Pulver v. Dundee Cement Co.

Dissenting,

Judge Wahls

held:

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 ....

I would affirm the wcab’s conclusion that the plaintiff’s refusal was for good and reasonable cause. [Id. at 95-96. Citation omitted.]

III

A

The Legislature partially codified the judicially created favored-work doctrine in the reasonable employment provisions of the worker’s compensation act. MCL 418.301; MSA 17.237(301), and MCL *75418.401; MSA 17.237(401).7 However, these provisions are far more than a simple compilation of this Court’s prior favored-work decisions. While building on some of those decisions, some of these provisions have significantly changed others. Although the Legislature has made significant changes in the favored-work doctrine, this Court need not ignore all of its prior favored-work decisions in their entirety.8

For example, it is a well-established rule of statutory construction that the Legislature is presumed to be aware of judicial interpretations of existing law when passing legislation. Dean v Chrysler Corp, 434 Mich 655, 667, n 18; 455 NW2d 699 (1990). Therefore, when the Legislature codifies a judicially defined requirement without defining it itself, a logical conclusion is that the Legislature intended to adopt the judiciary’s interpretation of that requirement.

This conclusion is also supported by the associated rule of construction that provides that words and phrases that have acquired a unique meaning at common law are interpreted as having the same meaning when used in statutes dealing with the same subject. Thornton v Allstate Ins Co, 425 Mich 643, 648; 391 NW2d 320 (1986); MCL 8.3a; MSA 2.212(1). The statutory requirement of "good and reasonable cause” is analogous to the common-law requirement of "good faith or reasonableness.” Bower v Whitehall Leather Co, 412 Mich 172, 178; 312 NW2d 640 (1981). The statutory requirement is too similar to the common-law requirement to be dismissed as coincidence.

Applying these basic rules of construction to the statute at hand, we think it obvious that the *76Legislature did not, nor did it intend to, change the common law for this specific requirement. Accordingly, we turn to an examination of the common law.

B

This Court examined an offer of favored work and the reasonableness of its refusal in Kolenko v United States Rubber Products, Inc, 285 Mich 159; 280 NW 148 (1938). In that case, the plaintiff suffered a compensable injury to her arm. After paying compensation for a short period, the defendant stopped. The plaintiff sued, and at the subsequent hearing the defendant alleged that the plaintiff had refused an offer of substitute employment.

The offer was in the form of a request by the defendant that the plaintiff come to the plant where she would be given work. The plaintiff, accompanied by her attorneys, went to the plant to see what type of job the defendant intended to give her. The defendant, however, refused to provide any details of the job. The defendant also refused to allow the plaintiff’s attorneys into the plant to determine whether she was capable of performing the unspecified job.

The defendant maintained that these events demonstrated the plaintiff’s unreasonable refusal to cooperate with the defendant. Thus, the defendant argued, her benefits should be denied. This Court flatly rejected the defendant’s argument that the plaintiff had acted unreasonably.

The burden was on the defendant to show that it offered plaintiff work which she could perform. . . . Plaintiff was under no obligation to comply with the unreasonable and arbitrary de*77mand of defendant that she accept whatever work the company thought suitable for her. Plaintiff in her attitude and conduct with regard to the proposed job clearly appears to have been actuated by good faith. The law does not compel her to submit to the capricious dictates of an employer with regard to the kind of work she must accept in order to show cooperation. The only lack of cooperation that appears from the record in this case is on the part of defendant. [Id. at 162.]

The Court held that the actions of both the employer and the employee must be judged against standards of good faith and reasonableness. This type of analysis suggests that these questions are questions of fact and, as such, they are committed to the discretion of the factfinder. The Kolenko Court said as much when it held:

The findings of fact of the department were supported by evidence and according to the provisions of the statute are conclusive. These, together with the conduct of defendant regarding plaintiff’s reemployment, require that the award of the department of labor and industry be affirmed, with costs to plaintiff. [Id. at 163.]

