Pulver v. Dundee Cement Co.

Cavanagh, C.J.

I

In this worker’s compensation matter, we must construe MCL 418.301(5)(a); MSA 17.237(301)(5)(a),1 and determine what constitutes "good and reasonable cause” justifying an employee’s refusal of a bona fide offer of reasonable employment.2

We hold that "good and reasonable cause” is the *71statutory equivalent of the similar requirement found in the judicially created favored-work doctrine. Since the Legislature incorporated this common-law requirement into the worker’s compensation act without specifically defining it, we assume that the Legislature did not intend to change the common law.

Whether an employee’s refusal of reasonable employment is for good and reasonable cause is a question of fact. Questions of fact are committed to the discretion of the wcac.3 In the absence of fraud, the wcac’s findings of fact are binding on the courts of this state if there is any competent evidence supporting them.

II

It is undisputed that plaintiff suffered a compensable injury to her wrist in August 1984. It is also undisputed that she suffers an ongoing total disability.

Plaintiff’s injury initially caused her to miss five days of work. She eventually returned to her job and worked until March 1985 with various medical restrictions. Her last day was March 5, 1985, at which time defendant began paying benefits.

Corrective surgery was performed on her wrist that March, but she never regained the complete use of her hand. After the surgery she saw several doctors and therapists, but could not return to work because defendant failed to offer work suitable to her medical restrictions. Plaintiff regularly called defendant regarding the availability of work. Defendant regularly informed her that none was available.

Plaintiff’s treating physician concluded that she *72was permanently disabled in October 1985. Unhappy with this diagnosis, defendant sent her to one of its doctors. Defendant’s doctor examined her and placed her on disability for six additional weeks.

Approximately six weeks later, plaintiff returned to work and received "favored work”— sweeping floors. She quickly discovered, however, that she could not perform this job without aggravating her wrist. Defendant and plaintiff’s union came to an agreement, and plaintiff was sent home that day with the understanding that defendant would continue to pay benefits.

On May 27, 1986, defendant sent plaintiff to see another doctor. That doctor concluded that plaintiff could not return to her former job and that it was very likely that she was permanently disabled.

Shortly after this diagnosis, and after having tried to secure work within her restrictions for well over a year, plaintiff decided to move to Florida. This allowed her to be closer to her family, and she believed the warm weather was better for her wrist. On June 27, 1986, she notified defendant in writing that she was moving and that any further correspondence could be directed to her new address in Florida or to her attorney.4 Plaintiff sold all of her belongings and left.

In a letter mailed July 15, 1986, and received July 28, 1986,5 defendant notified plaintiff that a job within her restrictions was now available. After first stalling for time to consult her attorney, she eventually rejected this offer because she now considered herself a permanent resident of Flor*73ida. Defendant stopped paying benefits and plaintiff began this action.

At the hearing, the magistrate held that plaintiff’s refusal of defendant’s bona fide offer of "favored work”6 was reasonable. On appeal, the wcab affirmed.

[W]e find from the facts that plaintiff had relocated to Florida in June of 1986 and intended to stay in Florida on a permanent basis. Plaintiff was attempting to seek work in Florida, had signed a lease with the condominium association, and was reliant upon family members as she had sold all of her possessions prior to leaving Toledo, Ohio. We find that plaintiff was credible in her testimony and accept that she planned to reside in Florida on a permanent basis. The record discloses that there was nothing to her knowledge that would have her return to Michigan since at the time of her move she did not know that defendant was seeking favored work for her. [Unpublished decision of the wcab, mailed December 20, 1990 (Decision No. 1617), slip op at 6.]

The wcab concluded, as did the magistrate, that defendant had made a bona fide offer of "favored work,” but that plaintiff’s refusal was reasonable.

Defendant appealed, again arguing that plaintiff’s refusal was unreasonable. Plaintiff failed to cross appeal on the issue whether the job offer was a bona fide offer of reasonable employment. A divided Court of Appeals reversed the WCAB.

The only disputed issue properly before us in this appeal is whether plaintiff unreasonably re*74fused defendant’s bona fide offer of favored work. We conclude that the appeal board’s decision that plaintiff is entitled to continuing benefits because her refusal of favored work was reasonable is based on an error of law and should therefore be reversed.
[I]t is clear that, inasmuch as plaintiff did not have employment in Florida, her choices, when favored work was offered by defendant, were to accept such work or have her disability benefits terminated. Any other resolution would be contrary to the purpose of the act, as interpreted by our Supreme Court and as enacted, in acquiescence to that interpretation, by the Legislature. [196 Mich App 91, 93-94; 492 NW2d 778 (1992). Citation omitted.]

If an employee receives a bona fide offer of reasonable employment from the previous employer, another employer, or through the Michigan employment security commission and the employee refuses that employment without good and reasonable cause, 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.

Plaintiff disputes the conclusion that the job offered met the statutory definition of "reasonable employment.” We find that this issue is not properly preserved because plaintiff failed to cross appeal on this issue. See Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993). We assume, without deciding, that the offer was indeed a bona fide offer of reasonable employment.

And formerly, as in this case, the wcab.

Both the wcab and Court of Appeals noted an unfortunate communication problem between the parties that led to defendant’s failure to realize that plaintiff had permanently relocated to Florida.

Defendant failed to place the proper postage on the letter.

It is clear that this case should have focused on the statutory requirements of reasonable employment because this case is governed by MCL 418.301(5); MSA 17.237(301)(5). For the purposes of this opinion, however, we will ignore this error.