Woodman v. WCAC MEIJER COMPANIES LTD.

• Decision Date: 30 July 2002
• Docket Number: Docket No. 231133.
• Parties: Randy WOODMAN, Plaintiff-Appellee, v. WCAC MEIJER COMPANIES LTD, INCORPORATED, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

649 N.W.2d 109

250 Mich. App. 598

Randy WOODMAN, Plaintiff-Appellee, v. WCAC MEIJER COMPANIES LTD, INCORPORATED, Defendant-Appellant.

Docket No. 231133.

Court of Appeals of Michigan.

Submitted March 6, 2002, at Detroit.

Decided April 9, 2002, at 9:05 a.m.

Released for Publication July 30, 2002.

Sommers, Schwartz, Silver & Schwartz, P.C. (by Allen J. Wall and Patrick Burkett), Southfield, for the plaintiff.

Lacey & Jones (by Michael T. Reinholm), Birmingham, for the defendant.

Before: O'CONNELL, P.J., and WHITE and COOPER, JJ.

PER CURIAM.

Defendant appeals by leave granted from the October 30, 2000, order of the Worker's Compensation Appellate Commission (WCAC) that affirmed the magistrate's open award of disability benefits. We affirm. On January 22, 1997, plaintiff sustained a crushing injury during the course of his employment when his right hand became caught between two bottle carts. Within two weeks of his injury, plaintiff stopped working. He has undergone four surgeries on his hand. Additionally, he has experienced depression, anxiety, and panic attacks since his accident. According to plaintiff's testimony before the magistrate, his panic attacks are triggered whenever he hears anyone mention Meijer or he sees a Meijer logo. He takes antianxiety and antidepression medications. He has also undergone psychiatric hospitalization.

Plaintiff commenced the instant worker's compensation claim, alleging a disability based on fractured bones in his right hand, as well as depression. In a written opinion dated September 29, 1999, the magistrate concluded that plaintiff suffered from a compensable mental disability arising from his physical injury because he suffers from panic attacks whenever is he exposed to anything associated with Meijer. The magistrate further found that plaintiff cannot return to work at Meijer because of his "substantial feelings of anxiety relative to Meijer." The magistrate also found that this mental disability arose from the actual events of employment that occurred on January 22, 1997, and that work events significantly contributed to plaintiff's mental disability.

The magistrate also found as a matter of fact that plaintiff's mental disability provided him with reasonable cause for refusing defendant's bona fide offers of reasonable employment. Finally, the magistrate concluded that plaintiff's disability benefits should be reduced on the basis of a workavoidance theory. Specifically, the magistrate reasoned as follows:

The final issue in this case is whether the plaintiff's entitlement to wage loss benefits should be reduced on the theory of work avoidance. Under Haske [v. Transport Leasing, Inc., Indiana, 455 Mich. 628, 566 N.W.2d 896 (1997)], plaintiff must establish a causal link between work injury and actual wage loss. Defendant may refute the causal link by showing that plaintiff is avoiding work or actual wages. Based on the above analysis, I find that the plaintiff initially established a causal link between work injury and actual wage loss. However, I also find that the defendant presented evidence which severed the causal link as of the date of trial based on the theory of work avoidance.

In arriving at this opinion, I find plaintiff's claim that he cannot return to work at Meijer credible. However, I find plaintiff's claim that he cannot return to work with another employer is not credible. Plaintiff has no expert testimony which supports his position that he cannot return to work with another employer. Moreover, the plaintiff testified that his panic attacks can be controlled with medication. These factors suggest that the plaintiff is capable of returning to employment, except at Meijer.

My finding that the plaintiff is capable of returning to work with another employer, coupled with the evidence provided by defendant's vocational expert, Ms. Davis, establishes that the plaintiff is avoiding work and/or actual wages. I find that the plaintiff can return to work within the restrictions imposed by Dr. Burke. The plaintiff and his attorney received Ms. Davis's analysis regarding work available within the plaintiff's restrictions from Attorney Beidelman in early September. There were several jobs available to the plaintiff, within his restrictions, located within a reasonable distance of his residence. Despite having this information for at least two weeks prior to the trial, plaintiff failed to follow-up on any of these job opportunities. I find that since plaintiff was capable of performing these jobs, had adequate time to look into employment opportunities, yet failed to do so, establishes that the plaintiff was avoiding work as of the date of trial, September 20, 1999. Therefore, I find that the defendant is entitled to a reduction of wage loss benefits as of the trial date. See Mayse v. Wirt Transport Co, 1997 ACO # 528.

