Derr v. Murphy Motors Freight Lines
| Decision Date | 16 September 1996 |
| Docket Number | No. 1,Docket No. 95074,1 |
| Citation | 550 N.W.2d 759,452 Mich. 375 |
| Parties | George J. DERR, Plaintiff-Appellant, v. MURPHY MOTORS FREIGHT LINES and Carrier Insurance Company and Michigan Property & Casualty Guaranty Association, Defendants-Appellees. Calendar |
| Court | Michigan Supreme Court |
Zamler, Mellen & Shiffman, P.C. by Donald Shiffman, Southfield, (Daryl Royal, Dearborn, of counsel), for plaintiff.
Lacey & Jones by Gerald M. Marcinkoski, Birmingham, for defendants.
Conklin, Benham, Ducey, Listman & Chuhran, P.C. by Martin L. Critchell, Detroit, for Amicus Curiae Michigan Self-Insurers' Association.
In this worker's compensation case, we must determine whether the Worker's Disability Compensation Act requires that benefits be reinstated when an offer of reasonable employment that was unreasonably refused is withdrawn by a plant closing. Because the Court of Appeals failed to give effect to the act's requirement that benefits be denied during the period of unreasonable refusal and no longer, we would reverse its holding that the plaintiff was not entitled to reinstatement of benefits and would remand to the Worker's Compensation Appeal Board to determine whether Mr. Derr remained available for a reasonable-employment position.
We also would uphold the findings of the Worker's Compensation Appeal Board that the defendant employer made a bona fide offer of reasonable employment and that the plaintiff employee unreasonably refused the offer.
George Derr began working for Murphy Motors Freight Lines as a truck driver in October of 1968. His job also entailed moving freight to and from loading docks. In December of 1984, he injured his back on the job while unloading a desk weighing in excess of 250 pounds. Although he finished his shift that day, he was unable to work the following day because the pain was too great. The defendant employer placed him on medical leave, and he began receiving worker's compensation benefits. Mr. Derr attempted to return to work on January 21, 1985, but was unable to perform his job. He went back on medical leave and began treatment three times a week at an industrial clinic.
By letter dated June 11, 1985, the defendant employer offered Mr. Derr a light-duty job consisting of security and clerical duties on a midnight shift. On June 18, 1985, Mr. Derr refused the offer. He gave several reasons, including that the job was nonunion and on an undesirable shift, and that his prescribed medication made him too drowsy to perform the job safely and to safely travel to and from the job site. He also testified that he did not feel he could physically perform the job. Because he refused the offer, defendant employer terminated Mr. Derr's worker's compensation benefits effective June 18, 1985.
Approximately a year before his injury, Mr. Derr purchased a retirement home in northern Michigan and began inquiring about his retirement benefits. He testified that at that point he had only general thoughts of retirement. He was aware that the longer he waited, the more his pension benefits would increase. The day after refusing the offer of light-duty work and being informed that his worker's compensation benefits would cease, Mr. Derr applied for pension benefits. He subsequently began receiving monthly pension benefits. Approximately three months after termination of his compensation benefits, he moved to his retirement home.
On June 28, 1985, Mr. Derr filed a petition for hearing with the Bureau of Worker's Disability Compensation. The case was heard before a magistrate. On the date set for the closing of proofs, the employer informed plaintiff's counsel that it had declared bankruptcy and had closed its operations on February 26, 1987.
The magistrate found that plaintiff had suffered a personal injury that arose out of and in the course of his employment, resulting in continuous, ongoing, and total disability. He further found that the employer had made a bona fide offer of favored work and that plaintiff unreasonably refused this offer. Consequently, the magistrate suspended weekly compensation benefits from June 18, 1985, the date that plaintiff refused the job offer. The magistrate also revived weekly compensation payments effective February 26, 1987, because of the effective withdrawal of the offer by defendant's bankruptcy. The magistrate cited Hartsell v. Richmond Lumber Co., 154 Mich.App. 523, 398 N.W.2d 456 (1986), and Steward v. Westran Corp., 130 Mich.App. 68, 343 N.W.2d 7 (1983), for the proposition that an unreasonable refusal of reasonable employment does not permanently deprive an employee of worker's compensation benefits, but rather suspends the employee's benefits for the duration of the unreasonable refusal.
