Order Michigan Supreme Court

Lansing, Michigan 

April 9, 2008 Clifford W. Taylor,

 Chief Justice 

133762 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

WAYLON E. GEE,

Plaintiff-Appellee, 

Robert P. Young, Jr. 

Stephen J. Markman,

 Justices 

v SC: 133762 

 COA: 269351 

WCAC: 03-000402 

ARTHUR B. MYR INDUSTRIES, INC.,

Defendant-Appellant. 

_________________________________________/ 

On January 9, 2008, the Court heard oral argument on the application for leave to 

appeal the March 15, 2007 judgment of the Court of Appeals. On order of the Court, the 

application is again considered. MCR 7.302(G)(1). In lieu of granting leave to appeal, 

we REVERSE the judgment of the Court of Appeals that res judicata did not bar the 

plaintiff’s second application for attendant care benefits. The Worker’s Compensation 

Appellate Commission denied the plaintiff’s initial claim because the plaintiff failed to 

present proof on a required element of that claim. This decision of the WCAC became a 

final order. In his second application, the plaintiff did not claim and the WCAC did not 

find that the plaintiff’s condition had changed for the worse. As a result, the Court of 

Appeals erred in concluding that the plaintiff’s claim of attendant care benefits “was not 

an issue that was, or even could have been adjudicated in the initial proceeding.” In 

addition, the Court of Appeals erred by concluding that this case is governed by Ivezaj v 

Federal Mogul (On Remand), 197 Mich App 462 (1992). The record shows that the 

award of attendant care benefits was based on an application by the plaintiff and not the 

providers of care. First, the record shows that although the care providers filed their 

applications 11 days before the hearing on the plaintiff’s second application, defendant 

was not served with the care providers applications until November 18, 2003, two months 

after the magistrate’s decision was mailed on September 11, 2003. Second, the 

magistrate’s award was made retroactive to one year before plaintiff’s application was 

filed, not one year before the care providers’ applications were filed. See MCL 

418.381(3). And third, none of the case captions in the lower courts have listed the care 

providers as parties, and the care providers did not testify at the hearing on the plaintiff’s 

second application. As a result, the plaintiff’s second claim is barred by res judicata. 
2

 WEAVER, J., dissents and states as follows: 

I would deny leave to appeal and dissent from the peremptory order reversing the 

judgment of the Court of Appeals for the reasons stated in the Court of Appeals opinion, 

Gee v Arthur B. Myr Industries, Inc, unpublished opinion per curiam, decided March 15, 

2007 (Docket No. 269351): 

This case comes to this Court on remand from our Supreme Court. 

Defendant appeals an April 12, 2005, order of the Worker’s Compensation 

Appellate Commission (“WCAC”) that affirmed a magistrate’s award of 

attendant care benefits. We affirm. This appeal is being decided without 

oral argument pursuant to MCR 7.214(E). 

The WCAC summarized the procedural history of this case as follows: 

“Plaintiff initially injured his low back in the course of his 

employment with defendant on August 10, 1992. Benefits for that injury 

were paid voluntarily. Plaintiff filed an Application for Mediation or 

Hearing with the Bureau on March 27, 2000, claiming that he was totally 

and permanently disabled due to the residuals of the low back injury. By 

decision mailed July 9, 2001, Magistrate Barney found an injury date of 

August 10, 1992, ongoing disability resulting therefrom, further 

finding reflex sympathetic dystrophy (RSD) to be related to the 8/10/92 

injury and awarded total and permanent disability benefits (T&P). The 

magistrate also ordered ‘reasonable medical treatment related to plaintiff’s 

injury.’ Testimony on this issue of attendant care was taken at that time. 

However, the magistrate made no specific findings pertaining to attendant 

care. 

