Jones-Jennings v. Hutzel Hosp.

• Decision Date: 18 April 1997
• Docket Number: Docket No. 187750,P,JONES-JENNING
• Citation: 223 Mich.App. 94,565 N.W.2d 680
• Parties: Annielaintiff-Appellant, v. HUTZEL HOSPITAL, Defendant-Appellee. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 680

565 N.W.2d 680

223 Mich.App. 94

Annie JONES-JENNINGS, Plaintiff-Appellant, v. HUTZEL HOSPITAL, Defendant-Appellee. (On Remand)

Docket No. 187750.

Court of Appeals of Michigan.

Submitted Oct. 2, 1996, at Detroit.

Decided April 18, 1997, at 9:30 a.m.

Released for Publication July 16, 1997.

Zamler, Mellen & Shiffman, P.C. by Donald Shiffman, Southfield (Daryl Royal, of counsel, Dearborn), for plaintiff-appellant.

Kluczynski, Girtz, Zamler & McCubbrey, P.C. by Ronald A. Weglarz, Southfield, for defendant-appellee.

Before MARKMAN, P.J., and SMOLENSKI and G.S. BUTH ^*, JJ.

ON REMAND

SMOLENSKI, Judge.

This worker's compensation case is before us on remand from our Supreme Court for consideration as on leave granted. 449 Mich. 893, 536 N.W.2d 773 (1995). Plaintiff appeals from an order of the Worker's Compensation Appellate Commission that, in relevant part, modified the magistrate's open award of benefits by denying benefits effective July 31, 1990. We reverse the decision of the WCAC and reinstate the magistrate's decision.

At issue in this case are the reasonable employment provisions of the Worker's Disability Compensation Act (WDCA), M.C.L. § 418.101 et seq.; M.S.A. § 17.237(101) et seq., which represent a partial codification of the judicially created favored-work doctrine. Pulver v. Dundee Cement Co., 445 Mich. 68, 74, 515 N.W.2d 728 (1994). We thus begin by quoting the relevant statutory language:

(5) If disability is established pursuant to subsection (4), entitlement to weekly wage loss benefits shall be determined pursuant to this section and as follows:

(a) If an employee receives a bona fide offer of reasonable employment from the previous employer, another employer, or through the Michigan employment security commission and the employee refuses that employment without good and reasonable cause, the employee shall be considered to have voluntarily removed himself or herself from the work force and is no longer entitled to any wage loss benefits under this act during the period of such refusal.

* * * * * *

(9) "Reasonable employment", as used in this section, means 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(5)(a) and (9); M.S.A. § 17.237(301)(5)(a) and (9) (emphasis supplied).]

The facts relevant to this case are as follows. In 1970, plaintiff began working for defendant as a nurses' assistant. In June 1988, plaintiff injured her left elbow at work when she struck it on a metal cart. Plaintiff was sent home from work. She began receiving treatment from various doctors. Defendant began voluntarily paying worker's compensation benefits to plaintiff.

In December 1989, defendant instructed plaintiff to report for work. On her first day back, plaintiff, while working a two-handed job, reinjured her elbow when she struck it on a trash can while attempting to lay a sheet on an examining table. Plaintiff was again sent home from work.

In April 1990, plaintiff moved to Ohio and got married to an Ohio resident. Following the wedding, plaintiff informed defendant's personnel department that she intended to live in Ohio.

In July 1990, defendant sent plaintiff a written job offer of one-handed work. At this time, plaintiff was residing in Ohio approximately 142 miles from defendant's hospital. Plaintiff did not respond to the letter. Defendant discontinued paying benefits to plaintiff. Plaintiff petitioned for wage-loss benefits. Following a hearing, the magistrate found that plaintiff had suffered a work-related injury in June 1988, and, as a result, had become partially disabled. The magistrate found that plaintiff had suffered a second work-related injury in December 1989 that aggravated her existing partial disability. The magistrate concluded that plaintiff continued to be partially disabled.

Concerning defendant's July employment offer, the magistrate found as follows:

All the doctors agree that plaintiff could do a one-handed job. I so find. Defendant offered plaintiff a one-handed [sic] in July of 1990. However, in April of 1990 plaintiff moved her domicile to Lima, Ohio and was living there with her new husband in July of 1990. The offered job was approximately 142 miles from plaintiff's new residence. Under Section 301(9) "reasonable employment" is employment "within a reasonable distance from that employee's residence." I find that the job offered in July of 1990 by defendant was not a reasonable offer of work due to the inordinate distance between plaintiff's residence and the offered work.