The Court reached this conclusion by examining the conduct of the parties. An examination of the conduct of the parties is, by its very nature, a factual examination.

The Kolenko decision was essentially reaffirmed by this Court in Bower, a case decided only , weeks before the enactment of 1981 PA 200. In Bower, the plaintiff suffered a compensable work-related injury. Aggravations of the injury over a span of three-years resulted in the plaintiff quitting his job and moving to Florida. The plaintiff found suitable employment in Florida, but was notified by the defendant nine months after his arrival there, and *78on the eve of trial, that favored work was now available at the defendant’s plant in Michigan.

This Court held that the primary purpose of the favored-work doctrine is mitigation. The common-law doctrine of mitigation is founded on reasonableness, and application of a reasonableness standard requires the factfinder to examine the facts and circumstances of each case.9 The reasonableness of the employee’s actions as well as the employee’s good faith, or lack thereof, are factors that must be considered in determining whether the employee’s refusal of favored work will result in a forfeiture of benefits.

In reaching our decision, we find that the good faith or reasonableness of a worker’s actions must be taken into account in determining whether the forfeiture penalty should be imposed, and, further, that factors other than those relating to the physical capacity to perform favored work may be considered in assessing the reasonableness of the refusal. [Bower at 178-179.]

Refusal is justified if it is reasonable and furthers the policies underlying the act.

In applying this standard in Bower, this Court held:

Denial [of benefits] would encourage an injured *79worker to stagnate, awaiting the possibility that the original employer might offer a job sometime in the future. Certainly the employee would hesitate to seek or accept a job in another city, when he or she could be faced with the no-win choice of incurring the expense and emotional upheaval of returning or suffering a cutoff of benefits.

Denial would also discourage employers from hiring disabled workers. New employers would be willing to take the risk of employing, and perhaps retraining, injured persons, only to have them forced to quit when called upon by the former employer. [Id. at 192-193.]

This Court noted that allowing Bower to collect benefits could encourage injured workers to move away, in an attempt to avoid having to accept favored work while continuing to receive benefits. However, the high cost of relocation, both financially and emotionally, makes this an unlikely danger. Furthermore, this Court realized that the "rare” employee who moves in a bad-faith effort to avoid having to accept favored work would be denied benefits.

This Court emphatically rejected a blanket rule denying benefits whenever an employee moves away from the locale of the employer. "[A]n employer should [not] be able to exert such control over an individual without an assessment of the unique factors in each case.” Id. at 194.

Bower, like Kolenko, makes clear that the reasonableness of an employee’s actions are questions of fact. Although not made explicit in Bower, this proposition permeates the entire discussion in that case.10

*80[F]actors other than a claimant’s physical ability to perform the work may be taken into account in assessing the reasonableness of the refusal, our function as a reviewing court is extremely limited. The findings of fact of the wcab are conclusive in the absence of fraud and will not be disturbed if supported by competent evidence in the record. [Id. at 197. Emphasis added and citations omitted.]

C

Given the timing of Bower, decided November 23, 1981, some may question the effect it may have had on the reasonable employment provisions of the worker’s compensation act that took effect January 1, 1982.11 That question need not be answered here. Bower does not represent a change in the law; rather, it represents a consolidation of the favored-work doctrine. It solidified and made clear that a reasonableness analysis must be undertaken when examining an employee’s refusal of favored work. This conclusion was not, and is not, revolutionary. This type of analysis has been a part of the favored-work doctrine since Kolenko was decided over fifty years ago.

The Legislature incorporated this Court’s common-law requirement of reasonableness into the worker’s compensation act when it mandated that a refusal of reasonable employment must be for good and reasonable cause..This requirement, as *81developed in Kolenko and Bower, calls for case-by-case analysis.

In determining whether a refusal of reasonable employment is for good and reasonable cause, the dispositive questions are questions of fact, not law. Findings of fact in worker’s compensation proceedings, if supported by any competent evidence, are conclusive on the courts of this state in the absence of fraud or unless otherwise provided by law. Const 1963, art 6, § 28; Holden v Ford Motor Co, 439 Mich 257, 262; 484 NW2d 227 (1992); MCL 418.861a(14); MSA 17.237(861a)(14).

