two-year-back rule in Michigan

1991Therefore, we find that becasue [sic] the two-year-back rule operates as a statute of limitations ... as in Kleinschrodt [v General Motors Corp, 402 Mich *175 381; 263 NW2d 246 (1978)], Ford’s failure to raise the issue before the administrative law judge constituted a waiver.

1986In this workers’ compensation case, we address one major question: Should the rule of Kleinschrodt v General Motors Corp, 402 Mich 381 ; 263 NW2d 246 (1978), reh den 402 Mich 965 (1978), governing the proper interpretation of the one-year-back rule, MCL 418.833(1); MSA 17.237(833X1), and, as applied by analogy, the two-year-back rule, MCL 418.381(2); MSA 17.237(381X2), be modified or overruled?

1986Citing Kleinschrodt, the Court of Appeals held, Defendants’ failure to raise this defense constitutes a waiver of the statute’s protections and precludes the wcab from raising it sua sponte. [Id., p 744.] In Bordas v Detroit General Hospital, 100 Mich App 31, 33 ; 298 NW2d 655 (1980), the Court of Appeals construed the two-year-back rule, implicitly applying the Kleinschrodt rule by analogy without ever citing that case.

1986Citing Kleinschrodt, the Court of Appeals held, Defendants’ failure to raise this defense constitutes a waiver of the statute’s protections and precludes the wcab from raising it sua sponte. [Id., p 744.] In Bordas v Detroit General Hospital, 100 Mich App 31, 33 ; 298 NW2d 655 (1980), the Court of Appeals construed the two-year-back rule, implicitly applying the Kleinschrodt rule by analogy without ever citing that case.

1985Cavan agh, J., took no part in the decision of Franks._ The majority also cites other cases in n 27 that have applied the Kleinschrodt rationale to the two-year-back rule including Howard v General Motors Corp, 132 Mich App 639 ; 348 NW2d 286 (1984), remanded on other grounds 419 Mich 948 (1984), and Kingery v Ford Motor Co, 116 Mich App 606 ; 323 NW2d 318 (1982).

1985Cavan agh, J., took no part in the decision of Franks._ The majority also cites other cases in n 27 that have applied the Kleinschrodt rationale to the two-year-back rule including Howard v General Motors Corp, 132 Mich App 639 ; 348 NW2d 286 (1984), remanded on other grounds 419 Mich 948 (1984), and Kingery v Ford Motor Co, 116 Mich App 606 ; 323 NW2d 318 (1982).

2000Brecht v Save-Way Food Center, 407 Mich 743 ; 288 NW2d 576 (1980). [ 231 Mich App 269 .] See also 231 Mich App 307 (opinion of Whitbeck, J., concurring). 10 Profit v Citizens Ins Co of America, 444 Mich 281 ; 506 NW2d 514 (1993). 11 1 Blackstone, Commentaries (3d ed, 1884), p 69.

2000Brecht v Save-Way Food Center, 407 Mich 743 ; 288 NW2d 576 (1980). [ 231 Mich App 269 .] See also 231 Mich App 307 (opinion of Whitbeck, J., concurring). 10 Profit v Citizens Ins Co of America, 444 Mich 281 ; 506 NW2d 514 (1993). 11 1 Blackstone, Commentaries (3d ed, 1884), p 69.

1985Const 1963, art 4, § 27. [4] 1981 PA 194 , MCL 418.801; MSA 17.237(801). [5] Selk v Detroit Plastic Products (On Resubmission), supra (LEVIN, J., dissenting ). [6] General Motors does not in these cases seek to have the amendment given effect as of January 1, 1982. [7] See 1943 PA 245 considered in Tarnow v Railway Express Agency, supra, 1960 PA 75 considered in Hansen-Snyder Co v General Motors Corp, supra, 1974 PA 337 considered in Hughes v Judges' Retirement Bd, supra, p 85, and 1965 PA 240 considered in Ballog v Knight Newspapers, Inc, supra . [8] See ns 1 and 2. [9] See Lahti v Fosterling

1985Const 1963, art 4, § 27. [4] 1981 PA 194 , MCL 418.801; MSA 17.237(801). [5] Selk v Detroit Plastic Products (On Resubmission), supra (LEVIN, J., dissenting ). [6] General Motors does not in these cases seek to have the amendment given effect as of January 1, 1982. [7] See 1943 PA 245 considered in Tarnow v Railway Express Agency, supra, 1960 PA 75 considered in Hansen-Snyder Co v General Motors Corp, supra, 1974 PA 337 considered in Hughes v Judges' Retirement Bd, supra, p 85, and 1965 PA 240 considered in Ballog v Knight Newspapers, Inc, supra . [8] See ns 1 and 2. [9] See Lahti v Fosterling

