Brown v. Premier Mfg. Co.

• Decision Date: 23 August 1977
• Docket Number: Docket No. 29389
• Citation: 259 N.W.2d 143,77 Mich.App. 573
• Parties: Marvin BROWN, Plaintiff-Appellee, v. PREMIER MANUFACTURING COMPANY and Liberty Mutual Insurance Company, Defendants-Appellants. 77 Mich.App. 573, 259 N.W.2d 143
• Court: Court of Appeal of Michigan — District of US

Page 143

259 N.W.2d 143

Marvin BROWN, Plaintiff-Appellee, v. PREMIER MANUFACTURING COMPANY and Liberty Mutual Insurance Company, Defendants-Appellants.

Docket No. 29389.

77 Mich.App. 573, 259 N.W.2d 143

Court of Appeals of Michigan.

Aug. 23, 1977.

Released for Publication Nov. 14, 1977.

[77 MICHAPP 574] Smith, Haughey, Rice & Roegge by Lance R. Mather, Grand Rapids, for defendants-appellants.

McCroskey, Libner, Van Leuven, Kortering, Cochrane & Brock, P. C., by Timothy J. Bott, Robert O. Chessman, Muskegon, for plaintiff-appellee.

Before KELLY, P. J., and CAVANAGH and ROOD, ^* JJ.

ROOD, Judge.

This is an appeal from a decision of the Workmen's Compensation Appeal Board (hereinafter referred to as WCAB). A referee found that plaintiff was not entitled to additional benefits. The WCAB reversed and awarded plaintiff benefits in the amount of $79.84 per week, retroactive to November 18, 1974. Defendants were granted leave to appeal on October 21, 1976.

[77 MICHAPP 575] Plaintiff was injured on October 24, 1971, in the course of his employment at Premier Manufacturing Co., when struck by a falling object on the outer aspect of his right knee. He received hospital treatment but his knee continued to give problems; in December, 1971, surgery was performed for removal of a torn cartilage. He was off work for a total period of about nine weeks.

In January, 1972, plaintiff returned to Premier subject to a restriction to stay on crutches and to sit down on the job. Plaintiff was given favored employment which he did for about two weeks with no ill effects. He was given a different job, but still favored employment which he did sitting down. Later he began standing up, supposedly because his foreman told him to do so. Thereafter, plaintiff claims his knee began to bother him and he sought medical attention. In June of 1972, plaintiff voluntarily terminated his employment stating that he was taking a job in Pontiac. He did not find a job in Pontiac and made no effort to find other work after leaving Premier.

On August 15, 1972, plaintiff filed a petition alleging the injury of October 24, 1971, and claiming disability from June 26, 1972.

Surgery was again performed on plaintiff's knee in December of 1972. He was hospitalized for five days and was in a cast for five or six weeks. The petition for compensation was dismissed on April 23, 1973, when defendants agreed to pay compensation benefits.

In September of 1973, plaintiff took a job with Lansing Heat Treat. Compensation was stopped on September 21, 1973, because of his return to work.

While working for Heat Treat plaintiff suffered a back injury which was later redeemed.

[77 MICHAPP 576] On March 4, 1974, plaintiff filed the petition which initiated the instant case.

January 23, 1975, a hearing was held. At this hearing plaintiff admitted that he did not follow the program of exercise which had been prescribed for him by the surgeon who did the second operation on his knee. He also admitted that he was capable of doing the favored work for Premier and that he could go back to this job.

The hearing referee held that plaintiff was not entitled to compensation after he obtained employment with Lansing Heat Treat. His decision was based on: (1) plaintiff's termination of favored work provided by Premier, and (2) plaintiff's failure to follow the recommendations of his surgeon in order to rehabilitate his knee.

The WCAB overturned the referee, holding that even if plaintiff's termination of favored employment was unreasonable, it was overcome by the second operation on his knee. Premier's failure to reoffer favored work reinstituted his right to benefits.

The Board also held that the plaintiff's non-cooperation on medical treatments did not rise to the level of refusal to treat or accept medical treatment. (What the level of refusal is was not stated).

The issues raised on appeal are as follows:

1. Did the WCAB apply an incorrect legal standard in holding that plaintiff was entitled to benefits even if he unreasonably terminated his favored work employment?

2. Did the WCAB err in holding that plaintiff's failure to follow rehabilitative exercises did not rise to a level of refusal to treat or accept medical treatment?

3. Did the WCAB err by failing to determine the wage earning capacity of the plaintiff?

[77 MICHAPP 577] This Court is required to accept factual findings of the WCAB if "any evidence" exists in the record to support them. This Court may, however, correct erroneous rulings of law. See, e. g., Higgins v. Monroe Evening News, 70 Mich.App. 407, 412, 245 N.W.2d 769 (1976).

1. As to the first issue, the WCAB held that, assuming plaintiff's termination of favored employment was unreasonable, this would not be a bar to benefits after plaintiff's second surgical operation on his previously injured right knee. The WCAB found the work plaintiff was doing for Premier was "favored work" within his capacity to perform.

The conclusion reached by the WCAB presents a novel situation not apparently passed upon in this state. The appellate courts of this state have consistently held that a refusal of favored work that the injured employee is capable of performing terminates the right to compensation benefits. Lynch v. Briggs Manufacturing Co., 329 Mich. 168, 172, 45 N.W.2d 20 (1950); Morris v. General Motors Corp., 57 Mich.App. 534, 537, 226 N.W.2d 554 (1975), rev'd on other grounds, 394 Mich. 453, 231 N.W.2d 646 (1975); Hope v. Welch Grape Juice Co., 46 Mich.App. 128, 129, 207 N.W.2d 476 (1973).

The WCAB did not make a finding of fact as to whether plaintiff refused favored employment which he was capable of performing. This Court cannot make such a finding and such a finding is essential to a ruling of law based thereon. A remand for an appropriate finding by the WCAB is therefore necessary. See Wright v. Thumb Electric Cooperative, 49 Mich.App. 714, 717-718, 212 N.W.2d 607 (1973). See also Niekro v. Brick Tavern, 66 Mich.App. 53, 59, 238 N.W.2d 537 (1975).

2. As to the second issue the WCAB held as follows [77 MICHAPP 578] "As to the medical non-cooperation argument, we only note that plaintiff willingly underwent two surgeries on his right knee, and that notwithstanding inadequate exercising afterward, that cannot be called lack of cooperation such as would bar his right to benefits. Both plaintiff and defendant are somewhat the loser for his failure to exercise as regularly as Dr. Lint recommended, but plaintiff's actions do not rise in any way to the...