Jones-Jennings v. Hutzel Hospital

Markman, P.J.,

(dissenting). I respectfully dissent. As long as the wcac applies the correct legal standard and there is any competent evidence to support its findings, the courts are not to disturb the wcac’s findings. Pulver v Dundee Cement Co, 445 Mich 68, 82-83; 515 NW2d 728 (1994); York v Wayne Co Sheriff's Dep’t, 219 Mich App 370; 556 NW2d 882 (1996). Here, the issue is whether plaintiff refused “a bona fide offer of reasonable employment,” as defined by MCL 418.301(9); MSA 17.237(301)(9), for “good and reasonable cause” under MCL 418.301(5)(a); MSA 17.237(301) (5) (a).

The Pulver Court held that the question whether a refusal of reasonable employment is for good and reasonable cause is one of fact, not law. Id. at 81, 83. It held:

We do not attempt to divine what “good and reasonable cause” is. What is reasonable in one situation may not be in another. Therefore no exhaustive definition could ever be formed to encompass the varied nuances of such a deceptively simple legal principle as “good and reasonable cause.” *113The case at bar does, however, provide examples of some of the factors that may be considered in gauging the reasonableness of an employee’s actions.
These factors may include: (1) the timing of the offer, (2) if the employee has moved, the reasons for moving, (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.
We provide these factors merely as examples. Not every personal consideration will constitute good and reasonable cause entitling an employee to continued benefits after a refusal of an offer of reasonable employment. It is left to the sound discretion of the factfinder to carefully examine the facts and circumstances of each case to determine what is good and reasonable cause in any given situation. [Id. at 81-82.]

The Pulver Court reinstated the decision of the WCAB (the predecessor of the wcac), concluding that competent evidence supported the wcab’s finding that the plaintiff had “good and reasonable cause” for refusing the defendant’s offer in the context of her move to Florida. Id. at 82-83. It specifically noted that the plaintiff repeatedly called the defendant over a one-year period inquiring into the availability of work and that when she was unable to find suitable work she moved to Florida in a good-faith effort to improve her health, be closer to her family, and find suitable work. Id. She signed a one-year lease and paid a security deposit, evidencing her intent to live there permanently. Id. at 83. On the basis of these facts, the wcab found that plaintiff did not move to avoid the job offer in Michigan. Id.

Bower v Whitehall Leather Co, 412 Mich 172; 312 NW2d 640 (1981), also involved an injured employee *114who moved out of state. The plaintiff and his wife obtained employment in Florida. The Court noted the purposes of the Worker’s Disability Compensation Act: to compensate the employee while incapacitated and to encourage him to rehabilitate himself and rétum to gainful employment. Id. at 191. It rejected an absolute rule requiring employees to accept favored work that they are physically capable of performing without consideration of various nonphysical factors. Id. at 194. It found that the plaintiff refused the defendant’s offer of work for “good and reasonable cause.” It held at 196:

It should be recognized that we do not hold that just any personal consideration may excuse a refusal of favored work. Nor may an employee avoid returning to work tendered upon a good-faith offer by merely removing himself from the locality of the employer. Only under circumstances similar to those in the instant case, where the claimant’s actions further the policies of the statute, can such a rejection be justified.

In the instant case, the WCAC found that the magistrate erred in finding that plaintiff refused an offer of reasonable work for “good and reasonable cause” under § 301(5)(a). The WCAC found that the magistrate’s analysis was inadequate because he considered only the distance between defendant’s place of business and plaintiff’s new residence in Ohio. Pulver and Bower indicate that when a party moves far from the defendant’s place of business, additional inquiry into the circumstances of the move and efforts to obtain employment in the new location are necessary to the analysis of the question of the party’s continued eligibility for benefits. Pulver at 81-82; Bower at 196. *115Accordingly, I believe that the WCAC correctly concluded that the magistrate’s analysis was inadequate.

