Steward v. Westran Corp., Docket No. 64696

• Decision Date: 20 January 1984
• Docket Number: Docket No. 64696
• Citation: 343 N.W.2d 7,130 Mich.App. 68
• Parties: Gerald STEWARD, Plaintiff-Appellee, v. WESTRAN CORPORATION and Insurance Company of North America, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 7

343 N.W.2d 7

130 Mich.App. 68

Gerald STEWARD, Plaintiff-Appellee, v. WESTRAN CORPORATION and Insurance Company of North America,

Defendants-Appellants.

Docket No. 64696.

Court of Appeals of Michigan.

Submitted June 16, 1983.

Decided Oct. 25, 1983.

Released for Publication Jan. 20, 1984.

McCroskey, Feldman, Cochrane & Brock, P.C. by Timothy J. Bott, Muskegon, for plaintiff-appellee.

Cholette, Perkins & Buchanan by Edward D. Wells, Grand Rapids, for defendants-appellants.

Before R.B. BURNS, P.J., and MacKENZIE and BANKS ^*, JJ.

PER CURIAM.

Westran Corporation (hereinafter defendant) and its insurer, Insurance Company of North America, appeal by leave granted from an April 29, 1982, opinion and order of the Worker's Compensation Appeal Board which awarded plaintiff disability compensation benefits in the amount of $112 per week.

On August 13, 1974, plaintiff was engaged in common labor at defendant's Muskegon, Michigan plant. On that day, he injured his neck and right shoulder when he was hit by a core which had been thrown by a fellow worker. For the next three years or so, plaintiff continued in his regular employment with intermittent lost time because of pain and medical treatment to his right shoulder and arm. Defendant voluntarily paid compensation benefits for plaintiff's lost time.

In November of 1977, defendant offered plaintiff favored work. The job consisted of painting the structural support poles in defendant's plant. Plaintiff was allowed to work at his own pace and to paint with whichever hand was most comfortable. On or about December 2, 1977, defendant offered plaintiff another favored work job, this time painting yellow stripes on the floor throughout the factory with a paint-lining machine. Plaintiff refused that assignment on the ground that he would not be able to do it because of his injured right arm. Plaintiff did not return to work for defendant after that date and the company ceased voluntary compensation benefits around that time.

Thereafter, plaintiff filed a claim for compensation benefits, but, by decision mailed May 22, 1979, the referee denied further compensation benefits, finding that "the plaintiff has received all the benefits he is entitled to, and further that he has been offered favored work which he has unreasonably refused".

By opinion and order entered April 29, 1982, the appeal board affirmed the referee's determination that plaintiff received all the compensation benefits that he was entitled to up to June 30, 1978, but reversed the referee's decision that plaintiff forfeited his right to future compensation benefits by refusing the company's 1977 offer of favored work. The appeal board held that defendant was entitled to suspend its payment of the benefits as long as plaintiff unjustifiably refused to continue performing suitable favored work offered by it. However, the board found that, when plaintiff asked for suitable favored work some time in June, 1978, defendant was no longer entitled to suspend compensation benefits from and after June, 1978.

It is well-settled that an injured employee who unjustifiably refuses an offer of favored work forfeits his right to compensation benefits. Bower v. Whitehall Leather Co., 412 Mich. 172, 312 N.W.2d 640 (1981). However, the question of whether such refusal results in a permanent forfeiture of compensation benefits appears to be one of first impression in Michigan. The WCAB ruled that an unjustifiable refusal of favored work merely suspends an employee's right to compensation benefits for the duration of the refusal, reasoning as follows:

"The defendant has argued, based upon cited 'forfeiture' language contained in the recently released Supreme Court decision in Bower v Whitehall Leather Co, 412 Mich 172 (1981), that an unjustified refusal to continue performing suitable favored work should result in a permanent and irrevocable loss of weekly benefits. The applicable general rule, as enunciated in Bower, is that 'interruptions of work caused by voluntary actions of the employee * * * result in a forefeiture of benefits.' At issue here is the gloss to be given to the term 'forfeiture.'

"Nowhere in the Bower opinion is the term 'forfeiture,' as it applies to the judically-created favored work setting, specifically defined. However, during the following discussion of the impact of an 'unjustifiable refusal to accept rehabilitation pursuant to a decision of the director,' the term 'forfeiture' is equated with a 'loss or...