Bower v. Whitehall Leather Co., Docket No. 78-5290

• Decision Date: 10 October 1979
• Docket Number: Docket No. 78-5290
• Citation: 286 N.W.2d 877,93 Mich.App. 257
• Parties: Ferrell BOWER, Plaintiff-Appellee, v. WHITEHALL LEATHER COMPANY, Defendant-Appellant, and Second Injury Fund, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 877

286 N.W.2d 877

93 Mich.App. 257

Ferrell BOWER, Plaintiff-Appellee, v. WHITEHALL LEATHER COMPANY, Defendant-Appellant and Second Injury Fund, Defendant.

Docket No. 78-5290.

Court of Appeals of Michigan.

Oct. 10, 1979.

Released for Publication Jan. 29, 1980.

Jon D. Vander Ploeg, Muskegon, for defendant-appellant.

J. Walter Brock, David R. Munroe, Muskegon, for plaintiff-appellee.

Before MacKENZIE, P. J., and HOLBROOK and CYNAR, JJ.

PER CURIAM.

Defendant Whitehall Leather Company appeals by leave granted from a final order of the Worker's Compensation Appeal Board entered December 30, 1977, ordering defendant to pay plaintiff differential benefits pursuant to M.C.L. §§ 418.351 and 418.371; M.S.A. §§ 17.237(351) and 17.237(371), for continuing total disability resulting from industrial injuries to plaintiff's left knee.

Plaintiff, a long time management employee at defendant Whitehall Leather Company, suffered various injuries to his left knee, the first occurring in April of 1970. The recurring injuries caused several absences from work and with each recuperation he returned to his employment. During a union strike in the summer of 1974, when management employees performed regular labor jobs, plaintiff's knee began bothering him again. On July 19, 1974, plaintiff moved to the State of Florida and on November 30, 1974, obtained employment with a jewelry retailer as a floor guard. The instant claim is specifically for continuing weekly benefits calculated by using the differential between his earnings at Whitehall Leather and his earnings at Sam Solomon Co., his Florida employer.

Prior to the hearing on the claim on April 28, 1975, plaintiff was examined at defendant's request in order to determine if he was capable of returning to work at Whitehall Leather. As a result of the examining doctor's testimony taken three weeks before the hearing, plaintiff was given a return to work offer at the trial, which offer was refused by plaintiff. An award of the administrative law judge continuing differential benefits was appealed to the Worker's Compensation Appeal Board.

The board made specific findings that the plaintiff remains disabled from general, common labor, that defendant's offer of favored employment was reasonable and not made in bad faith, and that plaintiff was capable of performing the offered work.

The board held that plaintiff was entitled to continuing differential benefits because he reasonably refused the job offer. The board held that the refusal was reasonable because plaintiff obtained other employment which mitigated compensation payable from defendant; plaintiff's wife was employed; and a permanent new residency was established. We disagree.

The precise issue involved is set forth in the board's opinion:

"Must plaintiff accept a favored job within his capacity to perform, even if it means returning to Michigan from his new home in Florida?"

In Hope v. Welch Grape Juice Co., 46 Mich.App. 128, 207 N.W.2d 476 (1973), this Court set forth the general rule that an injured employee who refuses an offer of employment for "favored work" which the employee is capable of performing is not entitled to workmen's compensation benefits. The Court reversed the board's decision which had terminated payments because there was no specific firm offer of employment within the plaintiff's ability to perform. In Kolenko...