McKinney v. Uniroyal, Inc.

• Decision Date: 04 April 1978
• Docket Number: Docket No. 77-1098
• Citation: 82 Mich.App. 348,266 N.W.2d 820
• Parties: Frank McKINNEY, Plaintiff-Appellant, v. UNIROYAL, INCORPORATED, Defendant-Appellee. 82 Mich.App. 348, 266 N.W.2d 820
• Court: Court of Appeal of Michigan — District of US

Page 820

266 N.W.2d 820

Frank McKINNEY, Plaintiff-Appellant, v. UNIROYAL, INCORPORATED, Defendant-Appellee.

Docket No. 77-1098.

82 Mich.App. 348, 266 N.W.2d 820

Court of Appeals of Michigan.

April 4, 1978.

Released for Publication June 27, 1978.

[82 MICHAPP 350] Kelman, Loria, Downing, Schneider & Simpson by Ina C. Cohen, Detroit, for plaintiff-appellant.

Lacey & Jones by John L. Salter, Detroit, for defendant-appellee.

Before ALLEN, P. J., and D. E. HOLBROOK, Jr. and KELLY, JJ.

ALLEN, Judge.

We are asked to determine whether a 3-2 split decision of the Workmen's Compensation Appeal Board, denying plaintiff benefits for an interim 31-month period (April 30, 1970 to December 2, 1972) on grounds that plaintiff refused to perform favored work, should be affirmed.

Plaintiff commenced work for defendant in 1951 and, in May 1971, filed a petition claiming an occupational disablement as of July 1969, from severe lung congestion caused by working in atmospheric pollutants. Following hearings held before him in the summer and fall of 1972, Hearing Referee Robert Martin issued an opinion November 8, 1972, holding that plaintiff was disabled from July 8, 1969, to April 30, 1970, but terminated benefits at that point for the following reasons:

"No compensation is ordered payable from April 30, 1970 to date because plaintiff's medical witness, Dr. Hopkins, felt that plaintiff should have tried the proffered work to see whether he could have done it. Plaintiff's second medical witness, Dr. Shapiro, felt that any area in the plant would contain irritating airborne particles. Unfortunately neither of the doctors had the benefit of having viewed the proffered work area. The particular area appears to be essentially free of airborne particles although it is not free from the odor of [82 MICHAPP 351] rubber. The proffered employment has been on October 9, 1971 been (sic) inspected by the hearing referee and found to be 'clean'. The proffered employment, however, is not as easy as it would seem from descriptions given. There appears to be considerable exertion required in the unrolling of the inner rag; also the pocket checker, at the time of observation, was constantly, though not hurriedly, moving about the work area.

"Plaintiff should present himself for work and attempt the proffered employment. Until such time as he does he is entitled to no further compensation. If, and when plaintiff does attempt to return to work he shall be entitled to compensation for partial disability as set forth in the statute."

No appeal was taken from Referee Martin's decision, but 24 days following the date of that decision, plaintiff reported at defendant company and attempted to perform the favored work. Claiming he was unable to do such work, he left two weeks later and, on January 22, 1973, filed another petition for hearing. On March 28, 1973, he again returned to defendant company and again was unable to perform the favored work and left some two weeks later. Hearings were held by administrative law judge Morris Zwerdling who, on July 11, 1975, found that plaintiff was unable in 1972 to do the favored work offered by defendant company and entered an open award for future payments but denied compensation for the period here in dispute. Defendant then appealed to the Workmen's Compensation Appeal Board which unanimously agreed that plaintiff was entitled to an open award from December 11, 1973. However, three members held that for the 31-month period from April 30, 1970, to December 2, 1972, plaintiff, by unreasonably failing to perform work proffered in good faith within his capacity to perform and by failing to appeal Referee Martin's decision, was [82 MICHAPP 352] not entitled to compensation. ¹ Two members held that Referee Martin did not either expressly or by implication find that plaintiff was able to perform the proffered work but instead merely suspended the compensation which otherwise would be payable for that period until plaintiff presented himself and attempted to perform such work. Since at the second hearing plaintiff's proofs showed he was unable in 1972 to perform the work proffered, the two members concluded he was entitled to compensation for the 31-month period. On appeal to us, only the question of whether or not plaintiff was entitled to benefits during the intervening period between the date of suspension by Referee Martin and plaintiff's attempts at favored work is at issue.

The correct answer to the narrow issue posed above lies in which of two possible meanings is to be given to Referee Martin's holding cited earlier. Did Referee Martin find (a) favored work was offered, (b) plaintiff refused to try such work, and (c) plaintiff was capable of performing such favored work? Or did the referee only find (a) and (b) but withheld decision on condition (c) pending plaintiff's return to try such favored work at which [82 MICHAPP 353] time it would then be determined whether plaintiff was able to perform such work as of April 30, 1970? The Workmen's Compensation Appeal Board majority reads the referee as holding the first interpretation, and the minority construes the referee as intending the second position. The doctrine of res judicata applies to workmen's compensation proceedings. Hlady v. Wolverine Bolt Co., 393 Mich. 368, 375, 224 N.W.2d 856 (1975). But in workmen's compensation proceedings "for the doctrine of res adjudicata to bar a subsequent proceeding, the precise issue of fact or law must have been at issue and decided in the preceding adjudication". White v. Michigan Consolidated Gas Co., 352 Mich. 201, 211, 89 N.W.2d 439, 445 (1958). Case authority and res judicata, therefore, would support the majority position if it is determined that Referee Martin found conditions (a), (b) and (c) above.

There is no question in our minds that the referee found conditions (a) and (b). But we agree with the WCAB minority that the referee merely withheld judgment on plaintiff's ability to perform the favored work. And we know of no law which compels an irrevocable forfeiture of compensation benefits where the employee refuses the favored work in the absence of an express finding that the favored work was within the employee's then physical capabilities. In fact, it is the employer who ultimately bears the burden of showing that the proffered work is within the employee's physical capacity. In Kolenko v. United States Rubber Products, Inc., 285 Mich. 159, 162, 280 N.W. 148, 149 (1938), ² our Supreme Court stated:

[82 MICHAPP 354] "The burden was on the defendant to show that it offered plaintiff work which she could perform. Obviously her physical handicap excluded labor that would require the use of her injured arm. Plaintiff was under no obligation to comply with the unreasonable and arbitrary demand of defendant that she accept whatever work the company thought suitable for her." (Emphasis supplied).

Admittedly, several cases cited by defendant as controlling held that an injured employee who refuses an offer of favored work which the employee is capable of performing is not entitled to workmen's compensation benefits. Pigue v. General Motors Corp., 317 Mich. 311, 318, 26 N.W.2d 900 (1947), Lynch v. Briggs Manufacturing Co., 329 Mich. 168, 172, 45 N.W.2d 20 (1950), Hope v. Welch Grape Juice Co., 46 Mich.App. 128, 129, 207 N.W.2d 476 (1973). The trouble is that no decision speaks to the legal consequences of an employee's refusal to try favored work when there is no evidence one way or the other of whether or not the employee has the physical ability to perform such work. As defendant correctly inquires, how can the employer sustain its Kolenko burden of proof of the physical ability of the employee to perform the job offered if the...