Russell v. General Motors Corp.

• Decision Date: 16 December 1988
• Docket Number: Docket No. 99815
• Citation: 172 Mich.App. 627,432 N.W.2d 738
• Parties: Rita RUSSELL a/k/a Rita Hickey, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Fisher Body Division, Defendant-Appellee. 172 Mich.App. 627, 432 N.W.2d 738
• Court: Court of Appeal of Michigan — District of US

Page 738

432 N.W.2d 738

Rita RUSSELL a/k/a Rita Hickey, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Fisher Body Division Defendant-Appellee.

Docket No. 99815.

172 Mich.App. 627, 432 N.W.2d 738

Court of Appeals of Michigan.

Submitted March 10, 1988.

Decided Nov. 7, 1988.

Released for Publication Dec. 16, 1988.

[172 MICHAPP 629] Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by Granner S. Ries, Detroit, for plaintiff-appellant.

Conklin, Benham, Ducey, Ottaway, Listman & Chuhran, P.C. by Martin L. Critchell, Detroit, for defendant-appellee.

Before DOCTOROFF, P.J., and CYNAR and HOUK, ^* JJ.

HOUK, Judge.

Plaintiff, Rita Russell, appealed from three decisions made by either hearing referee Russell E. Bine or Charles C. Conklin. On September 30, 1985, the Workers' Compensation Appeal Board affirmed all three decisions. Plaintiff's[172 MICHAPP 630] petition for leave to appeal to this Court was denied, as was her motion for reconsideration. Plaintiff applied for leave to the Supreme Court which, in lieu of granting leave, remanded the case to this Court for consideration as on leave granted. Russell v. General Motors Corp., 428 Mich. 879, 402 N.W.2d 483 (1987). We affirm the WCAB's decision.

The facts are not in dispute. On August 19, 1969, while employed by defendant, General Motors Corporation, plaintiff injured her neck and back while pulling at an automobile seat that was caught in her sewing machine. She went on sick leave from that date to January 25, 1971, and from February 8 to March 29, 1971. In May, 1971, plaintiff started to experience breathing difficulties and went on sick leaves from May 14, 1971, to March 7, 1972, and from August 3, 1972, to July 31 1973. Her last day of work was August 22, 1973.

On July 30, 1979, the WCAB ordered that workers' compensation benefits be paid to plaintiff for her neck and arm orthopedic disability, but not for her pulmonary problems. Russell v. General Motors Corp., 1979 WCABO 1940. Neither party appealed, and that decision became final on August 29, 1979.

When defendant commenced payment of the benefits on October 5, 1979, it deducted the amount of sickness and accident and extended-disability insurance benefits that plaintiff had received either while on sick leave or after her final day of work. Plaintiff protested and petitioned for a Rule V penalty hearing. See M.C.L. Sec. 418.801; M.S.A. Sec. 17.237(801). Referee Bine fined defendant $350 for the seven-day delay in payment, but refused to order defendant to pay back the amount of benefits deducted.

[172 MICHAPP 631] On April 18, 1980, defendant sent plaintiff a letter in which it offered her favored work. Plaintiff never responded and defendant filed a petition to stop payment of benefits. A hearing was held before referee Conklin, who found that plaintiff had unreasonably refused to perform favored work and thereby granted defendant's petition.

Five days after referee Conklin issued his decision, on April 13, 1981, defendant fired plaintiff pursuant to her union contract. On October 27, 1981, plaintiff presented herself to defendant, and asked to be permitted to do the favored work. Defendant refused, and plaintiff requested a second penalty hearing on the question of whether workers' compensation benefits should be resumed. At that hearing, referee Conklin found that defendant's nonpayment of benefits did not constitute noncompliance with the prior award and refused to impose any penalties.

Plaintiff appealed the last three decisions to the WCAB, which affirmed all three.

On appeal, plaintiff raises six issues. Plaintiff claims that her right to receive workers' compensation benefits resumed either on April 13, 1981, when defendant fired her and, thereby, withdrew its offer of favored work, or, at the latest, in October, 1981, after defendant refused to employ her. We disagree; and, in doing so, we interpret Steward v. Westran Corp., 130 Mich.App. 68, 343 N.W.2d 7 (1983), differently than did the panel in Hartsell v. Richmond Lumber Co., 154 Mich.App. 523, 398 N.W.2d 456 (1986), lv. den. 426 Mich. 886, 397 N.W.2d 521.

As stated in Steward, 130 Mich.App. at 70, 343 N.W.2d 7: "It is well-settled that an injured employee who unjustifiably refuses an offer of favored work forfeits his right to compensation benefits." The Steward Court answered the question of whether an unjustifiable[172 MICHAPP 632] refusal resulted in a permanent forfeiture of benefits by holding that, "[u]nder the circumstances of this case," the employee's right to benefits was merely suspended for the duration of the refusal. Steward, 130 Mich.App. at 72, 343 N.W.2d 7. The Hartsell majority interpreted Steward as meaning that the receipt of benefits was suspended only during the period of an employee's unreasonable refusal. Hartsell, 154 Mich.App. at 534, 398 N.W.2d 456. Thus, the plaintiff inHartsell was entitled to continuing disability compensation when defendant withdrew its offer of favored work by closing its plant. We reject the blanket rule of Hartsell, which bases its decision on one factor, namely the duration of the employee's unreasonable refusal; instead we opt for a formula which evaluates many factors, including the reasonableness of the parties' conduct.

Our approach agrees with that set out in the partial dissent in Hartsell, written by MacKenzie, P.J. (who was on the Steward panel). Judge MacKenzie interprets the favored work doctrine as requiring only that an employer keep open an offer for a reasonable time under all the circumstances. Hartsell, 154 Mich.App. at 534-535, 398 N.W.2d 456. The policies of mitigation and rehabilitation are not served by forcing a company to hold open a job offer indefinitely, as explained by Judge MacKenzie in Hartsell, and such an approach would promote unsound results. It must be remembered that it is the employee's unreasonable refusal which triggers the initial forfeiture of benefits. There comes a point after which it is unreasonable to think that such employee might someday accept the offer that was originally spurned. It is at that point that a company should be permitted to withdraw its offer with no fear of disadvantage.

Since the WCAB applied the correct legal test when determining whether to order the resumption[172 MICHAPP 633] of benefits, our function as a reviewing court is extremely limited. The findings of fact of the WCAB are conclusive in the absence of fraud and will not be disturbed if supported by competent evidence in the record. Bower v. Whitehall Leather Co., 412 Mich. 172, 197, 312 N.W.2d 640 (1981); M.C.L. Sec. 418.861; M.S.A. Sec. 17.237(861); M.C.L. Sec. 418.861a; M.S.A. Sec. 17.237(861a). As noted by the WCAB, plaintiff attempted to return to work only after she unreasonably refused to perform, and the job became unavailable only because of her earlier rejection. It should also be noted that she was discharged pursuant to the terms of her contract. We find that the WCAB did not err in refusing to order the resumption of benefits.

Plaintiff claims that error arose by reason of the deductions taken by defendant as reimbursement for the sickness and accident and...