“Both parties appealed the magistrate’s July 9, 2001 decision to the 

Commission. The main issue of that appeal was attendant care. ThenCommissioner Pryzbylo framed the arguments raised by the parties thusly: 

‘Plaintiff and defendant appeal the decision of 

Magistrate Michael Barney, mailed July 9, 2001, granting 

plaintiff total and permanent disability benefits for his various 

conditions. Both parties present issues related to attendant 

care benefits. Plaintiff argues that the magistrate erred when 

he failed to include a ruling on plaintiff’s request for 

attendant care benefits. To rectify the alleged error, plaintiff 

requests a remand that includes the opportunity to present 

further proof on the issue. Defendant responds arguing that 

plaintiff failed to enter any proofs of an appropriate rate for 
3 

attendant care and that the magistrate properly refused to 

order benefits because of that failure.’ 

“Noting that the magistrate ‘did not directly rule on plaintiff’s 

request for attendant care benefits,’ the Commission provided the following 

rationale defending the magistrate’s treatment of this issue: 

‘We find no error in the magistrate’s procedure. 

Section 315 requires plaintiff to prove the reasonableness of 

any medical expense. Reasonableness includes an evaluation 

of the dollar amount involved. As the magistrate noted, 

plaintiff provided no proof of the cost. Without that proof, the 

magistrate properly excluded attendant care benefits. 

Recognizing his failure in proving the reasonableness of the 

attendant care, plaintiff requests a remand that allows him to 

enter the necessary proofs. Such remand would improperly 

advantage plaintiff and disadvantage defendant. We cannot 

ignore the legal consequence of plaintiff resting on his proofs 

at the conclusion of all hearings.’ 

“Both the Court of Appeals and Supreme Court denied plaintiff’s 

subsequent Applications for leave to appeal the Commission’s opinion. 

[Gee v Arthur B. Myr Industries, Inc, 2005 Mich ACO 101, p 2-3 

(footnotes omitted).]” 

Subsequently, plaintiff, his wife, and his mother filed applications 

seeking attendant care benefits. At a hearing on those applications, plaintiff 

presented the testimony of a registered nurse who opined that plaintiff 

needed 56 hours of attendant care per week to assist with bathing, 

grooming, meal preparation, and mobility. Plaintiff testified that his 

condition had progressively deteriorated since the initial proceedings, and 

that he spent virtually all of his time in the house, and 90% of that time in 

his bed, due to a lack of mobility. Plaintiff indicated that he did not want 

strangers in his home, and requested that the care his mother, wife, and 

daughter provided be recognized as compensable attendant care. Defendant 

presented the testimony of a registered nurse who opined that plaintiff was 

in need of attendant care services, but not necessarily for eight hours per 

day. 

The magistrate concluded that, contrary to defendant’s contention, 

the applications for attendant care benefits were not barred by res judicata. 

On the res judicata issue, the magistrate considered Barnowksy v General 

Motors Corp, unpublished opinion per curiam of the Court of Appeals, 
 

4 

issued December 21, 2001 (Docket No. 231169), to be “instructive,” and 

Ivezaj v Federal Mogul Corporation (On Remand), 197 Mich App 462, 

464; 495 NW2d 800 (1992), to be “controlling.” The magistrate concluded 

that plaintiff was entitled to attendant care benefits. 

Defendant appealed the magistrate’s award of attendant care benefits 

to the WCAC, and argued that the petitions for attendant care benefits were 

barred by res judicata. The WCAC disagreed and concluded that the 

magistrate’s analysis and conclusions were proper. 

Defendant sought leave to appeal to this Court, raising, among other 

things, a res judicata issue. Defendant’s application for leave to appeal was 

denied for lack of merit in the grounds presented.1 

Defendant then filed an application for leave to appeal to our 

Supreme Court. Our Supreme Court issued the following order: 

“[P]ursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, 

we REMAND this case to the Court of Appeals for consideration, as on 

leave granted, of whether the current claim for attendant care benefits under 

MCL 418.315(1) is barred by the doctrine of res judicata. In all other 

respects, leave to appeal is DENIED, because we are not persuaded that the 

remaining questions presented should be reviewed by this Court. [Gee v 

Arthur B Myr Industries, Inc., 474 Mich 1098; 711 NW2d 75 (2006).]” 

