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STATE OF MICHIGAN
COURT OF APPEALS


DELBERT SCHEUNEMAN, Plaintiff-Appellant, v GENERAL MOTORS CORPORATION, Defendant-Appellee.

UNPUBLISHED January 8, 1999

No. 199831 WCAC LC No. 92-000060

Before: Sawyer, P.J., and Kelly and Doctoroff, JJ. PER CURIAM. This case has been remanded by our Supreme Court for consideration as on leave granted. Plaintiff Delbert Scheuneman appeals a decision entered on August 16, 1995 by the Worker's Compensation Appellate Commission (WCAC) affirming a decision of the magistrate and holding that defendant General Motors Corporation was allowed to coordinate benefits. We reverse and remand for further proceedings. Plaintiff was granted an open award of worker's compensation benefits in the amount of $177.22 per week. Defendant raised the defense of coordination of benefits in its answer to plaintiff's petition; however, the parties did not litigate the issue at trial, and the magistrate's decision did not address the issue of coordination of benefits. That decision was not appealed. When calculating the accrued compensation owed to plaintiff, defendant coordinated plaintiff's worker's compensation benefits against the mutual pension that he received. The coordination resulted in no worker's compensation benefits being paid to plaintiff. Plaintiff sought a hearing, alleging that defendant was not paying benefits in accordance with the magistrate's decision. The matter was submitted to a different magistrate. That magistrate rejected plaintiff's argument. The magistrate concluded that because plaintiff received an employer-funded "mutual" pension, i.e., a pension agreed to by the parties when the employee is not eligible for a regular retirement pension, and is deemed to be ineligible for a disability pension, defendant was permitted to coordinate benefits pursuant to MCL 418.354(1)(d); MSA 17.237(354)(1)(d). The magistrate cited Franks v White Pine Copper Div ,

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422 Mich 636; 375 NW2d 715 (1985), for the proposition that defendant was not required to prevail at a hearing before it could coordinate benefits. The WCAC affirmed the decision of the magistrate. The WCAC rejected plaintiff's argument that the doctrine of res judicata precluded application of the coordination provisions of

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