The magistrate found that plaintiff was entitled to an open award of wage-loss benefits.

Defendant appealed the magistrate's decision to the WCAC, raising numerous grounds. The WCAC affirmed the magistrate's decision in all respects except with respect to defendant's contention that plaintiff did not make a good-faith attempt at performing its July 1990 offer of employment. Concerning this argument, the WCAC stated as follows:

The portion of the statute at issue defines "reasonable employment" as follows:

"MCL § 418.301(9) [M.S.A. § 17.237(301)(9) ]. 'Reasonable employment,' as used in this section, means 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."

In construing whether injured employees have justifiably refused offers of favored work when the employee has moved, courts have asked whether there is good and reasonable cause for the employee's refusal of favored work. A factor in that analysis is the distance between the location of work and either an employee's residence at the time of injury or at the time of the offer. We highlight the following cases discussing this section of the statute.

Most recent is the Supreme Court opinion in [Pulver, supra ]. In that case, one month after the injured plaintiff moved to Florida, defendant offered her favored employment. She was not yet reemployed, nor being rehabilitated. However, she testified to keeping in touch with the employer for more than a year after her injury to see if there was favored work available. One month after selling "all" her possessions, leasing a condominium in Florida and "attempting to seek work" there, defendant's offer was made.

The Supreme Court remanded the case stating the determination of whether the refusal of reasonable employment is for good and reasonable cause is a question of fact. The Court listed examples of factors to consider as:

"(1) the timing of the offer, (2) if the employee has moved, the reasons for moving, (3) the diligence of the employee in trying to return to work, (4) whether the employee has actually returned to work with some other employer and, (5) whether the effort, risk, sacrifice or expense is such that a reasonable person would not accept the offer." Id., 13.

Under the facts of this case, the magistrate only examined the fact that plaintiff has moved away and not any other consideration. Pursuant to Pulver, this analysis is insufficient.

In what had been the seminal case in Michigan for years on this issue, Bower v. Whitehall Leather Co., 412 Mich. 172 (1981), the injured plaintiff moved to Florida with his wife after his injury. Both found employment there. Plaintiff rejected defendant's offer of favored work. The Court stated the purpose of the worker's compensation act is to "encourage [the worker] to rehabilitate himself.... It is in the interest of the employer, the employee, and the public to have the employee return to gainful employment as soon as possible." DeTroyer v. Ernst Kern Co., 282 Mich. 689, 694 (1937). The Court praised plaintiff's actions stating that such

"initiative and industriousness, should be encouraged. To deny benefits in the instant circumstances not only would punish this employee for finding and holding substitute work, but also would severely undercut the rehabilitative and mitigative purposes of the act." [Bower, supra ], 192 .

In Bower, the Supreme Court cited Morrison v. Merrick's Super Market, Inc., 300 Minn. 535 (1974), where an employee refused favored work made while he was engaged in a retraining program. His refusal was justified because his actions comported with the remedial nature of the act and with "the more specific statutory purpose of 'encouraging injured workers to increase their employability through retraining'." [Bower, supra ], 195-196 .

Further, the Court stated:

"It should be recognized that we do not hold that just any personal consideration may excuse a refusal of favored work. Nor may an employee avoid returning to work tendered upon a good-faith offer by merely removing himself from the locality of the employer. Only under circumstances similar to those in the instant case, where the claimant's actions further the policies of the statute, can such a rejection be justified." Id., 196 . (Emphasis ours.)

We interpret this case to mean that so long as an employee's activities in the new location further the act's purposes of rehabilitation or reemployment, the employee is justified in refusing the offer of favored work.

The sequence of events in this case are plaintiff's June 1989 injury, her August 1989 engagement, her December 1989 reinjury, her April 1990 marriage and relocation and defendant's July 1990 offer to return her to favored employment. Her refusal to return was based on the distance of 140 miles and on personal reasons. She was living with her husband in Lima, Ohio in a three room apartment. She remained unemployed and was collecting welfare benefits. She testified she had not earned any income since she had left Michigan but was collecting food stamps. While her husband had been employed at the time of their wedding, at the time of trial he was laid off...