Derr v. Murphy Motor Freight Lines

Brickley, C.J.

(dissenting). I agree with the lead opinion’s decision to uphold the administrative findings “that the defendant employer made a bona fide offer of reasonable employment and that the plaintiff employee unreasonably refused the offer.” Ante at 378-379. However, because I disagree with the lead opinion’s conclusion that the plaintiff may now be entitled to the reinstatement of his worker’s compensation benefits, I respectfully dissent.

i

I disagree with part in of the lead opinion, where it concludes that the wdca compels the reinstatement of the plaintiff’s benefits if he “remains available for a reasonable-employment position.” Id. at 392. I also disagree with the analysis contained in the lead opinion, which focuses on the termination of the offer, for any reason, as the key inquiry in whether the plaintiff is entitled to benefits. Although the lead opinion contains the brief conclusion that the case should be remanded for a factual determination whether the plaintiff is available to work, its analysis centers on *395the actions of the employer, not the employee. Where it does look to the employee, it queries into the employee’s “availability,” where the inquiry should be the employee’s refusal.

I agree with the lead opinion that the applicable statute is subsection 301(5) (a) of that act. In relevant part, that statute provides that, following an unreasonable refusal of a bona fide offer of reasonable employment,

the employee shall be considered to have voluntarily removed himself or herself from the work force and is no longer entitled to any wage loss benefits under this act during the period of such refusal. [MCL 418.301(5)(a); MSA 17.237(301)(5)(a).]

The lead opinion concludes that “the period of such refusal” may end when the offer of employment is withdrawn for any reason, including the employer’s bankruptcy. I dissent because the phrase “period of such refusal” as used in the wdca refers to the employee’s voluntary removal from the work force. Accordingly, that period ends only when the voluntary removal ends.1

The lead opinion arrives at the conclusion that “a literal reading of the act generally favors reinstatement of benefits . . . .” Ante at 388. This statement is based on its analysis of why its reading is the preferred one. Id. at 387, n 4. Thus, rather than actually resting on the language of the statute, the lead opinion’s interpretation is grounded in the fact that it does not see the other readings of the statute as “com*396port[ing] with the policy reasons underlying the reasonable-employment doctrine . . . Id. at 387, n 4. The lead opinion’s analysis fails to adequately deal with the language of the statute. There is nothing in that language that equates the phrase “period of such refusal” with an inquiry into whether the offer is still open.

The lead opinion’s assertion that benefits must be reinstated when the offer is withdrawn does not follow from the plain language of the statute. To mandate that result, the statute would need to contain a statement that “the employee is not entitled to benefits during the period the offer is open,” or similar language. Under the plain language of the act, the dis-positive question is whether the refusal to work has ended, not whether the offer of employment is still open. In the language used by the Legislature, the “period of such refusal” refers to the employee’s voluntary absence from the work force. The plain meaning of this statement is that the employee must end that voluntary absence in order to be entitled to the reinstatement of benefits.

The initial burden of offering reasonable employment is on the employer; after that burden is met, the employee has the burden of not unreasonably refusing that employment. Similarly, the burden of ending the voluntary removal caused by the unreasonable refusal must fall on the employee. The majority characterizes the requirement that an employee indicate a willingness to return to work as judicial engrafting not required by the statute. However, this requirement is simply common sense. The “period of such refusal” must end for benefits to be reinstated, and it must be possible to determine whether it has ended. *397Only the employee can end the employee’s refusal, and only the employee can demonstrate that it has ended. As I stated in Nederhood v Cadillac Malleable Iron Co, 445 Mich 234, 250; 518 NW2d 390 (1994),

We conclude then that an employee who has ceased to perform existing favored work should establish a good-faith willingness to accept or resume favored work that remains available in order to restore eligibility for benefits.

We must avoid an absurd construction of the statute, such as requiring an employer to divine when an employee’s unreasonable refusal has ended.

The courts are directed to consider several factors, where relevant, in determining whether an employee’s initial refusal of reasonable employment is for good and reasonable cause.

Those factors may include: (1) the timing of the offer, (2) if the employee has moved, the reasons for moving,12 (3) the diligence of the employee in trying to return to work,
(4) whether the employee has actually returned to work with some other employer and, (5) whether the effort, risk, sacrifice or expense is such that a reasonable person would not accept the offer.

[Pulver v Dundee Cement Co, 445 Mich 68, 81; 515 NW2d 728 (1994).]

