Michigan Supreme Court 

# Order

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.

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On January 9, 2008, the Court heard oral argument on the application for leave to appeal the March 15, 2007 judgm ent of the Court of Appeals. On order of the Court, the application is again considered . MCR 7.302(G)(1). In lieu of granting leav e to appeal, we REVERSE the judgment of the Court of Ap peals that res judicata did not bar the plaintiff’s second applicati on for attendant care benefits . The Worker’s Compensation Appellate Commission denied the plaintiff’s in itial claim because the plaintiff failed to present proof on a required element of that cl aim. 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 co ncluding that this case is governed by Ivezaj v Federal Mogul (On Remand), 197 Mich App 462 (1992). Th e record shows that the

award of attendant care benefits was based on an applicati on 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 No vember 18, 2003, two months after the magistrate’s decision was mail ed 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 provid ers’ applications were filed. See MCL 418.381(3). And third, none of the case captions in the lowe r courts have listed the care providers as parties, and the care providers did not testify at the hear ing on the plaintiff’s second application. As a resu lt, the plaintiff’s second claim is barred by res judicata.2

W EAVER , 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 reas ons stated in the Court of Appeals opinion, Gee v Arthur B. Myr Industries, Inc , unpublished opin ion 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 af firmed a magistrate’s award of

attendant care benefits. We affirm. Th is appeal is being decided without oral argument pursuant to MCR 7.214(E).

The WCAC summarized the pr ocedural history of this case as follows:

“Plaintiff initially in jured his low back in the course of his employment with defendant on August 10, 1992. Benefits for that injury were paid voluntarily. Plaintiff file d an Application for Mediation or Hearing with the Bu reau on March 27, 2000, clai ming 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, ongo ing disability resulting therefrom, further finding reflex sympathetic dystrophy (RSD) to be related to the 8/10/92 injury and awarded total and perman ent disability benefits (T&P). The magistrate also ordered ‘reasonable me dical treatment related to plaintiff’s injury.’ Testimony on this issue of atte ndant care was taken at that time. However, the magistrate made no specif ic findings pertaining to attendant

care.

“Both parties appealed the magistra te’s July 9, 2001 decision to theCommission. 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, ma iled July 9, 2001, granting plaintiff total and permanent disa bility 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 rulin g on plaintiff’s request for

attendant care benefits. To rec tify 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 for3

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 provid ed 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 th e cost. Without that proof, the magistrate properly exclude d attendant care benefits. Recognizing his failure in proving the reasonableness of the attendant care, plaintiff request s a remand that allows him to enter the necessary proofs. Such remand would improperly advantage plaintiff and disadvan tage 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 deni ed 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 he aring 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 mo bility. 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. Pl aintiff indicated that he did not want strangers in his home, and requested that the care his mother, wife, and daughter provided be recognized as co mpensable 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, c ontrary to defendant’s contention, the applications for attendant care bene fits 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 a nd 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 applica tion 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; 72 0 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 worker s’ 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’ compensatio n 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 Co mpensation, § 508. However, a claimant may later raise a different clai m or modify an existing award if the employee’s physical condition worsens. Hlady, supra at 376. These rules presuppose that some cl aims, although originating before the final award,5

are not ‘adjudicable’ or ‘availabl e’ 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 empl oyee in his or her own name, and not as a subrogee of the injured employe e, 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 co nclusion that the doctrine of res judicata was inapplicable to the ma gistrate’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 pr oceedings. 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. Th is is consistent with the general principle that res judicata is not a ba r 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), ov erruled 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 th at was, or even could have been, adjudicated in the initial proceedings. 2

Affirmed.

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______________________________ ____________ 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, becau se we find res judicata to be inapplicable notwithstanding Barnowsky, supra, we need not address this

claim.

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K ELLY , J., dissents and states as follows:

The workers’ compensation magistrate found that the award was based on the applications for attendant-care benefits file d by plaintiff’s wife an d mother. Not until it applied for leave in this Cour t did defendant argue that the magistrate erroneously relied on these applications. Therefore, I would no t reverse on this basis. I would affirm the judgment of the Court of Appeals.

d0409 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

April 9, 2008

Clerk