Pulver v. Dundee Cement Co.

• Decision Date: 03 May 1994
• Docket Number: No. 94989,No. 1,94989,1
• Citation: Pulver v. Dundee Cement Co., 445 Mich. 68, 515 N.W.2d 728 (Mich. 1994)
• Parties: Carolyne L. PULVER, Plaintiff-Appellant, v. DUNDEE CEMENT COMPANY, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 728

515 N.W.2d 728

445 Mich. 68

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

No. 94989.

Calendar No. 1.

Supreme Court of Michigan.

Argued Jan. 11, 1994.

Decided May 3, 1994.

[445 Mich. 70] Zamler, Mellen & Shiffman, P.C. by Donald Shiffman and Joel W. Jonas, Southfield (Daryl Royal, Dearborn, of counsel), for plaintiff.

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

Jordan Rossen, Gen. Counsel, and Ralph O. Jones, Associate Gen. Counsel, Detroit, for amicus curiae, International Union, United Auto., Aerospace & Agr. Implement Workers of America--UAW.

OPINION

MICHAEL F. CAVANAGH, Chief Justice.

I

In this workers' compensation matter, we must construe M.C.L. § 418.301(5)(a); M.S.A. § 17.237(301)(5)(a), ¹ and determine what constitutes "good and reasonable cause" justifying an employment. ²

We hold that "good and reasonable cause" is the statutory equivalent of the similar requirement found in the judicially created favored-work doctrine. Since the Legislature incorporated this common-law requirement into the workers' compensation act without specifically defining it, we assume that the Legislature did not intend to change the common law.

Whether an employee's refusal of reasonable employment is for good and reasonable cause is a question of fact. Questions of fact are committed to the discretion of the WCAC. ³ In the absence of fraud, the WCAC's findings of fact are binding on the courts of this state if there is any competent evidence supporting them.

II

It is undisputed that plaintiff suffered a compensable injury to her wrist in August 1984. It is also undisputed that she suffers an ongoing total disability.

Plaintiff's injury initially caused her to miss five days of work. She eventually returned to her job and worked until March 1985 with various medical restrictions. Her last day was March 5, 1985, at which time defendant began paying benefits.

Corrective surgery was performed on her wrist that March, but she never regained the complete use of her hand. After the surgery she saw several doctors and therapists, but could not return to work because defendant failed to offer work suitable to her medical restrictions. Plaintiff regularly called defendant regarding the availability of work. Defendant regularly informed her that none was available.

Plaintiff's treating physician concluded that she was permanently disabled in October 1985. Unhappy with this diagnosis, defendant sent her to one of its doctors. Defendant's doctor examined her and placed her on disability for six additional weeks.

Approximately six weeks later, plaintiff returned to work and received "favored work"--sweeping floors. She quickly discovered, however, that she could not perform this job without aggravating her wrist. Defendant and plaintiff's union came to an agreement, and plaintiff was sent home that day with the understanding that defendant would continue to pay benefits.

On May 27, 1986, defendant sent plaintiff to see another doctor. That doctor concluded that plaintiff could not return to her former job and that it was very likely that she was permanently disabled.

Shortly after this diagnosis, and after having tried to secure work within her restrictions for well over a year, plaintiff decided to move to Florida. This allowed her to be closer to her family, and she believed the warm weather was better for her wrist. On June 27, 1986, she notified defendant in writing that she was moving and that any further correspondence could be directed to her new address in Florida or to her attorney. ⁴ Plaintiff sold all of her belongings and left.

In a letter mailed July 15, 1986, and received July 28, 1986, ⁵ defendant notified plaintiff that a job within her restrictions was now available. After first stalling for time to consult her attorney, she eventually rejected this offer because she now considered herself a permanent resident of Florida. Defendant stopped paying benefits and plaintiff began this action.

At the hearing, the magistrate held that plaintiff's refusal of defendant's bona fide offer of "favored work" ⁶ was reasonable. On appeal, the WCAB affirmed.