I would apply a similar test for determining whether an employee is prolonging an unreasonable and voluntary removal from the work force. In the instant case, the plaintiff applied for his pension benefits the day after refusing the defendant’s offer of reasonable *398employment. The plaintiff then moved to northern Michigan to live in a home he had purchased for his retirement a year before his injury. He has never again attempted to return to work with the defendant or any other employer. No evidence supports the conclusion that, were the defendant solvent, the plaintiff would have accepted its offer of employment. I therefore conclude that the defendant’s bankruptcy is not a cause in fact of the plaintiff’s continuing removal from the work force. Of course, nothing prevents the plaintiff from ending his period of refusal and thereby obtaining the reinstatement of his benefits.

The lead opinion also asserts that a liberal reading of the act favors the reinstatement of benefits. This undercuts the lead opinion’s assertion that the plain language of the statute mandates its conclusion because statutory construction comes into play only when there is ambiguity in a statute. I also believe that the plain language of the statute mandates the result, but I reach a different result than the majority. There is no language in the statute suggesting that the “period of such refusal” is to be equated with the amount of time an offer is held open for a disabled employee. This Court should not attempt to create ambiguity where none exists. As we stated in Nederhood, the “only plausible interpretation” of the statute is that the suspension of benefits is “for the duration of the employee’s unreasonable refusal to accept employment.” 445 Mich 248. Thus, the period of refusal is calculated on the basis of the employee’s refusal, not on any actions of the employer. There is no language supporting a competing interpretation that the period of refusal is to be equated with the duration of the offer.

*399Although I would not reach the stage of statutory construction, I note that the lead opinion’s position is not mandated by the principle that the wdca should be liberally construed to grant rather than deny benefits when possible. This is not a case in which benefits should be granted. The majority cites to Nederhood, stating:

It would seem that a permanent forfeiture of benefits is not in accord with a liberal construction of the Worker’s Disability Compensation Act. [445 Mich 247.]

That statement was made in a case in which this Court was required to interpret the statute to determine whether a permanent forfeiture was appropriate in order to support our decision to suspend benefits temporarily. Because the language of the statute mandated that conclusion, there was no need to construe the statute, and the statement cited is dicta. It should not be read as a statement that a permanent forfeiture of benefits can never occur, only that forfeitures are disfavored. Further, this focus on whether there can be a permanent forfeiture is misplaced. At issue is whether the plaintiff is currently entitled to benefits. Because an offer of reasonable employment can issue from another employer, the plaintiff can end his refusal by seeking or accepting other employment. If that were to happen, his benefits could be reinstated. Thus, the forfeiture is not necessarily permanent.

Moreover, the act does not preclude a permanent forfeiture. This Court’s holding in Nederhood was that the voluntary cessation of favored work per se does not result in a permanent forfeiture of benefits. However, this Court has held that a permanent forfeiture of benefits may result from “discharges based on *400moral turpitude.” 445 Mich at 242, n 7. This Court thus did not foreclose the possibility of a permanent forfeiture resulting from something more than the initial cessation of work. This is such a case, where the plaintiffs continued refusal to work serves to cut off his entitlement to benefits. Although the act should be construed liberally, it should not be given a forced construction to grant benefits in a situation not intended by the Legislature. The statutory language does not mandate or support the lead opinion’s conclusion.

n

Perhaps because the language of the statute does not support its decision, the lead opinion focuses on the policy reasons underlying the wdca as support for the proposition that the plaintiff may be entitled to benefits. I would decide the case on the basis of the language of the statute and accordingly would not reach the policy considerations. However, I will address those considerations in order to express my disagreement with the conclusion in the lead opinion that public policy favors the award of benefits in this case.

The WDCA has the dual purposes of mitigation and rehabilitation. Bower v Whitehall Leather Co, 412 Mich 172, 182; 312 NW2d 640 (1981).

The primary purpose of the [favored-work] doctrine is that of mitigation. It allows an employer to reduce or completely eliminate compensation payments by providing work within the injured employee’s physical capacity. At the same time, it encourages the employee to return to productive employment rather than to remain idle, thus also serving a rehabilitative function.

*401Specifically, the purpose of mitigation is served by permitting an employer to provide favored work to a disabled employee, rather than paying worker’s compensation benefits and paying another worker to fill the favored-work position. The purpose of rehabilitation reflects a legislative decision that it is better for a disabled employee to return to work, when possible, than simply to collect benefits. Cutting off benefits gives the employee a financial incentive to accept an offer of reasonable employment. Furthering the goals of mitigation and rehabilitation requires the continued suspension of the plaintiff’s benefits.

