van Dorpel allows benefits for that disability which our Court recognized may have been present in the Hlady, supra, case when it decided the issues in 1949. The facts in Hlady and Van Dorpel are almost identical. The law applied to each has varied with the passage of time. But does our law permit this Court to now reach, 29 years after Mary Hlady’s accident, any different result?

There is little question that the doctrine of res judicata applies to workmen’s compensation proceedings. Besonen v Campbell, 243 Mich 209; 220 NW 301 (1928). This Court has cited with approval the rule set forth in 58 Am Jur, Workmen’s Compensation, § 508. See White v Michigan Consolidated Gas Co, 352 Mich 201; 89 NW2d 439 (1958). This section states:

"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 added.)

Mary Hlady’s physical condition has not changed since her 1945 injury. The only change has been in the law applied to cases of this nature. However, it has long been the law of this state, starting with the leading case of Jacobson v Miller, 41 Mich 90; 1 NW 1013 (1879), that the doctrine of res judicata applies not only to facts previously litigated, but also to points of law which were necessarily adjudicated in determining and deciding the subject matter of the litigation.

In Jones v Chambers, 353 Mich 674; 91 NW2d 889 (1958), decided just one year after our Van Dorpel decision this Court made that point very clear. We stated, pp 680-681:

"Where issues of fact or law have been finally decided by a court of competent jurisdiction in one legal action which are essential to the maintenance of another legal action, it is universally held that the second action must fail.

"Michigan’s leading case on the doctrine of res judicata is Justice Cooley’s opinion in Jacobson v Miller, 41 Mich 90. The second headnote gives us this pertinent summary:

" 'An adjudication is conclusive in respect to (1) the subject matter of the litigation, and (2) the point of fact or law or both necessarily settled in determining the issue on the subject matter.’

"See, also, Viaene v Mikel, 349 Mich 533 [84 NW2d 765 (1957)].

"The courts have, however, divided to some degree as to whether the principle involved is an application of the doctrine of res judicata, or a somewhat separate doctrine of collateral estoppel.

"The United States supreme court has answered this problem in legal linguistics thus:

" 'We have often held that under the doctrine of res judicata a judgment entered in an action conclusively settles that action as to all matters that were or might have been litigated or adjudged therein. But a prior judgment between the parties has been held to operate as an estoppel in a suit on a cause of action different from that forming the basis for the original suit "only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.” This latter aspect of res judicata is the doctrine of collateral estoppel by judgment, established as a procedure for carrying out the public policy of avoiding repetitious litigation.’ Partmar Corporation v Paramount Pictures Theatres Corp, 347 US 89, 90, 91 (74 S Ct 414, 98 L ed 532 [1954]).” (Emphasis added.)

See also Moritz v Horsman, 305 Mich 627; 9 NW2d 868; 147 ALR 117 (1943).

Plaintiff asserts that in her previous visit to this Court that she did not specifically raise a Van Dorpel issue and that this Court did not specifically reaffirm its prior holding in Curtis v Hayes Wheel Co, 211 Mich 260; 178 NW 675 (1920). Therefore, she asserts the doctrine of res judicata does not apply to the instant proceedings. However, an almost identical argument was presented to this Court in Tessler v Rothman, 232 Mich 62; 204 NW 694 (1925). In that case the Court stated, pp 66-68:

"The principle for which the plaintiff contends in this case is well stated in 15 R. C. L. p 972, § 449, as follows:

" 'While a judgment is decisive of the points raised by the pleadings, or which might properly be predicated upon them, it does not embrace any matters which might have been brought into the litigation, or causes of action which the plaintiffs might have joined, but which in fact, were not joined or embraced in the pleadings.’

"Counsel also cites Barras v Youngs, 185 Mich 496 [152 NW 219 (1915)], and insists it is controlling.

"It may be well in this connection to quote further from 15 R. C. L., which we do as follows:

" 'On the other hand it is equally well settled that a fact which was directly tried and decided by a court of competent jurisdiction cannot be contested again between the same parties in the same or in any other court, and that where some controlling fact or question material to the determination of both actions has been determined in a former suit, and the same fact or question is again at issue between the same parties, its adjudication in the first will, if properly presented, be conclusive of the same question in the latter suit, without regard to whether the cause of action is the same or not, or whether the same suit involves the same or a different subject-matter. * * * In such cases it is also immaterial that the two actions were based on different grounds or tried on different theories or are instituted for different purposes and seek different relief.’ 15 R. C. L. p 974, § 450.

