MICHAEL PETSCH SS# xxx Plaintiff,
v.
CONVENTION & SHOW SERVICES, And CITIZENS INSURANCE COMPANY OF AMERICA, Defendant
No. 2006-420
Michigan Workers Compensation
State of Michigan Department of Labor & Economic Growth Workers’ Compensation Agency Board of Magistrates
June 1, 2006
The
social security number and dates of birth have been redacted
from this opinion.
TRIAL
DATE A motion to dismiss plaintiff’s application for
hearing was heard on 5/23/06.
PLAINTIFF ROBERT S.STRAGER (P) 30896
DEFENDANTS ROBERT F. AULD (P) 10300
JOY
TURNER, MAGISTRATE (226G), JUDGE
CLAIM
Plaintiff,
by Application for Mediation or Hearing – Form A, filed
on 1/11/05 alleged plaintiff was being paid weekly workers
compensation benefits at the improper rate. Defendant
subsequently filed a motion to dismiss plaintiff’s
application on the basis the issue of average weekly wage and
workers compensation benefit rate is res judicata based on a
decision by Magistrate MacLean which was mailed on September
11, 2003 and affirmed by the Appellate Commission in a
decision mailed on July 14, 2004. Defendant’s motion is
granted.
The
parties each submitted briefs and requested oral argument on
May 23, 2006. Defendant argued that in October 2001 plaintiff
filed an application for hearing requesting Magistrate
MacLean should apply the special circumstances provision of
MCL 418.373 (6) because application of MCL 418.371 (3) did
not result in a fair or accurate representation of
plaintiff’s actual average weekly wage.
The
parties stipulated to a set of facts for Magistrate MacLean.
Among the facts stipulated were that plaintiff’s
average weekly wage under MCL 418.371 (3) was $779.32.
Defendant cites Hlady v Wolverine Bold, 393 Mich.
368 (1975 for the proposition that res judicata bars all
claims that were or could have been raised in the prior
action and Gose v Monroe Auto Equipment 409 Mich.
1980 that the same question cannot be litigated twice.
Plaintiff
argues that the issue before Magistrate MacLean was whether
the special circumstances...