The lead opinion asserts that when the offer is no longer available for acceptance, denying a disabled employee benefits works no further practical effect in encouraging that employee to accept employment. Thus, the lead opinion concludes that the continued denial of benefits does not further the purpose of rehabilitation. However, the rehabilitative purpose is not furthered by awarding benefits to recalcitrant employees. In fact, rehabilitation is hampered by the rule announced by the lead opinion, because it encourages employees to refuse to work. The lead opinion gives disabled employees a motive to refuse reasonable employment, confident that benefits will be awarded as soon as the employer fills the position with another worker and the offer is no longer open to the disabled employee. Although this is not the result in the instant case, because the employer is no longer in business, it is the inevitable consequence of the lead opinion’s holding that a withdrawal of the offer for any reason entitles the employee to reinstatement of benefits. This circumvents the reha*402bilitative purpose of the act by rewarding the failure to accept reasonable employment.

The lead opinion stresses that an employer who is no longer in business can still attempt to mitigate damages by “arranging] a position within an injured employee’s physical capacity with another employer or through the MESC.” Ante at 390. Thus, the purpose of mitigation can still be furthered. However, the language of the act does not contemplate that the employer is to arrange the work with another employer; rather, it merely states that an employee is obligated not to unreasonably refuse “ [i]f an employee receives a bona fide offer of reasonable employment from the previous employer, another employer, or through the Michigan employment security commission. . . .” MCL 418.301(5)(a); MSA 17.237(301)(5)(a). The lead opinion thus attempts to impose a burden on the employer beyond that imposed by the statute by making the employer responsible for finding and offering a job that it has no reason to think the employee will accept.

The rule announced by the lead opinion also frustrates the employer’s ability to mitigate damages. Because the lead opinion would award benefits once an offer is withdrawn for any reason, an employer may be forced to bear the double burden of paying benefits to a disabled employee who refuses work and paying wages to the worker used to fill the position originally offered to the disabled employee. The risk of this is heightened because an offer of reasonable employment must be for a specific job, not merely a statement that something will be found. Kolenko v United States Rubber Products, Inc, 285 Mich 159; 280 NW 148 (1938). An offer of reasonable work is *403likely to be for a position that the employer needs to fill. The lead opinion stymies the employer’s ability to fill that position, and in so doing frustrates the mitigation purpose of the act.

The lead opinion also takes issue with the defendant’s argument that the good faith of the parties should be taken into account in determining the entitlement to benefits. However, the statute states that a refusal of employment “without good and reasonable cause” is considered a voluntary removal from the work force. As stated above, that voluntary removal is what must end in order for the “period of such refusal” to be over. Thus, the parties’ good faith is extremely relevant in determining whether the refusal is ongoing or ended. Further, this Court has previously recognized that “the actions of both the employer and the employee must be judged against standards of good faith and reasonableness,” in determining whether there has been a bona fide offer and whether the refusal was reasonable. Pulver at 77. Those duties of good faith are no less important in determining whether the refusal is over so that the employee is entitled to the reinstatement of benefits. Under this standard, the plaintiff is not so entitled. As the lead opinion notes, his initial refusal of the work was unreasonable. That unreasonable refusal is not over.2

*404CONCLUSION

There is no reason to award the plaintiff benefits simply because his employer went into bankruptcy. Although that employer’s offer of reasonable employment is no longer available, there is no supporting evidence that the plaintiff would be willing to work at any job. He thus has failed to demonstrate that he is no longer voluntarily removed from the work force. That failure means that the statutory period of refusal is not over, and he is not entitled to the reinstatement of worker’s compensation benefits. In order to once again receive benefits, the plaintiff must demonstrate that he is, in good faith, no longer voluntarily removed from the work force. I would uphold the Court of Appeals result, but for the reasons stated in this opinion. Because there is no evidence suggesting that the plaintiff’s refusal has ended, there is no need to remand for further factual determinations.

Riley, J., concurred with Brickley, C.J. Weaver, J., took no part in the decision of this case.

The question whether an offer must be kept open for a reasonable amount of time is beyond the scope of the facts before us.

An attempt to avoid accepting a bona fide offer of reasonable employment by moving would never constitute good and reasonable cause.

The lead opinion argues that the plaintiff’s retirement does not necessarily imply an intention to permanently withdraw from the work force, and that it may have been economically necessary for him to begin drawing his pension. Ante at 391, n 6. Although I recognize the truth of this as a general proposition, it does not overcome the fact that the plaintiff in this case failed to act in good faith. He never attempted to perform the work offered, and there is no evidence suggesting that he would return to the work force to take a different job. Because he could be earning wages, it was not necessary for him to take his pension. Thus, the fact *404that he did so supports the conclusion that he has no intention of returning to work.