The Worker's Compensation Appeal Board affirmed in all aspects relevant to this appeal. Specifically, the WCAB found that defendant established by a preponderance of the evidence that it made a bona fide offer of reasonable employment and that plaintiff's reasons for refusing the offer were unreasonable. The WCAB also cited Hartsell in affirming reinstatement of benefits.
The Court of Appeals affirmed the WCAB's findings that defendant made a reasonable offer of employment and that plaintiff unreasonably refused it. However, the Court reversed the reinstatement of benefits. It held that the favored-work doctrine only requires an employer to keep an offer open for a reasonable time under all the circumstances. The Court reasoned that because the offer was open for over 1-1/2 years and plaintiff gave no indication that he was interested in returning to work during this entire time, he was not once again entitled to compensation benefits by reason of the effective withdrawal of the offer due to defendant's bankruptcy. The Court of Appeals stated:
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. § 418.301(5); MSA 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 does not persuade us of the validity of this argument. [195 Mich.App. 333, 335-336, 489 N.W.2d 183 (1992).]
Plaintiff appealed in this Court, raising the following issues: (1) whether the magistrate, the WCAB, and the Court of Appeals erred in determining if the job offered was reasonable employment, and (2) whether his benefits should be reinstated upon the effective withdrawal of the job offer because of defendant's bankruptcy.
Plaintiff argues that the magistrate, the WCAB, and the Court of Appeals erred in determining that he unreasonably refused an offer of "favored work" before properly determining whether the offer was for "reasonable employment." Plaintiff's argument is actually twofold: (1) that the lower tribunals erroneously applied judicially created "favored work" principles rather than the statutory "reasonable employment" provisions, and (2) that by analyzing the reasonableness of plaintiff's refusal before determining whether the offer was for reasonable employment, the lower tribunals impermissibly shifted the burden of proof to plaintiff on certain key issues. We find no merit to either of these contentions.
Plaintiff points out that throughout their written opinions, the lower tribunals in this matter used the term "favored work" rather than the statutory term "reasonable employment." This, however, does not mean that the lower tribunals employed an incorrect analysis. The Legislature partially codified the judicially created favored-work doctrine in the reasonable-employment provisions of the Worker's Disability Compensation Act. Pulver v. Dundee Cement Co., 445 Mich. 68, 74, 515 N.W.2d 728 (1994). Importantly, the favored work doctrine and the reasonable-employment provisions call for the same analysis regarding whether an offer is for reasonable employment and whether plaintiff unreasonably refused the offer.
Reasonable employment is defined in the act as
work that is within the employee's capacity to perform that poses no clear and proximate threat to that employee's health and safety, and that is within a reasonable distance from that employee's residence. [M.C.L. § 418.301(9); M.S.A. § 17.237(301)(9).]
Like the definition of reasonable employment, the doctrine of favored work also focused on whether an employee was physically capable of performing the job. An offer of favored work would be deemed a good-faith, bona fide offer only if it was one that the employee was physically capable of performing. Bower v. Whitehall Leather Co., 412 Mich. 172, 186, 312 N.W.2d 640 (1981); Kolenko v. United States Rubber Products, Inc., 285 Mich. 159, 162, 280 N.W. 148 (1938).
In concluding that defendant established a bona fide offer of reasonable employment and that plaintiff unreasonably refused it, the magistrate found that "plaintiff has failed to show any medical reason why he could not carry out the favored work job and in fact had never mentioned the offer of favored work to Dr. Gordon [plaintiff's evaluating physician] to secure his opinion on whether he could perform the work or not." During the...
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