" 'While this doctrine of the effect of a judgment as an estoppel in subsequent actions is limited to matters involved in the litigation, it is generally held to be equally applicable whether the point decided is of itself the ultimate vital point, or only incidental, if still necessary to the decision of that point, and a judgment in a prior suit is deemed final and conclusive in subsequent litigation between the parties, or their privies, as to those matters necessarily determined or implied in reaching the ñnal judgment, although no speciñc ñnding may have been made thereto, and even though it was not raised as an issue by the pleadings in the former action. If the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties.’ 15 R. C. L. p 976, § 451.

"In the case of Barker v Cleveland, 19 Mich 230 (1869), Chief Justice Cooley, speaking for the court, says:

" 'To make a judgment in one case a bar to another it is not necessary that the object of the two suits be the same, nor that the parties should stand in the same relative position to each other. * * * And it is immaterial whether the point was actually litigated or not if its determination was necessarily included in the judgment. ’ ” (Emphasis added.)

Counsel are in disagreement whether or not the Van Dorpel issue was actually litigated in the former Hlady case. There is no doubt that plaintiff claimed general disability over and beyond the loss of her fingers. Nor is there any doubt that evidence was introduced into the record by plaintiff and defendant alike as to the extent of the disability suffered by plaintiff. It is true that plaintiff did not specifically brief and argue the Van Dorpel issue before this Court. She did not argue that the disability created by the loss of her four fingers itself entitled her to additional benefits. She did not request the Court to overrule Curtis, supra.

Yet, at the same time, plaintiff fully understood that the Curtis-Van Dorpel issue was crucial to her application for further benefits and that it necessarily must be either affirmed or rejected by this Court in its final judgment. In her supplemental brief filed with this Court in 1949, the plaintiff states:

"In the instant case, for example, the testimony clearly indicates that Mary Hlady is for all practical purposes unemployable and relegated to odd-lot and favored employment. She is in fact totally disabled. Hood v Wyandotte, 272 Mich 190 [261 NW 295 (1935)]. Were it not for the limitation contained in the Act setting forth her right to compensation for the loss of a hand, she could probably claim compensation for the entire period of total disability which might extend up to 750 weeks.”

However, plaintiff by this statement concedes the issue she now tries to raise before this Court. As we clearly pointed out in Van Dorpel the limitation she speaks of is not contained within the act itself. It lay within the confines of our old Curtis, supra, holding. In Van Dorpel, supra, p 147 we stated:

"This case involves an interpretation of a statute which is silent on the precise issue involved. This Court 37 years ago decided what it thought the correct interpretation should be. We happen to disagree with that old interpretation and wish to make a new interpretation, * * * .”

Plaintiff may not concede an issue, necessarily determinative of and included in the judgment of this Court, and then, after another has successfully raised the issue she did not wish to contest, ask the Court again for relief. The doctrine of res judicata bars this from happening. Mary Hlady could have as easily raised this issue as Peter Van Dorpel. It was, in fact, incumbent upon her to do so if she wished to avail herself of that interpretation.

Even if the doctrine of res judicata did not apply in this case, our Workmen’s Compensation Act itself prevents this Court from awarding further benefits to the plaintiff. As set forth previously in this decision, the act contains a one-year-back rule provision. In effect this provision prevents the courts or the Appeal Board from awarding payment of benefits for any period of time prior to one year back from the filing of the petition for hearing. In the instant case plaintiff filed her petition with the Department on November 16, 1967. The one-year-back rule, if applicable, would prevent this Court from awarding benefits covering any period of time prior to November 16, 1966. Yet the act itself mandates that at an absolute maximum, Mary Hlady may not be compensated for any period of time extending beyond 500 weeks from October 18, 1945. Thus no benefits may be awarded to the plaintiff for any period beyond the year 1955. See Clements v Chrysler Corp, 321 Mich 558; 33 NW2d 82 (1948).

It was the intent of the Legislature in enacting this built-in statute of limitations into the Workmen’s Compensation Act that it apply to situations akin to the instant one. It has been 25 years since the prior decision of this Court. During that period of time plaintiff has complacently sat back while others have attacked the prior decisions of this Court, including her own, see Mitchell v Metal Assemblies, Inc, 379 Mich 368; 151 NW2d 818 (1967), which, until they were overruled, barred her from further compensation. First, Curtis, supra, had to be overruled by Van Dorpel. Yet, plaintiff still within the statutory limitation period did not file. We assume her reason for not doing so was the fact that from 1934 until 1966 a six-year statute of limitations was present within the Workmen’s Compensation Act by virtue of this Court’s decision in Hajduk v Revere Copper & Brass, Inc, 268 Mich 220; 255 NW 770 (1934).⁴

Plaintiff did not contest this facet of our case law either. It was not until this Court, in Mitchell supra, overruled plaintiffs own previous case that she decided to come forth. This situation is a far cry from that presented the Court in White v Michigan Consolidated Gas Co, supra. The one-year-back rule provision of the Workmen’s Compensation Act applies to this case. Any further claim for compensation by plaintiff is barred by the act itself.