[W]e find from the facts that plaintiff had relocated to Florida in June of 1986 and intended to stay in Florida on a permanent basis. Plaintiff was attempting to seek work in Florida, had signed a lease with the condominium association, and was reliant upon family members as she had sold all of her possessions prior to leaving Toledo, Ohio. We find that plaintiff was credible in her testimony and accept that she planned to reside in Florida on a permanent basis. The record discloses that there was nothing to her knowledge that would have her return to Michigan since at the time of her move she did not know that defendant was seeking favored work for her. [Unpublished decision of the WCAB, mailed December 20, 1990 (Decision No. 1617), Op at 737.]

The WCAB concluded, as did the magistrate, that defendant had made a bona fide offer of "favored work," but that plaintiff's refusal was reasonable.

Defendant appealed, again arguing that plaintiff's refusal was unreasonable. Plaintiff failed to cross appeal on the issue whether the job offer was a bona fide offer of reasonable employment. A divided Court of Appeals reversed the WCAB.

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.

* * * * * * [I]t 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. [196 Mich.App. 91, 93-94, 492 N.W.2d 778 (1992) (citation omitted).]

Dissenting, Judge Wahls held:

The WCAB found that plaintiff intended to reside in Florida permanently and that she had been seeking employment there. These findings are supported by competent evidence on the record and no fraud has been alleged. This Court may therefore not disturb those findings....

* * * * * *

I would affirm the WCAB's conclusion that the plaintiff's refusal was for good and reasonable cause. [Id. at 95-96, 492 N.W.2d 778 (citation omitted).]

III

A

The Legislature partially codified the judicially created favored-work doctrine in the reasonable employment provisions of the workers' compensation act. M.C.L. § 418.301; M.S.A. § 17.237(301), and M.C.L. § 418.401; M.S.A. § 17.237(401). ⁷ However, these provisions are far more than a simple compilation of this Court's prior favored-work decisions. While building on some of those decisions, some of these provisions have significantly changed others. Although the Legislature has made significant changes in the favored-work doctrine, this Court need not ignore all of its prior favored-work decisions in their entirety. ⁸

For example, it is a well-established rule of statutory construction that the Legislature is presumed to be aware of judicial interpretations of existing law when passing legislation. Dean v. Chrysler Corp., 434 Mich. 655, 667, n. 18, 455 N.W.2d 699 (1990). Therefore, when the Legislature codifies a judicially defined requirement without defining it itself, a logical conclusion is that the Legislature intended to adopt the judiciary's interpretation of that requirement.

This conclusion is also supported by the associated rule of construction that provides that words and phrases that have acquired a unique meaning at common law are interpreted as having the same meaning when used in statutes dealing with the same subject. Thornton v. Allstate Ins. Co., 425 Mich. 643, 648, 391 N.W.2d 320 (1986); M.C.L. § 8.3a; M.S.A. § 2.212(1). The statutory requirement of "good and reasonable cause" is analogous to the common-law requirement of "good faith or reasonableness." Bower v. Whitehall Leather Co., 412 Mich. 172, 178, 312 N.W.2d 640 (1981). The statutory requirement is too similar to the common-law requirement to be dismissed as coincidence.

Applying these basic rules of construction to the statute at hand, we think it obvious that the Legislature did not, nor did it intend to, change the common law for this specific requirement. Accordingly, we turn to an examination of the common law.

B

This Court examined an offer of favored work and the reasonableness of its refusal in Kolenko v. United States Rubber Products, Inc., 285 Mich. 159, 280 N.W. 148 (1938). In that case, the plaintiff suffered a compensable injury to her arm. After paying compensation for a short period, the defendant stopped. The plaintiff sued, and at the subsequent hearing the defendant alleged that the plaintiff had refused an offer of substitute employment.

The offer was in the form of a request by the defendant that the plaintiff come to the plant where she would be given work. The plaintiff, accompanied by her attorneys, went to the plant to see what type of job the defendant intended to give her. The defendant however, refused to provide any details of the job. The defendant also refused to allow the plaintiff's attorneys into the plant to determine whether she was capable of performing the unspecified job.

The defendant maintained that these events demonstrated the plaintiff's unreasonable refusal to cooperate with the defendant. Thus, the defendant argued, her benefits should be denied. This Court flatly rejected the defendant's argument that the plaintiff had acted unreasonably.

The burden was on the defendant to show that it offered plai...