As with the magistrate, plaintiff argues that the distance between the work offered by defendant and her new residence is dispositive of her claim. She relies on Bingham v American Screw Products, 398 Mich 546, 563-364; 248 NW2d 537 (1976), a case under the Michigan Employment Security Act, for the proposition that her “residence” for purposes of § 301(9) was Ohio rather than Michigan. The Bower Court indicated that its decision was consistent with Bingham. Bower at 196, n 16. Plaintiff seems to argue that the unreasonable distance of the offer from her new residence precluded the offer from being “reasonable employment” under § 301(9) and that no further analysis need be made under § 301(5)(a). However, in Bingham itself, the Court did not end its analysis with whether the offer was reasonable in light of the distance but also considered the distance in the context of the ultimate issue whether the plaintiff had good cause to refuse the offer. Bingham at 571. Moreover, as noted above, Pulver and Bower clearly indicate the necessity of considering the circumstances of the move and the party’s efforts to obtain employment in the new location in analyzing the question of the party’s continued eligibility for benefits upon a move.

In its opinion here, the WCAC next stated: “As the previously cited case law demonstrates, an offer of favored work at the site where a plaintiff was injured is always a ‘reasonable distance from that employee’s residence’ under MCL 418.301(9) [MSA 17.237(301)(9)] regardless of whether plaintiff has moved.” The cited case law does not, in my judgment, *116demonstrate this proposition. However, contrary to the majority opinion’s contention, the WCAC did not construe both § 301(5)(a) and § 301(9) as providing that, as a matter of law, an offer at the site where the plaintiff was injured is always a reasonable distance from the employee’s residence, regardless of whether the plaintiff has moved. Rather, it only so construed § 301(9). In short, the wcac assumed that there was an offer of “reasonable employment” under § 301(9) without considering the distance of the offer from plaintiffs new residence. However, it then proceeded to analyze properly the present case under § 301(5) by considering the factors set forth in Pulver and Bower to determine if plaintiff had “good and reasonable cause” to refuse the offer. As the majority opinion notes, in a plurality opinion in Derr v Murphy Motors Freight Lines, 452 Mich 375, 384-386; 550 NW2d 759 (1996), the Michigan Supreme Court stated that the wcac does not necessarily err in considering the proper facts in the context of discussing the employee’s refusal rather than in the context of the employer’s offer.

In its opinion here, the WCAC held:

The sequence of events in this case are plaintiffs June 1989 iryuiy, her August 1989 engagement, her December 1989 injury, her April 1990 marriage and relocation and defendant’s July 1990 offer to return her to favored employment. Her refusal to return was based on the distance of 140 miles and on personal reasons. She was living with her husband in Lima, Ohio in a three-room apartment. She remained unemployed and was collecting welfare benefits. She testified she had not earned any income since she had left Michigan, but was collecting food stamps. While her husband had been employed at the time of the wedding, at *117the time of trial he was laid off and was a student. Plaintiff testified at hearing:
“I live in Ohio. I have no intention of, you know, coming back here unless my husband wants to come back and he’s made it very clear, he’s laid off and we live there.”
We observe in the record of this case no indication whether plaintiff even looked for work in the Lima, Ohio area.
. . . Once an employee moves away, the proper analysis must be made under § 301(5)(a). There must be good and reasonable cause for refusal in accord with the statutory purposes of the Worker’s Disability Compensation Act. Pulver [supra] Bower, supra.
Because the magistrate’s analysis under Pulver was incomplete, we exercise our limited fact finding powers recognized in Holden v Ford Motor Co, 439 Mich 257 (1992) and conclude plaintiff’s refusal was unreasonable under the range of factors recited in Pulver and when contrasted to the statutory purposes cited in Bower. Plaintiff was neither employed nor being rehabilitated. The offer came only three months after plaintiff voluntarily terminated her physical therapy and left Michigan; there is no evidence of plaintiff seeking or obtaining any employment in Ohio; the favored work offered involved observing a monitor and was within plaintiff’s medical restrictions and thus involved no risk preventing her from accomplishing her tasks; and finally as shown supra, she was seen in Michigan visiting family which at the least demonstrated an ability to return. Based on the record before us, we find plaintiff’s refusal of favored work without good and reasonable cause and deny benefits as of the date plaintiff was to begin work, July 31, 1990.

On the basis of that portion of the wcac’s opinion, I believe that, despite its misstatement of the law regarding § 301(9), the WCAC ultimately applied the correct legal standard in analyzing plaintiffs claim. It considered the factors outlined in Pulver and Bower *118to determine whether plaintiff refused an offer of “reasonable employment” for “good and reasonable cause.” Further, their factual findings are supported by more than competent evidence. Therefore, I would affirm the wcac’s opinion.