Welch v. Chrysler Corp.

231 N.W.2d 531, 60 Mich. App. 732, 1975 Mich. App. LEXIS 1491

• Court: Michigan Court of Appeals
• Decided: April 28, 1975
• Docket: Docket No. 20726
• Status: Published

Opinions

R. M. Maher, J.

This appeal from an order of the Workmen’s Compensation Appeal Board is before the Court a second time. Plaintiff initially sought benefits under the Workmen’s Compensation Act for the disability and death of her husband. The hearing referee denied the death claim but granted the disability claim. The Workmen’s Compensation Appeal Board affirmed the referee’s decision denying death benefits but reversed with respect to the disability claim. This Court, in an unpublished per curiam opinion, affirmed the appeal board’s decision as to both the death claim and the disability claim. Welch v Chrysler Corp, (No. 13873, released March 2, 1973).

In its opinion, the Court of Appeals rejected plaintiff’s claim of error that she did not receive a copy of defendant’s reply brief and cross-appeal in the proceedings before the appeal board. The Supreme Court granted leave to appeal and remanded the matter to the Workmen’s Compensation Appeal Board "for further proceedings in order to afford plaintiff-appellant reasonable opportunity to reply to defendant-appellee’s cross-appeal”. Welch v Chrysler Corp, 389 Mich 800 (1973). The Supreme Court did not retain jurisdiction.

On remand, the appeal board reaffirmed and adopted its previous opinion. This Court granted plaintiff leave to appeal limited to the issue of decedent’s disability from December 10, 1965 to November 7, 1966.

No new evidence was presented to the appeal board on remand. The facts before us, therefore, are the same as those before this Court in 1973 when the issue of decedent’s disability from December 10, 1965 to November 7, 1966, was decided in the following manner:

"We recognize that job disability involving pre-existing disease of unrelated origin may involve questions of both law and fact. An examination of the record discloses testimony from which the Appeal Board could well conclude that at the time decedent last worked, he had become unemployable because of heart disease and that it was not only work but the ordinary physical activities of day to day living that overburdened his

heart. The Appeal Board having found against the burden-bearing claimant, she must, to sustain her appeal establish that there was no question of fact and that the proof entitled her to an award as a matter of law. From our examination of the record, we are not so persuaded.” Welch v Chrysler Corp, supra, p 3 (Citation omitted.)

The general principle with which we are concerned in a situation such as this is labeled "law of the case”. The case of Topps — Toeller, Inc v Lansing, 47 Mich App 720, 727-728; 209 NW2d 843 (1973), lv den, 390 Mich 788 (1973), explains that principle as follows:

"The law of the case may be viewed as shorthand for the holding of a prior decision between the same parties which is applied by a lower court upon remand or an appellate court upon subsequent review. The operative effect of this principle is based upon the submission of the same or similar evidence upon the second trial or appeal. White v Campbell, 25 Mich 463 (1872); Wenzel v Kieruj, 184 Mich 284 [151 NW 641] (1915); Mitchell v Reolds Farms Co, 261 Mich 615 [247 NW 89] (1933); Leland v Ford, 252 Mich 547 [233 NW 410] (1930); Watkins v Gabriel Steel Co, 268 Mich 264 [256 NW 333] (1934); Palazzolo v Sackett, 254 Mich 289 [236 NW 786] (1931).”

The Court in Topps — Toeller, supra, p 729, concluded that "law of the case offers the same parties a measure of certainty by according finality to the litigated issues until the cause of action is fully litigated, including retrials or appeals, and the superseding doctrines of res judicata and collateral estoppel become effective”.

In the present case, a prior decision by this Court, between the same parties, was appealed to the Supreme Court and remanded to the Workmen’s Compensation Appeal Board in order to afford plaintiff an opportunity to reply to defendant’s cross-appeal. Following the appeal board’s reaffirmation, this case is again before the Court of Appeals on the same evidence with respect to the same issue previously decided. That decision remains the law of the case.

Affirmed. No costs.