We do not attempt to define 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.” The 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.

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.

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 *82discretion 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.

IV

The date of injury in this case is after the effective date of MCL 418.301(5)(a); MSA 17.237(301)(5)(a); therefore, that statute controls.

Whether this Court believes that plaintiff’s refusal of the offer was for good and reasonable cause is immaterial. Our only concern is whether the wcab applied the correct legal test and whether there is any competent evidence to support its factual findings.

Even though the wcab failed to substantively develop its analysis, it did apply the correct legal test.

The question before us is whether a good-faith bona fide offer of favored work was made by defendant and whether plaintiff reasonably refused to perform the offer of favored work if such offer was reasonable. Bower v Whitehall Leather Co, 412 Mich 172 (1981), Powell v Casco Nelmor Corp, 406 Mich 332; 279 NW2d 769 (1979), and Kolenko v U S Rubber Products, Inc, 285 Mich 159 (1938). In the case at hand, we find that plaintiff was not unreasonable in her refusal to return to Michigan from Florida to perform a bona fide offer of favored work. [Unpublished opinion of the wcab at 5.]

Furthermore, a review of the record indicates that there is competent evidence to support the wcab’s factual findings. The evidence shows that plaintiff called defendant repeatedly over a one-year period inquiring into the availability of work *83suited to her physical limitations. There was evidence that she tried to return to work as demonstrated by her failed attempt to perform the sweeping job. The wcab found as a matter of fact that plaintiff was credible and that she moved to Florida in a good-faith effort to improve her health, be closer to her family, and to find suitable work. She signed a one-year lease and paid a security deposit, thus substantiating her claim that she intended to live there permanently. Significantly, the wcab found, again as a matter of fact, that plaintiff did not move to avoid accepting the job offer.

v

We hold that "good and reasonable cause” is the statutory equivalent of the same requirement found in the judicially created favored-work doctrine. Whether an employee’s refusal of an offer of reasonable employment is for good and reasonable cause is a question of fact. Our constitution gives considerable discretion to factfinders in worker’s compensation proceedings. Neither this Court nor the Court of Appeals should usurp that discretion. Because the correct legal test was applied, we hold that the Court of Appeals should not have disturbed the factual findings of the wcab.

We reverse the judgment of the Court of Appeals and reinstate the decision of the wcab. We remand this case to the wcac for proceedings consistent with this opinion.

Levin, Boyle, and Mallett, JJ., concurred with Cavanagh, C.J.

1981 PA 200 and 1981 PA 199, respectively.

Obviously, if there is a conflict between the common law and a statutory provision, the common law must yield.

This Court is presently examining the issue of mitigation in Marquis v Hartford Accident & Indemnity, 444 Mich 638; 513 NW2d 799 (1994). In that opinion, Justice Griffin, writing for the majority, observes that mitigation also plays a similar role in the no-fault automobile insurance act:

This policy [of mitigation] promotes cost savings for consumers as well as insurers by encouraging those injured in an auto accident to rehabilitate themselves .... Reasonableness is the touchstone of this obligation and, ordinarily, reasonableness of mitigation is a question for the factfinder. [Id. at 655.]

Such a finding was explicitly made by the wcab in Bower, an opinion this Court affirmed. Chairman Gillman, writing for a unanimous appeal board, stated:

*80[T]he dispositive questions are not ones of law but of fact: Was the offer reasonably made, or was it a ploy to avoid payment of benefits? Was plaintiff’s refusal to accept the offer reasonable under the circumstances? [1977 WCABO 3920, 3921.]

See Li v Feldt (After Second Remand), 439 Mich 457, 472; 487 NW2d 127 (1992) (opinion by Cavanagh, C.J.), stating that the date a law takes legal effect is the relevant date for interpretive purposes.

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