Pulver v. Dundee Cement Co.

Wahls, J.

(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 NW2d 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 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, Boden v Detroit Lions, Inc (On Remand), 193 Mich App 203, 206; 483 NW2d 673 (1992).

Bower, supra, held that not only should the reasonableness and good faith of an employer’s offer of favored work be considered in determining whether a claimant is disqualified from receiving benefits, but that the reasonableness and good faith of an employee’s refusal, should also be examined. The distance between an employee’s residence and the location of the work offered is a consideration in assessing the reasonableness of both the offer and the refusal. MCL 418.301(9); *96MSA 17.237(301)(9); Bower, supra, p 196, n 16. Application of the reasonableness standard requires a court to examine all the facts and circumstances in each case. Id., p 185.

Bower, however, most certainly does not stand for the proposition that an employee’s refusal is unreasonable per se where the employee is not otherwise employed at the time the offer is made, as the majority seems to hold. The majority reaches this conclusion by referring to the Bower Court’s admonishment that a claimant cannot avoid a good-faith offer by removing himself from the locality of the employer; in other words, by creating an unreasonable distance for the purpose of avoiding work. Id., p 196. Allowing benefits in that circumstance would not further the purpose of the act. Id. I agree with this policy, but do not understand it to require that an employee must actively work in the new locale as a precondition for finding that a relocated employee’s refusal of an offer is reasonable. Is the employee to be given no allowance of time to find work? Or may, for example, an employer escape paying benefits by offering favored work to a distant employee on the day after the employee moves? It is my belief that such a requirement would not serve the purpose of the act because it would discourage disabled employees from relocating and seeking employment in other states with better job prospects than Michigan. In the present case, not even an inference of bad faith or an attempt to avoid work on plaintiff’s part may be drawn from the wcab’s findings. In light of the distance between plaintiff’s Florida residence and the location of the job offered, and viewing all the other facts and circumstances of the case, I would affirm the wcab’s conclusion that plaintiff’s refusal was with good and reasonable cause.

*97Moreover, even though the wcab found that defendant’s offer was bona fide, I would hold that the offer itself was not an offer of "reasonable employment” as that term is defined by MCL 418.301(9); MSA 17.237(301)(9). Plaintiffs residence, at the time the offer was made, was Florida, and it is patently obvious that a job in Michigan is not within a reasonable distance from Florida. Id.

I would affirm the order of the wcab.