Pulver v. Dundee Cement Co.

• Decision Date: 21 September 1992
• Docket Number: Docket No. 137082
• Citation: Pulver v. Dundee Cement Co., 492 N.W.2d 778, 196 Mich.App. 91 (Mich. App. 1992)
• Parties: Carolyne L. PULVER, Plaintiff-Appellee, v. DUNDEE CEMENT COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 778

492 N.W.2d 778

196 Mich.App. 91

Carolyne L. PULVER, Plaintiff-Appellee, v. DUNDEE CEMENT COMPANY, Defendant-Appellant.

Docket No. 137082.

Court of Appeals of Michigan.

Submitted June 2, 1992, at Lansing.

Decided September 21, 1992, at 9:05 a.m.

Released for Publication Dec. 21, 1992.

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

Keller, Thoma, Schwarze, Schwarze, DuBay & Katz, P.C. by Thomas L. Fleury and Christopher M. Murray, Detroit, for defendant-appellant.

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

TAYLOR, Judge.

Plaintiff injured her left hand in the course of employment with defendant in August 1984. Defendant voluntarily paid workers' compensation benefits to her. She never returned to work for more than a half-day, and eventually moved to Florida. Plaintiff did not work while in Florida, and defendant continued to pay her workers' compensation benefits. Shortly after her move, defendant offered plaintiff favored work. Although she initially accepted the offer, she did not return. Defendant terminated her benefits, and plaintiff sought redress, arguing that her refusal to accept the favored work was reasonable and that defendant should not be relieved of its duty to pay her workers' compensation benefits.

At the time of plaintiff's injury, MCL 418.301; MSA 17.237(301), being Sec. 301 of the Workers' Disability Compensation Act, ¹ provided:

(5) If disability is established ... 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 a previous employer ... and the employee refuses that employment without good and reasonable cause, the employee shall be considered to have voluntarily removed ... 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....

The hearing referee found that under Sec. 17 5(a) the offer of favored work was a bona fide offer of reasonable employment, but that plaintiff had reasonably refused it. Accordingly, the referee granted plaintiff an open award of benefits. On defendant's appeal, the Workers' Compensation Appeal Board found that neither party had acted unreasonably or in bad faith because the problem was simply one of miscommunication.

The only disputed issue properly before us in this appeal is whether plaintiff unreasonably refused defendant's bona fide offer of favored work. We conclude that the appeal board's decision that plaintiff is entitled to continuing benefits because her refusal of favored work was reasonable is based on an error of law and should therefore be reversed. Cox v. Schreiber Corp., 188 Mich.App. 252, 256, 469 N.W.2d 30 (1991).

The favored-work doctrine was originally a purely judicial creation. Bower v. Whitehall Leather Co., 412 Mich. 172, 182, 312 N.W.2d 640 (1981). The heart of the doctrine, as it developed from the 1930s, was that the purpose of the Workers' Disability Compensation Act was not merely to compensate an employee while incapacitated, but also was 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, 277 N.W. 199 (1937); Lynch v. Briggs Mfg. Co., 329 Mich. 168, 172, 45 N.W.2d 20 (1950); Pulley v. Detroit Engineering & Machine Co., 378 Mich. 418, 145 N.W.2d 40 (1966); Bower, supra, at 182, 191, 312 N.W.2d 640. Regarding the ability of the employee to refuse favored work, the Bower Court held that the employee could refuse the favored work only if the refusal furthered the policies of the act. In so holding, the Court discussed the fact that removing oneself from the locality of the favored work, unless there was employment in the other place, served to thwart those policies. Id., at 196, 312 N.W.2d 640.

Within a year of the decision in Bower, the favored-work doctrine was codified in an amendment of the Workers' Disability Compensation Act, with the Legislature clearly intending to incorporate the doctrine in the statute. In this effort, the Legislature did not define "good and reasonable cause" for refusing favored work; thus, the Bower standard of testing a refusal on the basis of the stated purposes of the favored-work doctrine affords the only reasonable indicator of legislative intent. Using that standard, it is clear that, inasmuch as plaintiff did not have employment in Florida, her choices, when favored work was offered by defendant, were to accept such work or have her disability benefits terminated. Any other resolution would be contrary to the purpose of the act, as interpreted by our Supreme Court and as enacted, in acquiescence to that interpretation, by the Legislature.

In this case, plaintiff's actions did not further the policies of the act, and her refusal of favored work was therefore unreasonable. Accordingly, the decision of the Workers' Compensation Appeal Board awarding benefits to plaintiff is reversed.

WEAVER, P.J., concurred.

WAHLS, Judge (dissenting).

I respectfully dissent. I believe that the majority misconstrues our Supreme Court's holding in Bower v. Whitehall Leather Co., 412 Mich. 172, 312 N.W.2d 640 (1981). I further believe that the majority has ignored the factual findings of the Workers' Compensation Appeal Board in reaching its decision. I would hold that plaintiff had just and reasonable cause to refuse the offer of favored work and that the offer was not one of "reasonable employment."

After receiving workers' compensation benefits for slightly less than two years, plaintiff sold all her possessions and moved to Florida. Defendant extended its offer of favored work to plaintiff one month after she relocated. The WCAB found that plaintiff intended to reside in Florida permanently and that she had been seeking employment...