Paschke v. Retool Industries

Griffin, J.

I respectfully dissent. I agree with the Court of Appeals that, under the particular circumstances of this case, plaintiff Raymond Paschke, by seeking and obtaining unemployment compensation benefits, is judicially estopped from claiming that, for the same period, he was totally disabled and entitled to worker’s compensation benefits.

Under the doctrine of judicial estoppel, "a party who has successfully and unequivocally asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a subsequent proceeding.” Lichon v American Universal Ins Co, 435 Mich 408, 416; 459 NW2d 288 (1990). The underpinnings of the doctrine were explained by the court in Edwards v Aetna Life Ins Co, 690 F2d 595, 599 (CA 6, 1982):

The essential function of judicial estoppel is to prevent intentional inconsistency; the object of the rule is to protect the judiciary, as an institution, from the perversion of judicial machinery. . . . Judicial estoppel addresses the incongruity of allowing a party to assert a position in one tribunal and the opposite in another tribunal. If the second tribunal adopted the party’s inconsistent position, then at least one court has probably been misled. See Konstantinidis v Chen [200 US App DC 69, 74] 626 F2d [933] 938 [1980],
In light of the policies underpinning judicial estoppel, the rule can not be applied in a subsequent proceeding unless a party has successfully asserted an inconsistent position in a prior proceeding. . . . Absent judicial acceptance of the inconsistent position, application of the rule is *523unwarranted because no risk of inconsistent results exists. Thus, the integrity of the judicial process is unaffected; the perception that either the first or the second court was misled is not present.

The doctrine of judicial estoppel is to be applied with caution. As the court explained in Allen v Zurich Ins Co, 667 F2d 1162, 1166-1167 (CA 4, 1982),

The circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle, but they may be found where neither collateral estoppel nor equitable estoppel . . . nor any requirements of election of remedies or theories . . . would apply. Its essential function and justification is to prevent the use of "intentional self-contradiction ... as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” Scarano v Central R Co, 203 F2d [510] 513 [CA 3, 1953],

The instant case involves interpretation of statutes governing two different compensation systems,'the Michigan Employment Security Act and the Worker’s Disability Compensation Act. As a condition precedent to the receipt of unemployment benefits, the mesa requires:

An unemployed individual shall be eligible to receive benefits with respect to any week only if the commission finds that . . . [t]he individual is able and available to perform suitable full-time work of a character which the individual is qualified to perform by past experience or training, which is of a character generally similar to work for which the individual has previously received wages, and for which the individual is available, full time, either at a locality at which the individ*524ual earned wages for insured work during his or her base period or at a locality where it is found by the commission that such work is available. [MCL 421.28(1)(c); MSA 17.530(1)(c). Emphasis added.]

The definition of "disability” for worker’s compensation purposes at the time of the plaintiff’s alleged injuries provided:

As used in this chapter, "disability” means a limitation of an employee’s wage earning capacity in the employee’s general held of employment resulting from a personal injury or work related disease. The establishment of disability does not create a presumption of wage loss. [MCL 418.301(4); MSA 17.237(301)(4). Emphasis added.][1]

Plaintiff in the case at bar sought and was awarded unemployment benefits following a hearing contested by his employer, defendant Retool Industries. He subsequently filed for worker’s compensation benefits, alleging that he suffered total disability during that same period. He ultimately received the desired benefits from the Worker’s Compensation Appeal Board. While the mesa prohibits the receipt of unemployment compensation benefits during a period of continuous disability, MCL 421.28a(5); MSA 17.530(1)(5),2 the converse is *525not statutorily proscribed. The wdca does not explicitly address the present situation — where a claimant who professes to be "able and available” to work so as to receive unemployment benefits subsequently seeks worker’s compensation benefits for alleged total disability during the same period on the basis of his claim that he was unable to return to work for his specific former employer, not necessarily the general field of available employment.

Plaintiff maintains that his successful assertion of his ability to work for purposes of unemployment compensation eligibility is not irreconcilably inconsistent with his claim of disability as defined in the wdca. Because entitlement to unemployment compensation benefits compares the claimant against a different field of labor than does entitlement to worker’s compensation benefits, plaintiff alleges that there is no inconsistency in the assertion that there is some work that a claimant such as himself "is qualified to perform by past experience or training,” MCL 421.28(1)(c); MSA 17.530(1)(c), so as to qualify for unemployment compensation benefits, but that is not within his general field of employment in which he was employed by defendant under MCL 418.301(4); MSA 17.237(301)(4) for purposes of worker’s compensation. Simply put, "[he] was entitled to unemployment compensation benefits because there was some work he could perform, and also entitled to worker’s com*526pensation benefits because there is some work he cannot perform.”