The magistrate further found that work paying $7 to $9 an hour was available to plaintiff, and therefore reduced his award of benefits using an average of $8 an hour. Specifically, the magistrate found that plaintiff was avoiding $320 a week in wages, and therefore reduced plaintiff's benefits accordingly.

Defendant subsequently appealed to the WCAC, arguing that plaintiff's work avoidance required a total suspension of benefits. Plaintiff cross appealed, arguing that the magistrate's determination that he was avoiding work was not supported by the record.¹ The WCAC affirmed the magistrate's conclusion that plaintiff's work avoidance required a reduction, and not a complete suspension, of benefits, opining:

Defendant [argues] plaintiff's weekly benefits should be suspended altogether. Defendant maintains that its proofs regarding work avoidance go "to entitlement, not rate." Haske, [defendant] states, at footnote 38, equates work avoidance with [MCL 418.301(5)(a)] which says that refusing a bona fide offer of reasonable employment results in suspension, not reduction, of benefits. The footnote in Haske reads in part:

"An employer may refute the causal connection between the partial disability and the employee's unemployment with evidence that other factors are the cause of the unemployment, e.g., an employee's ailments that are unrelated to his previous employment or malingering.... However, where the employer chooses to produce evidence regarding the availability of specific employment, such evidence is admissible solely to refute the causal connection."

Defendant adds that this rule is in accordance with public policy: "It is consistent with the fact that the statute pays partial benefits to those who actually perform work for lesser wages is [sic] entitled to differential benefits, but denies all wage loss benefits to those who refuse lesser paying work."

We read Haske differently than does defendant. There were no actual offers of employment in Haske, nor was there a demonstration of reasonable employment which either plaintiff was avoiding. We observe that footnote 38 continues by adding this comment, "The result under subsection 301(5)(a), when an employee refuses a reasonable offer of work, is to deny benefits." Mayse, just as the instant case, does not concern any [MCL 418.]301(5)(a) actual offer of employment. Rather, the statutory construction at issue is of [MCL 418.] 301(4); Magistrate Quist was satisfied with defendant Meijer's proofs that there were available jobs that suited plaintiff's restrictions, which plaintiff was capable of performing. Mayse recognizes this dichotomy: refusing an actual offer of reasonable employment [under] (301(5)) carries a greater penalty than failing in general to seek reasonable employment (301(4)).

The WCAC also rejected defendant's argument that the magistrate erroneously determined that plaintiff's mental disability arose out of and in the course of employment. Finally, the WCAC rejected defendant's argument that the magistrate misapplied the significant-contribution component of the test enunciated in Gardner v. Van Buren Public Schools, 445 Mich. 23, 48-49, 517 N.W.2d 1 (1994). This Court granted defendant's application for leave to appeal in an order entered May 24, 2001.

Our review in worker's compensation cases is limited. Maxwell v. Procter & Gamble, 188 Mich.App. 260, 265, 468 N.W.2d 921 (1991). "Our review of the WCAC's findings of fact is extremely deferential," George v. Burlington Coat Factory Warehouse of Southfield (On Remand), 250 Mich.App. 83, 645 N.W.2d 722 (2002); and in the absence of fraud, we must accept the WCAC's findings of fact as conclusive if there is any competent evidence in the record to support them. Mudel v. Great Atlantic & Pacific Tea Co., 462 Mich. 691, 701, 614 N.W.2d 607 (2000). However, questions of law in a worker's compensation case are reviewed de novo and the WCAC's decision may be reversed if based on erroneous legal reasoning or the wrong legal framework. DiBenedetto v. West Shore Hosp., 461 Mich. 394, 401-402, 605 N.W.2d 300 (2000); MCL 418.861a(14).

On appeal to this Court, defendant first argues that the magistrate's determination that plaintiff was avoiding available employment should have resulted in the total suspension of wage-loss benefits. We disagree.

In rejecting defendant's argument, the magistrate and the WCAC relied on the WCAC's earlier decision in Mayse v. Wirt Transport Co, 1997 Mich. ACO 528. InMayse, the magistrate found that the employee was able to work within the restrictions placed on him by his treating neurosurgeon and that the employee was avoiding actual wages. Id. Specifically, the employee refused to contact potential employers outside his hometown of Shelby, Michigan, if it required a long-distance telephone call. Id. The employee also refused to travel to his rehabilitation counselor's office to make job inquiries. Id. As a result, the magistrate in Mayse determined the employee's postinjury earning capacity and reduced his benefits by the amount of actual wages he was avoiding. Id.

On appeal the WCAC...