The issue of whether res judicata is applicable is a question of law 

that we review de novo. See Banks v LAB Lansing Body Assembly, 271 

Mich App 227, 229; 720 NW2d 756 (2006). In Banks, supra at 229-230, 

this Court discussed res judicata as it applied to worker’s compensation 

cases: 

“The doctrine of res judicata applies to workers’ compensation 

awards, because requiring the worker to ‘present all of his available claims 

in a single proceeding is consistent with this purpose of adjudicating the 

worker’s needs.’ Gose v Monroe Auto Equip Co, 409 Mich 147, 162; 294 

NW2d 165 (1980). A workers’ compensation award is generally considered 

an adjudication of the injured worker’s condition at the time it is entered, 

and it is ‘“conclusive of all matters adjudicable at that time . . . .” ‘ Hlady v 

Wolverine Bolt Co, 393 Mich 368, 375-376; 224 NW2d 856 (1975), 

quoting 58 Am Jur, Workmen’s Compensation, § 508. However, a 

claimant may later raise a different claim or modify an existing award if the 

employee’s physical condition worsens. Hlady, supra at 376. These rules 

presuppose that some claims, although originating before the final award, 
 

5 

are not ‘adjudicable’ or ‘available’ to the litigant in one, initial 

adjudication.” 

We find no error warranting reversal. First, as noted by the 

magistrate and the WCAC, this Court has recognized that where a family 

member of an injured employee files a claim for reimbursement for nursing 

services provided to the injured employee in his or her own name, and not 

as a subrogee of the injured employee, res judicata is inapplicable. Ivezaj, 

supra at 464. In this case, plaintiff’s wife and mother each filed her own 

application for attendant care benefits. As a result, under Ivezaj, supra, we 

find no legal error in the WCAC’s conclusion that the doctrine of res 

judicata was inapplicable to the magistrate’s granting of payment for 

attendant care to plaintiff’s wife and mother. 

Furthermore, the holding in Ivezaj, supra, notwithstanding, we find 

res judicata to be inapplicable because there has been a change in plaintiff’s 

condition since the initial proceedings. As noted in Banks, supra, a claimant 

may later raise a different claim or modify an existing award if the 

employee’s physical condition worsens. This is consistent with the general 

principle that res judicata is not a bar to a subsequent action where facts 

change or new facts develop. See In re Hamlet (After Remand), 225 Mich 

App 505, 519; 571 NW2d 750 (1997), overruled in part on other grounds, 

462 Mich 341 (2000). Here, plaintiff testified that his condition had 

worsened since 2001, and that was less able to care for himself than he was 

the last time he testified. Therefore, due to a change in facts, specifically 

the worsening of plaintiff’s condition, the issue of plaintiff’s current need 

for attendant care was not an issue that was, or even could have been, 

adjudicated in the initial proceedings.2

 Affirmed. 

 _____________________________________________________________ 1 Gee v Arthur B. Myr Industries, Inc, unpublished order of the Court of 

Appeals, entered August 29, 2005 (Docket No. 262691). 

2

 Defendant claims that the magistrate and the WCAC erred in relying upon 

Barnowsky, supra. However, because we find res judicata to be 

inapplicable notwithstanding Barnowsky, supra, we need not address this 

claim. 

 _____________________________________________________________ 
 _________________________________________ 

 

6

 KELLY, J., dissents and states as follows: 

The workers’ compensation magistrate found that the award was based on the 

applications for attendant-care benefits filed by plaintiff’s wife and mother. Not until it 

applied for leave in this Court did defendant argue that the magistrate erroneously relied 

on these applications. Therefore, I would not reverse on this basis. I would affirm the 

judgment of the Court of Appeals. 

d0409 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

April 9, 2008 

 Clerk