1986We turn now to the more substantive issue regarding application of the two-year-back rule. ii The two-year-back rule provides: Except as provided in subsection (3)[ 1 ] if any compensation is sought under this act, payment shall not be made for any period of time earlier than 2 years immediately preceding the date on which the employee filed an application for a hearing with the bureau. [MCL 418.381(2); MSA 17.237(381)(2).] The purpose of the two-year-back rule "is to provide notice to the employer and to prevent stale claims . . . .” Fuchs v General Motors Corp, 118 Mich App 547, 554 ; 325 NW

1986We turn now to the more substantive issue regarding application of the two-year-back rule. ii The two-year-back rule provides: Except as provided in subsection (3)[ 1 ] if any compensation is sought under this act, payment shall not be made for any period of time earlier than 2 years immediately preceding the date on which the employee filed an application for a hearing with the bureau. [MCL 418.381(2); MSA 17.237(381)(2).] The purpose of the two-year-back rule "is to provide notice to the employer and to prevent stale claims . . . .” Fuchs v General Motors Corp, 118 Mich App 547, 554 ; 325 NW

1986We turn now to the more substantive issue regarding application of the two-year-back rule. ii The two-year-back rule provides: Except as provided in subsection (3)[ 1 ] if any compensation is sought under this act, payment shall not be made for any period of time earlier than 2 years immediately preceding the date on which the employee filed an application for a hearing with the bureau. [MCL 418.381(2); MSA 17.237(381)(2).] The purpose of the two-year-back rule "is to provide notice to the employer and to prevent stale claims . . . .” Fuchs v General Motors Corp, 118 Mich App 547, 554 ; 325 NW

1986We turn now to the more substantive issue regarding application of the two-year-back rule. ii The two-year-back rule provides: Except as provided in subsection (3)[ 1 ] if any compensation is sought under this act, payment shall not be made for any period of time earlier than 2 years immediately preceding the date on which the employee filed an application for a hearing with the bureau. [MCL 418.381(2); MSA 17.237(381)(2).] The purpose of the two-year-back rule "is to provide notice to the employer and to prevent stale claims . . . .” Fuchs v General Motors Corp, 118 Mich App 547, 554 ; 325 NW

1986The Court reasoned: We do not read the [one-year-back provision] as a statute of limitations, but rather as a limit on the Workmen’s Compensation Appeal Board’s authority to order the payment of benefits. [Id., p 62.] The Bordas Court cited no authority for its assertion that the two-year-back rule "is similar to the statute of limitations.” Yet, it went out of its way to distinguish Lynch, supra, p 173 , which had held that the one-year-back rule "expressly limited” "the power of the commission to award compensation.” Lynch was distinguished on the grounds that (1) it involved the one-year-ba

1986The Court reasoned: We do not read the [one-year-back provision] as a statute of limitations, but rather as a limit on the Workmen's Compensation Appeal Board's authority to order the payment of benefits. [ Id., p 62.] [7] The Bordas Court cited no authority for its assertion that the two-year-back rule "is similar to the statute of limitations." Yet, it went out of its way to distinguish Lynch, supra, p 173 , which had held that the one-year-back rule "expressly limited" "the power of the commission to award compensation." Lynch was distinguished on the grounds that (1) it involved the one-ye

1986The wcab did not err in declining to apply the two-year-back rule. [Id., p 615.] The Court of Appeals also applied Kleinschrodt, without discussion, in Franks v White Pine Copper Div, 122 Mich App 177 ; 332 NW2d 447 (1982), rev’d 422 Mich 636 ; 375 NW2d 715 (1985).

1986The wcab did not err in declining to apply the two-year-back rule. [Id., p 615.] The Court of Appeals also applied Kleinschrodt, without discussion, in Franks v White Pine Copper Div, 122 Mich App 177 ; 332 NW2d 447 (1982), rev’d 422 Mich 636 ; 375 NW2d 715 (1985).

2000Wozniak v General Motors Corp (After Remand), 212 Mich App 40 ; 536 NW2d 841 (1995).

2000Wozniak v General Motors Corp (After Remand), 212 Mich App 40 ; 536 NW2d 841 (1995).

2000Brecht v Save-Way Food Center, 407 Mich 743 ; 288 NW2d 576 (1980). [ 231 Mich App 269 .] See also 231 Mich App 307 (opinion of Whitbeck, J., concurring). 10 Profit v Citizens Ins Co of America, 444 Mich 281 ; 506 NW2d 514 (1993). 11 1 Blackstone, Commentaries (3d ed, 1884), p 69.

