Lee v. Koegel Meats

• Decision Date: 26 May 1993
• Docket Number: Docket No. 152826
• Citation: 502 N.W.2d 711,199 Mich.App. 696
• Parties: Jacqueline LEE, Plaintiff-Appellant, v. KOEGEL MEATS and Citizens Insurance Company, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 711

502 N.W.2d 711

199 Mich.App. 696

Jacqueline LEE, Plaintiff-Appellant, v. KOEGEL MEATS and Citizens Insurance Company, Defendants-Appellees.

Docket No. 152826.

Court of Appeals of Michigan.

Submitted March 2, 1993, at Detroit.

Decided March 30, 1993.

Approved for Publication

May 26, 1993, at 9:05 a.m.

Released for Publication July 30, 1993.

Sachs, Waldman, O'Hare, Helveston, Hodges & Barnes, P.C. by Granner S. Ries and Roberta H. Pullum, Detroit, for plaintiff-appellant.

Hanba & Lazar, P.C. by Shane F. Diehl, Flint, for defendants-appellees.

Before WAHLS, P.J., and BRENNAN and CORRIGAN, JJ.

PER CURIAM.

Plaintiff seeks leave to appeal an April 30, 1992, opinion and order of the Workers' Compensation Appellate Commission, one member dissenting, which in relevant respects reversed the decision of a magistrate to award plaintiff benefits for a closed period. In lieu of granting or denying the application, we resolve the issue presented by peremptory opinion. Kerby v. Judges' Retirement Bd., 166 Mich.App. 302, 420 N.W.2d 195 (1988).

On June 16, 1989, plaintiff suffered a wrist injury in the course of her employment. On that date, plaintiff was likely one or two weeks pregnant. The commission majority noted that plaintiff's pregnancy was undisputedly volitional-- plaintiff went to a fertility clinic for assistance in becoming pregnant.

Plaintiff was off work until October 9, 1989, for which closed period the magistrate awarded her benefits, without current dispute from defendants. On that date, plaintiff was medically certified to return only to favored work, which her employer offered her.

Plaintiff's favored work could only be performed in a standing position. On October 12, 1989, plaintiff's obstetrician restricted her from standing because of "spotting." However, on that date plaintiff's right wrist was still a disabling condition.

Following her obstetrician's recommendation, plaintiff terminated favored work, remained off work through delivery of her baby on March 4, 1990, and did not return to work until April 30, 1990. Although her wrist continues to bother her, plaintiff has resumed her regular employment.

The magistrate held that this second closed period of missed employment was compensable under Powell v. Casco Nelmor Corp., 406 Mich. 332, 279 N.W.2d 769 (1979). The commission majority, however, disagreed, opining that Powell applies only to diseases or other involuntarily encountered disabling conditions, not to pregnancy, which at least in the present context is a voluntarily assumed condition. The commission majority also opined that Powell, in any event, has been superseded by amendments of § 301 of the Worker's Disability Compensation Act, M.C.L. § 418.301; M.S.A. § 17.237(301), specifically § 301(5)(a), which provides:

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 workforce and is no longer entitled to any wage loss benefits under this act during the period of such refusal. [M.C.L. § 418.301(5)(a); M.S.A. § 17.237(301)(5)(a).]

Reasoning that compensation benefits are intended for those who are unemployed because of work-related disability, the majority held that "good and reasonable cause" refers to work-related, rather than personal, factors. Because on this record pregnancy is not a work-related disability, the majority was disinclined to treat a claimant with an unrelated past injury differently than one who is pregnant, considering different treatment to be illogical, unfair, and plainly discriminatory. The majority therefore concluded that an individual who leaves work because of pregnancy leaves the workplace voluntarily and is accordingly disqualified from benefits by § 301(5)(a).

The dissenting commission member agreed with the majority that "pregnancy is not a disease" and that "any worker with regular employment who takes leave from her job due to pregnancy is not entitled to workers' compensation." The dissenter agreed that a pregnant woman who happens to suffer a work-related injury should be treated no differently than any other worker who sustains a work-related injury.

The dissenter, however, concluded that, in light of the obstetrician's advice on October 12, 1989, to cease any employment involving standing, the favored work then available to plaintiff was not "reasonable employment" for purposes of § 301, as addressed more particularly in § 301(9):

(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. The employee's capacity to perform shall not be limited to jobs in work suitable to his or her qualifications and training. [M.C.L. § 418.301(9); M.S.A. § 17.237(301)(9).]

The dissenter accordingly reasoned that, on October 12, 1989, the favored work available to plaintiff was no longer "reasonable" because it posed a "clear and proximate threat" to plaintiff's health.

The dissenter reasoned that, while pregnant women should reap no special privileges because of pregnancy, neither can they be denied any. If an employee engaged in "reasonable employment" suffers a nonwork-related illness or injury that precludes continuation of that reasonable employment, benefits are resumed during that period of nonwork-related illness, as long as the work-related disability continues. Once the period of nonwork-related illness has ended, the employee must return to the reasonable employment, despite the continuing work-related disability, or suffer loss of benefits.

The dissenter thus concluded that, with the birth of plaintiff's child on March 4, 1990, her "spotting" condition, the reason for her inability to continue favored work, ended. "Allowing for hospitalization and nature's healing and lacking proofs or a finding that plaintiff's inability to return to reasonable employment continued, I would modify the magistrate's award and grant benefits from October 12, 1989 to March 14, 1990. To do more would foster the payment of workers' disability compensation for 'maternity leaves', which, I agree with my colleagues, is improper." Plaintiff states the issue for review as follows:

WAS IT LEGALLY ERRONEOUS FOR THE MAJORITY OF THE WCAC TO REVERSE THE DECISION OF THE MAGISTRATE--THAT PLAINTIFF WAS ENTITLED TO WORKERS' COMPENSATION BENEFITS DURING THE PERIOD OF TIME SHE COULD NOT PERFORM FAVORED WORK ON ACCOUNT OF A NONWORK-RELATED PROBLEM?

Plaintiff's right to benefits in this situation is strictly governed only by statute. Neither the Fourteenth Amendment nor the equivalent equal protection provision of Const.1963, art. 1, § 2, which is no broader in scope than the Equal Protection Clause of the Fourteenth Amendment, Doe v. Dep't of Social Services, 439 Mich. 650, 670-674, 487 N.W.2d 166 (1992), demands that workers' compensation disability benefits be extended to pregnant women who, but for their pregnancy, would be capable of undertaking favored work. Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974). ¹

At the outset, plaintiff relies on § 301(5)(e):

(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:

* * * * * *

(e) If the employee, after having been...