Supporting this point of view, the majority in the instant case cites Professor Larson for the proposition that

"[a]t first glance the two positions may appear mutually exclusive; but the inconsistency disappears when the special meaning of disability in workmen’s compensation is remembered, involving, as we have seen, the possibility of some physical capacity for work which is thwarted by the inability to get a job for physical reasons. Thus, the injured claimant may honestly represent to the Employment Security office that he is able to do some work, and with equal honesty tell the Compensation Board later that he was totally disabled during the same period since, although he could have done some kinds of work, no one would give him a job because of his physical handicaps. [1C Larson, Workmen’s Compensation, § 57.65, p 10-492.50.]” [Ante, pp 513-514.]

Use of the doctrine of judicial estoppel is fact specific and depends on the facts and circumstances of each case. The particular facts now before us differ significantly from the situation described by Larson, supra, and the situation involved in Henry v Ford Motor Co, 291 Mich 535; 289 NW 244 (1939), also cited by the majority.

First, as already indicated, plaintiff, by the mere fact of his application for and acceptance of unemployment benefits,3 represented to the mesc that *527he was

able and available to perform suitable full-time work of a character which [he] is qualified to perform by past experience or training, which is of a character generally similar to work for which [he] has previously received wages, and for which [he] is available, full time .... [MCL 421.28(1)(c); MSA 17.530(1)(c).]

Plaintiff was qualified by his past experience to be an office manager. Plaintiff’s testimony indicates that he began receiving unemployment compensation in November 1983, and received his last payment on July 14, 1984. On August 5, 1983, plaintiff filed a petition for hearing, claiming disability of

[hipertension, nervousness, depression and gout. Aggravation of pre-existing conditions, known and unknown and the complications, developments and sequelae thereof.

He based his claim on an occupational disease date of March 22, 1983, linked to

[pressures of companies [sic] financial problems and trouble shooting for the company and having burden shifted to him and being demoted from office manager to assistant to the manager and perceptions of being discriminated against due to age caused him to get upset, be tense and nervous and; all arising out of and in the course of the employment.

A hearing referee denied plaintiff’s claim. On appeal, plaintiff claimed that he sustained his burden of proof in proving psychiatric or hypertension disabilities of a continuing nature. The wcab *528agreed, and in an opinion dated June 29, 1990, ordered

that the decision of the [hearing referee] in this cause shall be and it hereby is reversed. Plaintiff is found to be totally disabled as of March 22, 1983, subject to a personal injury of a psychiatric nature and hypertension. Defendant shall pay weekly benefits of $280.19 per week from March 23, 1983, to July 15, 1985, and until further order ....

At the worker’s compensation hearing, plaintiff testified that as of June 1983 he was able to resume full-time unrestricted work following his medical leave:

Q. Did you want to return to work?
A. Yes.
Q. Did you communicate that to your employer?
A. Yes.
Q. Now, what was told to you at the time that you requested to be reemployed?
A. I believe it was in June. I told him that I was going to the doctor and I was going to try to get him to give me a release to go back to work, and if so, I would wait until after the Fourth of July.
Q. Now, during this time you were off up until June, how were you feeling?
A. I was getting to feel better gradually. I would have periods of blood pressure and so on, go up or, like I say, I didn’t sleep quite as good. But I felt I was coming around and saw no reason that I shouldn’t try to get back to work. [Emphasis added.]

Plaintiff testified that he was "[s]hocked” upon learning that he could not resume his regular job but would have to accept what was in effect a demotion. The reason plaintiff gave for not return*529ing to work for defendant was the personalities involved, not the inability to do the job. Plaintiff testified:

A. I couldn’t work under those relationships, under those conditions.
Q. What about them can’t you do? Can’t you handle?
A. The environment primarily, and knowing what I had gone through. I couldn’t go back there and work with Carolyn Wilkerson or under Mr. Wilson.
Q. What specifically about the environment?
A. I just couldn’t tolerate it. I don’t think there would be a close relationship between us in life anymore. Not under the circumstances.
Q. But you have to really describe what exactly about that environment made you get the way you were.
A. Well, the treatment I got or, let’s say the cold shoulder, the good term, the conditions of the shop, the relationships with the customers. And I couldn’t feel I could — you know, I would be dishonest trying to protect the company towards them. I couldn’t protect the company anymore.

Plaintiff really wanted to return to his usual office manager job for defendant, and he admitted:

Q. You wanted to go back to your full, regular job duties? You didn’t want to be what you say was demoted? You didn’t want any pay or benefit cut; is that correct?
A. Right.
Q. Okay. So you applied for Unemployment Compensation, didn’t you?
A. Yes.