2000Brecht v Save-Way Food Center, 407 Mich 743 ; 288 NW2d 576 (1980). [ 231 Mich App 269 .] See also 231 Mich App 307 (opinion of Whitbeck, J., concurring). 10 Profit v Citizens Ins Co of America, 444 Mich 281 ; 506 NW2d 514 (1993). 11 1 Blackstone, Commentaries (3d ed, 1884), p 69.

1995In Franklin v Ford Motor Co, 197 Mich App 367, 370-371 ; 495 NW2d 802 (1992), this Court held that the two-year-back rule applies to. the payment of medical benefits, as well as regular compensation benefits.

1995In Franklin v Ford Motor Co, 197 Mich App 367, 370-371 ; 495 NW2d 802 (1992), this Court held that the two-year-back rule applies to. the payment of medical benefits, as well as regular compensation benefits.

1994See, generally, Pike, supra at 600-602 ; Riley v Northland Geriatric Center (After Remand), 431 Mich 632, 640 ; 433 NW2d 787 (1988) (opinion of GRIFFIN, J.) (recognizing that an employee's future rate of worker's compensation benefits is subject to change, triggered by factors other than the physical condition of the employee). [6] See also Riley , n 5 supra at 653 (opinion of BOYLE, J.) ("there was no final judgment in Moore [ v Detroit Bd of Ed (After Remand), a companion case to Riley ] and therefore the doctrine of res judicata is inapplicable"). [7] Although we hold today that the order a

1994See, generally, Pike, supra at 600-602 ; Riley v Northland Geriatric Center (After Remand), 431 Mich 632, 640 ; 433 NW2d 787 (1988) (opinion of GRIFFIN, J.) (recognizing that an employee's future rate of worker's compensation benefits is subject to change, triggered by factors other than the physical condition of the employee). [6] See also Riley , n 5 supra at 653 (opinion of BOYLE, J.) ("there was no final judgment in Moore [ v Detroit Bd of Ed (After Remand), a companion case to Riley ] and therefore the doctrine of res judicata is inapplicable"). [7] Although we hold today that the order a

1994NOTES [1] In Kushay v Sexton Dairy Co, 394 Mich 69, 74 ; 228 NW2d 205 (1975), this Court recognized that a spouse who performs necessary services for an injured employee is entitled to compensation. [2] MCL 418.864; MSA 17.237(864). [3] In the Court of Appeals defendants also challenged retroactive application of the ordered increase in the compensation rate for nursing care, and further argued that any modification is limited by the one-year-back rule, MCL 418.833(1); MSA 17.237(833)(1), or by the two-year-back rule, MCL 418.381(2); MSA 17.237(381)(2), as amended by 1980 PA 357 . [4] Unpublis

1994NOTES [1] In Kushay v Sexton Dairy Co, 394 Mich 69, 74 ; 228 NW2d 205 (1975), this Court recognized that a spouse who performs necessary services for an injured employee is entitled to compensation. [2] MCL 418.864; MSA 17.237(864). [3] In the Court of Appeals defendants also challenged retroactive application of the ordered increase in the compensation rate for nursing care, and further argued that any modification is limited by the one-year-back rule, MCL 418.833(1); MSA 17.237(833)(1), or by the two-year-back rule, MCL 418.381(2); MSA 17.237(381)(2), as amended by 1980 PA 357 . [4] Unpublis

1993In Kapala v Orville Frank Roofing Co, 172 Mich App 724 ; 432 NW2d 417 (1988), this Court held that the two-year-back rule in § 381(2) was retroactive and barred the plaintiffs recovery of benefits for any period of time earlier than two years immediately preceding the date that the plaintiff filed an application for a hearing with the bureau, even though plaintiffs claim for the death of her husband was filed on June 4, 1979, before the January 1, 1982, effective date of the amendment *175 of § 381(2) that expanded its application from "weekly benefits” to "any compensation.” The similarity be

1993In Kapala v Orville Frank Roofing Co, 172 Mich App 724 ; 432 NW2d 417 (1988), this Court held that the two-year-back rule in § 381(2) was retroactive and barred the plaintiffs recovery of benefits for any period of time earlier than two years immediately preceding the date that the plaintiff filed an application for a hearing with the bureau, even though plaintiffs claim for the death of her husband was filed on June 4, 1979, before the January 1, 1982, effective date of the amendment *175 of § 381(2) that expanded its application from "weekly benefits” to "any compensation.” The similarity be

1992Before making this determination, however, we must first decide whether 1980 PA 357 , which became effective January 1, 1982, applies retroactively to claims for injuries incurred before the effective date of the amendment. 2 The general rule is that the law in effect at the *369 time the injury occurred controls. 3 Nicholson v Lansing Bd of Ed, 423 Mich 89, 93 ; 377 NW2d 292 (1985); Jones v Dee Cramer, Inc, 166 Mich App 410, 416 ; 420 NW2d 843 (1988).