Also, as pointed out above, plaintiff is claiming disability benefits for a period beginning in October 1947 and continuing for a period beyond that point. In Van Dorpel, p 143, we stated the test to be applied for these benefits as follows:

"In our view the sole question in all of these cases should be: after the passage of the number of weeks allowed for the specific loss or losses falling short of declared total disability, can the injured workman go back to work?”

Plaintiff claims that the record supports her position that she has been unable to work from 1945 through 1955, the approximate length of time for which benefits in this case are claimed. We do not find such to be the fact.

In Hood v Wyandotte Oil & Fat Co, 272 Mich 190; 261 NW 295 (1935), this Court first discussed a situation akin to that present before us. Hood, supra, was again recently discussed by this Court in Pulley v Detroit Engineering & Machine Co, 378 Mich 418; 145 NW2d 40 (1966).

The facts of Pulley are similar to those of the instant case. In both cases the plaintiff was a punch press operator prior to his accident. In both cases the plaintiff suffered the amputation of all or the major part of one of his hands. Mrs. Hlady contends that this amputation by itself, coupled with the fact that she has not returned to work since her original accident, establishes the fact of her total disability. Yet in Pulley, supra, this Court stated (pp 426-427):

"The question therefore becomes what proof did appellant introduce as to his actual earning capacity at the hearing before the referee? We agree at the outset with appellant’s counsel that there is no testimony to support the conclusion of the appeal board that plaintiff would have been able to return to his punch press job despite his injury. The only testimony on the point available to us is the contrary, namely, that the operation of a punch press requires two hands. Were this point controlling, we would perforce vacate the finding of the appeal board as having no testimonial support. However, the test is not whether appellant could again operate a punch press and earn the same wages he did at the time of his injury. To so hold would read out of the statute the unequivocal and clear language:

" 'The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.’

"What proof then did plaintiff-appellant submit of his 'actual earning capacity after the employment ceases, as. affected by his physical condition, his ability to work, the market for his labor and other pertinent circumstances.’ MacDonald [v Great Lakes Steel Corp, 274 Mich 701; 265 NW 776 (1936)], supra. Regrettably, there is little, if any, direct testimony on the point.”

In this case, plaintiff has entered no proof as to her wage-earning capacity between 1945 and 1955. This Court made it very clear in Hood, supra, that the finding of such incapacity was a factual determination to be made by the Workmen’s Compensation Department based upon the record before them. In Pulley, supra, we again reaffirmed this position.

In the instant case the Appeal Board has made no factual findings regarding plaintiffs wage-earning capacity for the crucial period of time. Indeed, they could not have made such a finding, other than one negative to plaintiff, for the plaintiff presented no evidence of this impaired ability to earn wages to the department. It was the plaintiffs burden to produce such evidence. Pulley, supra. Findings of fact in these cases must be supported by the record. It does not exist in this case.

The decision of the Court of Appeals is affirmed. Costs to appellee.

Swainson, Williams, and J. W. Fitzgerald, JJ., concurred with T. M. Kavanagh, J. M. S. Coleman, J., concurred in the result.

1 Van Dorpel v Haven-Busch Co, 350 Mich 135; 85 NW2d 97 (1957).

2 Currently MCLA 418.833; MSA 17.237 (833); formerly MCLA 413.14; MSA 17.188. The statute reads "[i]f payment of compensation is made (other than medical expenses) and an application for further compensation is later filed with the commission, no compensation shall be awarded by the commission for any period which is more than 1 year prior to the date of the filing of such application”. This section read the same in 1945 as it does today.

3 MCLA 421.9; MSA 17.159.

4 Neither counsel in this case have addressed themselves to the question of whether or not, where the accident itself, and the entire period of maximum statutory benefits ended years before this Court’s decision in Autio v Proksch Construction Co, 377 Mich 517; 141 NW2d 81 (1966), overruling Hajduk, supra, the Autio decision would be applied by the Court retroactively.