After he stopped working at defendant’s business, plaintiff looked for other employment. He testified, for example, that he applied for more *530than twelve office manager positions in Michigan. He sought office manager jobs from "[a] dozen at least” other employers in Florida after moving there. At the time of trial, plaintiff was still looking for a position with companies like the defendant.

Plaintiff’s wife corroborated this testimony, stating that she and plaintiff prepared his résumé and contacted "between twenty-five and thirty” companies in Florida seeking employment for plaintiff in his field. She testified that plaintiff was applying for the same type of office manager position that he had held with defendant in Michigan and that at the time of trial plaintiff was still seeking employment in Florida.

The Court of Appeals succinctly characterized plaintiff’s claim, and he does not now dispute it, that

if he had any disability at all, it was an inability to continue to work for Herman Wilson with Carolyn Wilkerson as office manager. Plaintiff claims that he could do the same managerial work he had been doing for Retool Industries, provided his job environment excluded Carolyn Wilkerson as coworker and Herman Wilson as employer. [198 Mich App 702, 705; 499 NW2d 453 (1993).]

By virtue of plaintiff’s acceptance of unemployment benefits from the mesc, plaintiff averred that he met the condition precedent to the receipt of those benefits, namely, that he was "able and available to perform suitable full-time work [for which he] is qualified to perform by past experience or training . . . .” MCL 421.28(1)(c); MSA 17.530(1)(c). Plaintiff prevailed in this regard following a contested hearing. Yet given the factual background, plaintiff subsequently convinced the wcab that he was totally disabled in his "general *531field” of employment. MCL 418.301(4); MSA 17.237(301)(4).

This is not a situation in which partial disability has been alleged, or even in which the possibility of some physical capacity for work is thwarted by the inability to get a job for physical reasons, as described by Larson, supra. The present facts are likewise distinguishable from Henry v Ford Motor Co, supra. In Henry, the injured plaintiff was given favored work and was then laid off. He applied for unemployment benefits. The Court recognized that "one permanently disabled to continue the work that he was engaged in when the accident occurred may nevertheless be able to do some light work of a different nature than that in which he was previously engaged.” Id., p 538. The Court found no paradox:

The finding that the employee is totally disabled so far as returning to his pre-injury work is not necessarily inconsistent with a finding that he is able to do, and is available for, the favored or rehabilitating work, so long as he still is in the labor market despite the injury. [Id., p 540.]

However, the Court of Appeals in the instant case appropriately noted,

Here, in contrast to Henry v Ford Motor Co, supra, plaintiff did not forthrightly seek unemployment compensation benefits, indicating a disability-based limitation on the positions he was capable of accepting. Rather, plaintiff indicated an unrestricted ability to continue in managerial employment, in blatant opposition to his subsequent claim of psychiatric and hypertensive disability in precisely the same employment for exactly the same time frame. [198 Mich App 707.]

The instant case presents a plaintiff who tried to *532get his former job back from defendant, refused a different job from defendant out of an apparent lack of desire to work under a former subordinate, represented to the mesc that he was "able and available” to work full-time in his usual line of work (office managerial work), sought (and continues to seek) employment in Michigan and now in Florida, yet claims that he is totally disabled, i.e., that his wage-earning capacity in his general field of employment has been foreclosed for the same periods. The absurdity of such double recovery in this particular situation should be acknowledged by the Court.4

Plaintiff lastly submits that there is no need to invoke the doctrine of judicial estoppel because the wdca contains an express provision that reduces a claimant’s worker’s compensation benefits, dollar for dollar, by the amount of any unemployment compensation previously received. MCL 418.358; MSA 17.237(358).5 Plaintiff argues that because *533§ 358 specifically references not only the partial disability section of the wdca, but the section concerning total disability as well (§ 351), the Legislature has implicitly acknowledged instances in which both unemployment and total disability benefits would be recoverable. However, § 358 presupposes an entitlement to worker’s compensation benefits. It would apply to the "favored” work situation described in Henry, supra, where an employee claims and receives worker’s disability compensation benefits from the employer first, resumes "favored” work, and then is involuntarily terminated. In such a situation, the employer would be responsible to reinstate disability compensation benefits and also pay for unemployment insurance benefits for the same period. Section 358 manages this special problem by providing for a setoff adjustment.

In the case at bar, the doctrine of judicial estoppel goes to the very heart of plaintiff’s eligibility for benefits. A setoff is irrelevant if the plaintiff should not have been allowed to advance inconsistent positions in the first place.