1992Before making this determination, however, we must first decide whether 1980 PA 357 , which became effective January 1, 1982, applies retroactively to claims for injuries incurred before the effective date of the amendment. 2 The general rule is that the law in effect at the *369 time the injury occurred controls. 3 Nicholson v Lansing Bd of Ed, 423 Mich 89, 93 ; 377 NW2d 292 (1985); Jones v Dee Cramer, Inc, 166 Mich App 410, 416 ; 420 NW2d 843 (1988).

1992The referee decided the case before the amendment, but the wcab decided the case after the effective date of the amendment. 4 The wcab held with regard to medical benefits: [T]he application of the two-year back rule, MCL 418.381(2) [MSA 17.237(381X2)], bars weekly benefits but not medical benefits for any period prior to January 22, 1978, plaintiff having filed his first Petition for Hearing on January 22, 1980. 5 This conclusion is supported by the Supreme Court’s holding in Dornbos v Bloch & Guggenheimer, Inc, 326 Mich 626 ; 40 NW2d 749 (1950), that "compensation” encompasses all forms of p

1992The referee decided the case before the amendment, but the wcab decided the case after the effective date of the amendment. 4 The wcab held with regard to medical benefits: [T]he application of the two-year back rule, MCL 418.381(2) [MSA 17.237(381X2)], bars weekly benefits but not medical benefits for any period prior to January 22, 1978, plaintiff having filed his first Petition for Hearing on January 22, 1980. 5 This conclusion is supported by the Supreme Court’s holding in Dornbos v Bloch & Guggenheimer, Inc, 326 Mich 626 ; 40 NW2d 749 (1950), that "compensation” encompasses all forms of p

1992Before making this determination, however, we must first decide whether 1980 PA 357 , which became effective January 1, 1982, applies retroactively to claims for injuries incurred before the effective date of the amendment. 2 The general rule is that the law in effect at the *369 time the injury occurred controls. 3 Nicholson v Lansing Bd of Ed, 423 Mich 89, 93 ; 377 NW2d 292 (1985); Jones v Dee Cramer, Inc, 166 Mich App 410, 416 ; 420 NW2d 843 (1988).

1992Before making this determination, however, we must first decide whether 1980 PA 357 , which became effective January 1, 1982, applies retroactively to claims for injuries incurred before the effective date of the amendment. 2 The general rule is that the law in effect at the *369 time the injury occurred controls. 3 Nicholson v Lansing Bd of Ed, 423 Mich 89, 93 ; 377 NW2d 292 (1985); Jones v Dee Cramer, Inc, 166 Mich App 410, 416 ; 420 NW2d 843 (1988).

1988Subsequent to the November 20, 1986, determination of the wcab in this action, the Supreme Court decided Howard v General Motors Corp, 427 Mich 358 ; 399 NW2d 10 (1986), on December 26, 1986.

1988Subsequent to the November 20, 1986, determination of the wcab in this action, the Supreme Court decided Howard v General Motors Corp, 427 Mich 358 ; 399 NW2d 10 (1986), on December 26, 1986.

1986Just as the statute of limitations is tolled when suit is filed, so is the two-year-back rule. *378 Without discussing Kleinschrodt, the panel distinguished Lynch . [7] A minority of this Court disapproved of expanding Kleinschrodt in Piwowarski v Detroit Sulphite Pulp & Paper Co, 412 Mich 716 ; 316 NW2d 719 (1982), which construed the one-year-back rule.

1986Just as the statute of limitations is tolled when suit is filed, so is the two-year-back rule. *378 Without discussing Kleinschrodt, the panel distinguished Lynch . [7] A minority of this Court disapproved of expanding Kleinschrodt in Piwowarski v Detroit Sulphite Pulp & Paper Co, 412 Mich 716 ; 316 NW2d 719 (1982), which construed the one-year-back rule.

1986The wcab did not err in declining to apply the two-year-back rule. [Id., p 615.] The Court of Appeals also applied Kleinschrodt, without discussion, in Franks v White Pine Copper Div, 122 Mich App 177 ; 332 NW2d 447 (1982), rev’d 422 Mich 636 ; 375 NW2d 715 (1985).

