Opinion
Docket No. 99822.
Decided September 10, 1987. Leave to appeal granted, 429 Mich. ___.
Bockoff Zamler, P.C. (by Anne K. Flaherty and Daryl Royal), for plaintiff.
Law Offices of Walter W. Gallaher, P.C. (by Walter W. Gallaher), and Grahame G. Capp, of Counsel, for defendant.
Before: CYNAR, P.J., and WAHLS and HOOD, JJ.
This case is again before us on remand from the Supreme Court to consider whether Gusler v Fairview Tubular Products, 412 Mich. 270; 315 N.W.2d 388 (1981), should be given retroactive effect in light of Riley v Northland Geriatric Center, 425 Mich. 668, 671; 391 N.W.2d 331 (1986). 428 Mich. 875 (1987).
Plaintiff was employed by defendant as a teacher's aide. Plaintiff was injured on May 30, 1978, while in defendant's employ. Her injury occurred when she fell down a flight of stairs. She complained of back and left leg pain and was immediately transported to a hospital. The final diagnosis was a "displaced fracture of tip of sacrum and coccyx."
Plaintiff received workers' compensation benefits from May, 1978, until October, 1978. Benefits were reinstated in January, 1979, until October 4, 1979. On February 9, 1981, a hearing referee found that plaintiff was entitled to continuing compensation benefits. Defendant appealed and on July 10, 1985, the Workers' Compensation Appeal Board determined that plaintiff was disabled and that she was entitled to benefits. The WCAB also indicated that it was reluctantly applying the minimum rate set forth in Jolliff v American Advertising Distributors, Inc, 49 Mich. App. 1; 211 N.W.2d 260 (1973), lv den 391 Mich. 780 (1974), to the case.
We are in accord with Justice LEVIN'S separate opinion in Riley that Gusler would apply to cases decided before December 30, 1981 (the date Gusler was decided) as to payments made after that date. The Gusler opinion itself sets out the application of its holding.
Although our holding is based on what we perceive to have been the intent of the Legislature at the time of enactment of the provisions discussed, in practical effect, given the contrary interpretations of the law by the Director of the Bureau of Workers' Compensation and the bureau's subdivisions, the Workers' Compensation Appeal Board and its hearing referees, and the Court of Appeals, today's holding is not unlike the announcement of a new rule of law. Its application therefore should be treated accordingly. See Whetro v Awkerman, 383 Mich. 235; 174 N.W.2d 783 (1970); Parker v Port Huron Hospital, 361 Mich. 1; 105 N.W.2d 1 (1960); Bricker v Green, 313 Mich. 218; 21 N.W.2d 105 (1946).
In the interest of fairness we do not believe our holding should affect any disability compensation payments already made. Consequently, no recipient will be obligated to repay sums already received by reason of the erroneous computation formula we have nullified today. However, any benefits due and not yet paid or to be awarded after the date of this opinion shall be in accord with this ruling. [ Gusler, supra, p 298.]
The plain language of Gusler mandates that insurers be relieved from the misconstruction of § 355 as of December 30, 1981, but, in fairness to recipients, specifies that no repayment need be made for past sums erroneously paid. If not for these specific instructions in Gusler we would agree with Riley v Northland Geriatric Center (On Remand), 160 Mich. App. 507; 408 N.W.2d 489 (1987), which held that Gusler would only apply to all cases begun after December 30, 1981, or to cases pending in the workers' compensation bureau, the WCAB, or an appellate court in which the issue of § 355 reductions was raised. See also Juncaj v C H Industries, 161 Mich. App. 724; 411 N.W.2d 839 (1987).
Accordingly, we adhere to our previous opinion which affirmed in part and reversed in part the decision of the WCAB.