Derr v. Murphy Motor Freight Lines

• Decision Date: 03 August 1992
• Docket Number: Docket No. 136833
• Citation: 195 Mich.App. 333,489 N.W.2d 183
• Court: Court of Appeal of Michigan — District of US
• Parties: George J. DERR, Plaintiff-Appellee, Cross-Appellant, v. MURPHY MOTOR FREIGHT LINES, Carrier Insurance Company, and Michigan Property & Casualty Guaranty Association, Defendants-Appellants, Cross-Appellees.

Page 183

489 N.W.2d 183

195 Mich.App. 333

George J. DERR, Plaintiff-Appellee, Cross-Appellant, v. MURPHY MOTOR FREIGHT LINES, Carrier Insurance Company, and Michigan Property & Casualty Guaranty Association,

Defendants-Appellants, Cross-Appellees.

Docket No. 136833.

Court of Appeals of Michigan.

Submitted June 2, 1992, at Lansing.

Decided Aug. 3, 1992, at 10:00 a.m.

Released for Publication Oct. 5, 1992.

Zamler, Mellen & Shiffman, P.C. by Joel Jonas, Southfield, for plaintiff-appellee, cross-appellant.

Sinn, Day, Felker, Chinitz & Lovernick, P.C. by Thaddeus F. Felker, Birmingham, for defendants-appellants, cross-appellees.

Before WEAVER, P.J., and WAHLS and TAYLOR, JJ.

WEAVER, Presiding Judge.

Plaintiff began working for Murphy Motor Freight Lines as a trailer-truck driver in October 1968. On December 13, 1984, plaintiff injured his back while unloading desks from a truck. Plaintiff attempted to return to work on January 21, 1985, but the pain was too severe. He was placed on medical leave and began to receive workers' compensation benefits. On June 18, 1985, Murphy offered plaintiff a job involving security and clerical duties tailored to meet plaintiff's medical restrictions. However, plaintiff refused the job, stating he was afraid his medication would make him drowsy and unable to drive. Plaintiff brought a claim for workers' compensation benefits.

The magistrate found plaintiff disabled as a result of the December 13, 1984 injury and granted an open award of benefits. Defendants appealed, and the Workers' Compensation Appeal Board affirmed. Defendants now appeal by leave granted, and plaintiff cross appeals. We reverse.

I

Defendants first claim it was error for magistrate Freedman to issue an opinion on the merits of this case when he was not the original trier of fact.

The case was originally assigned to hearing referee Washington, who took testimony on three days. The statutory changes that substituted magistrates for referees then took effect, and the case was assigned to magistrate Tilles. When Tilles had a heart attack, the case was assigned to magistrate Freedman. Defendants argue the case should be remanded for a new decision after further hearing. We disagree.

This case was reviewed by the WCAB, which is specifically required to conduct fact finding de novo. The WCAB commits legal error if it relies upon the findings or expertise of the referee or magistrate. Kostamo v. Marquette Iron Mining Co., 405 Mich. 105, 274 N.W.2d 411 (1979). Thus, defendants' complaint is irrelevant.

II

Defendants contend the WCAB erred in awarding plaintiff weekly benefits after it found plaintiff unreasonably refused their offer of favored work. The WCAB found plaintiff forfeited his right to benefits from the date of his refusal, June 19, 1985, but held that it was reinstated as of February 26, 1987, when Murphy filed for bankruptcy.

The favored-work doctrine requires only that an employer keep open an offer for a reasonable time under all the circumstances. Russell v. General Motors Corp., 172 Mich.App. 627, 432 N.W.2d 738 (1988). After that time, the company should be permitted to withdraw its offer with no fear of disadvantage. Id. In this case, the offer was effectively kept open for over a year and a half. During that time, no indication was given by plaintiff that he might be interested in the job. Thus, even though the company's bankruptcy effectively meant the offer was withdrawn, plaintiff was not once again entitled to compensation benefits.

Plaintiff argues that M.C.L. Sec. 418.301(5); M.S.A. Sec. 17.237(301)(5) should be interpreted to mean that the employee's refusal ends when the employer either withdraws its offer or goes out of business. Review of the statute ¹ does not persuade us of the validity of this argument.

Our holding in this section renders the remainder of defendants' arguments moot.

III

Plaintiff has cross appealed, arguing that the job offer was not reasonable because he could not perform the work offered by Murphy. Plaintiff contends that he rejected the job partly because the medication he was taking caused drowsiness and he was afraid that he would kill someone if he drove to work. Plaintiff therefore contends that the offered work was not reasonable employment because it threatened his health and safety and was not within a reasonable distance from his residence, as required under M.C.L. Sec. 418.301(9); M.S.A....