1986The wcab did not err in declining to apply the two-year-back rule. [Id., p 615.] The Court of Appeals also applied Kleinschrodt, without discussion, in Franks v White Pine Copper Div, 122 Mich App 177 ; 332 NW2d 447 (1982), rev’d 422 Mich 636 ; 375 NW2d 715 (1985).

1986On the facts of this case, where the record is devoid of any compelling explanation for defendant’s failure to raise the applicability of the two-year-back rule before the hearing officer, we find no abuse of the wcab’s discretion. [Howard, supra, p 647 .] Defendant applied for leave to appeal in this Court, and it was denied November 9, 1984, except that the case was remanded to the Workers’ Compensation Appeal Board ( 419 Mich 948 [1984]) for any recomputation of the interest part of the award in light of Selk v Detroit Plastic Products (On Resubmission), 419 Mich 32 ; 348 NW2d 652 (1984).

1986On the facts of this case, where the record is devoid of any compelling explanation for defendant’s failure to raise the applicability of the two-year-back rule before the hearing officer, we find no abuse of the wcab’s discretion. [Howard, supra, p 647 .] Defendant applied for leave to appeal in this Court, and it was denied November 9, 1984, except that the case was remanded to the Workers’ Compensation Appeal Board ( 419 Mich 948 [1984]) for any recomputation of the interest part of the award in light of Selk v Detroit Plastic Products (On Resubmission), 419 Mich 32 ; 348 NW2d 652 (1984).

1986In this workers’ compensation case, we address one major question: Should the rule of Kleinschrodt v General Motors Corp, 402 Mich 381 ; 263 NW2d 246 (1978), reh den 402 Mich 965 (1978), governing the proper interpretation of the one-year-back rule, MCL 418.833(1); MSA 17.237(833X1), and, as applied by analogy, the two-year-back rule, MCL 418.381(2); MSA 17.237(381X2), be modified or overruled?

1986In this workers' compensation case, we address one major question: Should the rule of Kleinschrodt v General Motors Corp, 402 Mich 381 ; 263 NW2d 246 (1978), reh den 402 Mich 965 (1978), governing the proper interpretation of the one-year-back rule, MCL 418.833(1); MSA 17.237(833)(1), and, as applied by analogy, the two-year-back rule, MCL 418.381(2); MSA 17.237(381)(2), be modified or overruled?

1985Id., pp 385-386, citing Loucks v Bauman, 356 Mich 514 ; 97 NW2d 321 (1959), and Baldwin v Chrysler Corp, 67 Mich App 61 ; 240 NW2d 266 (1976). [27] The Court of Appeals has applied the rationale of the Kleinschrodt majority to the two-year back rule, holding that it is "akin to a statute of limitations" and is waivable, not jurisdictional.

1985Id., pp 385-386, citing Loucks v Bauman, 356 Mich 514 ; 97 NW2d 321 (1959), and Baldwin v Chrysler Corp, 67 Mich App 61 ; 240 NW2d 266 (1976). [27] The Court of Appeals has applied the rationale of the Kleinschrodt majority to the two-year back rule, holding that it is "akin to a statute of limitations" and is waivable, not jurisdictional.

1985Id., pp 385-386, citing Loucks v Bauman, 356 Mich 514 ; 97 NW2d 321 (1959), and Baldwin v Chrysler Corp, 67 Mich App 61 ; 240 NW2d 266 (1976). [27] The Court of Appeals has applied the rationale of the Kleinschrodt majority to the two-year back rule, holding that it is "akin to a statute of limitations" and is waivable, not jurisdictional.

1985Id., pp 385-386, citing Loucks v Bauman, 356 Mich 514 ; 97 NW2d 321 (1959), and Baldwin v Chrysler Corp, 67 Mich App 61 ; 240 NW2d 266 (1976). [27] The Court of Appeals has applied the rationale of the Kleinschrodt majority to the two-year back rule, holding that it is "akin to a statute of limitations" and is waivable, not jurisdictional.

1982See Miller v Dunn Paper Co, 47 Mich App 471 ; 209 NW2d 519 (1973), Chisholm v Chisholm Construction Co, 298 Mich 25 ; 298 NW 390 (1941).

1982See Miller v Dunn Paper Co, 47 Mich App 471 ; 209 NW2d 519 (1973), Chisholm v Chisholm Construction Co, 298 Mich 25 ; 298 NW 390 (1941).

1980Gomez v Campbell, Wyant & Cannon Foundry, 78 Mich App 145 ; 259 NW2d 400 (1977).

1980Gomez v Campbell, Wyant & Cannon Foundry, 78 Mich App 145 ; 259 NW2d 400 (1977).