Pulver v. Dundee Cement Co.

Riley, J.

I respectfully dissent. While the majority’s opinion has much to recommend it, I am *84troubled over the fact that it does not take adequate account of what I believe to be an overriding policy of worker’s compensation law, to wit: an employee’s good-faith duty to accept reasonable offers of favored work.

As this Court has clearly recognized, the legislative amendments of the Worker’s Disability Compensation Act in the last decade were intended to narrow eligibility qualifications.

[W]e believe that our decision today is consistent with the intent of the Legislature manifested by its reform efforts during the past decade. A purpose of the comprehensive 1980 and 1981 revisions of the workers’ compensation system was to overturn or modify expansive interpretations placed upon the act by this Court. Although the dollar amount of benefits payable to workers eligible for compensation was increased, there can be no doubt that the Legislature also intended through its 1980 and 1981 reform efforts to narrow and restrict the eligibility qualifications. [Dean v Chrysler Corp, 434 Mich 655, 666-667; 455 NW2d 699 (1990).]

In addition, the economic and political climate of the time cannot be divorced from consideration of the legislative intent behind the reforms of 1980 and 1981 of the wdca. In my dissent in Farrington v Total Petroleum, Inc, 442 Mich 201, 226; 501 NW2d 76 (1993), I stated:

The amendments at issue were but a component of a broad reformation of the wdca, which was motivated by a crippled economic environment and a perceived need to reduce the burden and costs imposed upon free enterprise by the then-existing wdca.1

*85In light of this historical backdrop, I believe it appropriate to consider the favored-work doctrine and its place amidst the aforementioned reform efforts. In Bower v Whitehall Leather Co, 412 Mich 172; 312 NW2d 640 (1981), a majority of this Court was called upon to discern the parameters of the favored-work doctrine.1 The majority concluded:

The primary purpose of the 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. [Id. at 182. Emphasis added, citation omitted.]

Bower involved an injured employee who had *86moved to Florida while. he was still receiving worker’s disability benefits. Of specific importance to the majority were the facts that the plaintiff had moved nine months before the offer of favored work, that both he and his wife had found employment in Florida, and that the wages plaintiff earned in Florida were credited to the employer against its compensation liability. While recognizing that an employee’s refusal of a favored-work offer was subject to a standard of reasonableness, the majority qualified its holding in the following way:

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. [Id. at 196.]

Shortly thereafter, the Legislature codified the favored-work doctrine in 1981 PA 200. In light of the reform efforts prevalent at that time, I cannot but conclude that the act of codification, although validating certain aspects of the favored-work doctrine, was intended in part to prevent the types of expansive interpretation that were at the heart of the reform legislation.

Thus, we are faced with a conflict. It is clear from the deferential standard of review that reviewing courts should not cavalierly disregard the fact-finding expertise of the Worker’s Compensation Appeal Commission (and formerly, the Worker’s Compensation Appeal Board).2 On the other *87hand, the policies behind the wdca, which include the duty of an employee to accept reasonable offers of favored work, should not be discounted.

While I agree that the determination whether an employee’s refusal of favored work is reasonable is essentially a factual question, the determination whether the wcab or wcac applied the correct criteria in analyzing whether the refusal was reasonable is not a question of fact, and hence this Court is not constrained by the limited review applicable to factual findings.3 In the case at bar, the wcab failed to apply the correct criteria in determining that plaintiff’s refusal was reasonable. Consequently, this Court is not precluded from reviewing the wcab’s findings despite the fact that substantial, material, and competent evidence may exist to support the conclusion that plaintiff’s refusal was reasonable.

The findings and analysis of the wcab consisted of the following:

Nonetheless, we 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 *88her 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. [Emphasis added.]

It is evident from the above passage that the primary basis upon which the wcab rested its conclusion that plaintiff’s refusal was reasonable was its determination that plaintiff intended to remain in Florida permanently. Although plaintiff’s intent in moving to Florida is one factor to consider in determining whether her refusal was reasonable, it should not be dispositive.4

The guiding principle in determining whether a refusal of employment is reasonable should be whether such a refusal advances the policies of the worker’s compensation legislation. Failure to properly consider the policy favoring mitigation is therefore an error of law that is not insulated from appellate review.