In conclusion, although the principle of judicial estoppel is one to be applied with caution, I believe that the Court of Appeals properly applied it under the particular circumstances of this case. The record demonstrates that the plaintiff earlier successfully asserted a position respecting his employability that is antagonistic to the position asserted before the wcab. I would affirm the Court of Appeals decision reversing the wcab’s award of total disability benefits to the plaintiff for the same period that he was receiving unemployment benefits.6

*534Riley, J., concurred with Griffin, J.

A different standard took effect in June 1987, defining "disability” as "a limitation of an employee’s wage earning capacity in work suitable to his or her qualifications and training . . . .” MCL 418.301(4); MSA 17.237(301)(4), as amended by 1987 PA 28. However, this definition applies solely to those injured on or after its effective date. Turrentine v General Motors Corp, 198 Mich App 572; 499 NW2d 411 (1993).

MCL 421.28a(1), (5); MSA 17.530(1)(1), (5) provides in pertinent part:

(1) Notwithstanding any other provision of this act, an unemployed individual who has a benefit year in effect and who has not exhausted benefit entitlement may have unused credit *525weeks preserved during a period of continuous involuntary-disability if a written request from the individual to preserve the unused credit weeks is received by the commission ....
(5) As used in this section, a period of "continuous disability” means a period continuing for more than 14 consecutive days during which an unemployed individual is not able and available to perform full-time work, as described in section 28(1)(c), due to injury, illness, or hospitalization.

It is unnecessary to rely upon plaintiff’s representations made to the mesc and elicited at the worker’s compensation hearing (including the attendant evidentiary issues that accompany the use of these statements, see majority opinion, ante, pp 515-519; Storey v Meijer, 431 Mich 368; 429 NW2d 169 [1988]), in order to find irreconcilable inconsistency here. The relevant statutory standards for the mesa and the wdca set forth above, when applied to the record before the Court (independent of any testimony given to the mesc) provide a sufficient basis for the application of judicial estoppel.

The unique circumstances of this case should forestall any notion that the doctrine of judicial estoppel is to be applied with a broad brush. On the contrary, as the Court of Appeals recognized,

Judicial estoppel bars only wholly inconsistent claims; it does not penalize an employee on the basis of information that only belatedly contradicts a factual claim. For example, if an employee claims unemployment compensation on the basis of no disability, but subsequently is diagnosed as suffering from some hitherto unsuspected work-related disabling disease, again, coordination is the proper response. Or, for an employee receiving unemployment compensation, upon discovery of a disability or compensable restriction on prospective employment, nothing compels the application for or acceptance of further unemployment benefits. [198 Mich App 709-710.]

Net weekly benefits payable under section 351, 361, or lump sum benefits under section 835, shall be reduced by 100% of the amount of benefits paid or payable to the injured employee under the Michigan employment security act, Act No. 1 of the Public Acts of the Extra Session of 1936, as amended, being sections 421.1 to 421.67a of the Michigan Compiled Laws, for identical periods of time and chargeable to the same employer. [MCL 418.358; MSA 17.237(358).]

The matter of judicial estoppel aside, the crux of the instant case is the issue whether the inability to work for one’s former employer, and a claim of total psychiatric disability in this regard, limits an *534employee’s "wage earning capacity” in his "general field of employment” under the statutory standard in effect at the time of plaintiff’s injury. MCL 418.301(4); MSA 17.237(301)(4).

In Kidd v General Motors Corp, 414 Mich 578, 591-592; 327 NW2d 265 (1982), the Court discussed the standard to be used in determining disability:

It is well-established that the standard to be used in general disability cases is whether there is an impairment in wage-earning capacity. This is determined by comparing post-injury with pre-injury ability to compete with the able-bodied for jobs within the type of work in which the injury occurred. [Emphasis added, see also Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 251; 262 NW2d 629 (1978); Kaarto v Calumet & Hecla, Inc, 367 Mich 128; 116 NW2d 225 (1962); Adair v Metropolitan Bldg Co, 38 Mich App 393, 403; 196 NW2d 335 (1972).]

The Legislature codified this judicial definition of disability when it amended the wdca, 1981 PA 200, in § 301(4), and defined "disability” as "a limitation of an employee’s wage earning capacity in the employee’s general field of employment . . . .”

Because the Court of Appeals in the case at hand disposed of the case on the issue of judicial estoppel, raised sua sponte, it did not reach the merits of plaintiff’s total disability claim. Thus, I would alternatively remand this matter to the Court of Appeals for consideration of whether the wcab applied the correct legal standard — i.e., whether being disabled from one’s previous particular employment suffices to establish "disability” in the employee’s "general field of employment” pursuant to § 301(4).