Borrowing the policy concept directly from Bower, as implicitly adopted in 1981 PA 200, the Court of Appeals majority focused not merely on the basic facts, but also on the facts as they related to this policy of facilitating reemployment and not continued unemployment. Under the facts of this case, which differ significantly from those *89in Bower, the majority concluded that plaintiff’s actions failed to further the policies of the act and that her refusal of the bona fide work offer was therefore unreasonable. 196 Mich App 91, 94-95; 492 NW2d 778 (1992).

To reconcile the conflict between an employer’s interest in an employee’s reemployment and the employee’s interest in rehabilitation, which are equally important concerns as provided in Bower and implicit in the statute as it is now written, the reasonableness of an employee’s rejection of a bona fide offer of reemployment must, take into account more than the employee’s motivation for the move into a new locale. Rather, a factual balancing of interests is required under the totality of the circumstances. Examples of the appropriate questions include whether the employee has found alternative employment, how long the employee has been in the new locale, and the nature of any roots that an employee and family members establish in the new community. Without this inquiry, a factual assessment of reasonableness is incomplete because it would disregard the mitigation prong of the favored-work doctrine.

In the case before us, plaintiff did sell her home near the employer’s plant, but her letter notifying the employer of her new address did not make clear that the move was to be permanent.5 In addition, she initially accepted the offer of favored work over the telephone, but later rejected it after speaking with her attorney. Further, the record does not make clear that plaintiff had good prospects for employment in Florida. Accordingly, I am not convinced that plaintiff’s rejection of favored work was reasonable in light of the circumstances, which do not take into account the employer’s *90interests and efforts to ensure reemployment through favored work.

Although I am not certain that plaintiff’s rejection was unreasonable, the failure of the wcab to review plaintiff’s claim in light of the purposes of the act, as it relates to the important interest in reemployment rather than unemployment, prevents me from accepting its factual findings without further inquiry. Accordingly, I would hold that a ruling by the wcab or the wcac that does not assess the facts in light of the aforementioned policy is insufficient as a matter of law. While an assessment of the facts that respects the mandates of this policy may remain inviolate absent fraud, an assessment that fails to respect the mandates of Bower and the statute, i.e., the policy favoring employment over unemployment that is based on personal reasons unrelated to the favored-work offer, cannot alone support a finding of reasonableness. While the hardship of relocation may be weighed in the factual balance, it is by no means dispositive.

For all of the aforementioned reasons, I would affirm the decision of the Court of Appeals or remand for further consideration of the reasonableness of plaintiff’s rejection.

Brickley and Griffin, JJ., concurred with Riley, J.

Indeed, the legislation’s proponents explained that reducing the excessive costs of the then-current wdca was essential to the economic survival of Michigan:

"Since 1979, and prior to that, 1978 during the elections, *85everybody said that worker’s compensation is the highest priority in the State of Michigan. We cannot afford to lose industry and jobs in this state. We cannot afford to see people going to other states ....
"I think it is a Number One priority; one that we have neglected. One that we have pushed aside. One that we have tried to pacify by saying that we are going to have this study committee, or that study committee, but it is one that is very necessary that we get at if we want to retain Michigan as a state than [sic] can provide jobs and not as an industrial wasteland. [1980 Journal of the Senate 820 (Senator Welborn).]”

Senator Guastello echoed his colleague’s premonitions just before introduction of the reform bill:

"[A]ll of us here today, both on the floor of the Senate and in the galleries, are faced with a real moment of truth as far as Michigan is concerned and I think that moment of truth is simply — what are we going to do to insure a healthy economic climate, not only for ourselves in this state, but for our children. [1980 Journal of the Senate 822.]”

See also 1980 Journal of the Senate 1310 (Senator DeMasco).

When the Bower opinion was issued, the favored-work doctrine was a judicial, rather than a legislative creation. See id. at 182.

See Const 1963, art 6, §28; MCL 418.861; MSA 17.237(861); *87Holden v Ford Motor Co, 439 Mich 257; 484 NW2d 227 (1992); Farrington, supra at 218-219.

See Cox v Schreiber Corp, 188 Mich App 252, 256; 469 NW2d 30 (1991) ("This Court may reverse the wcab’s decision if it operated within the wrong legal framework or its decision is based on erroneous legal reasoning”); Carter v Lakey Foundry Corp, 118 Mich App 325, 331-332; 324 NW2d 622 (1982) ("Error may be committed by basing a finding of fact on a misconception of law or by failing to correctly apply the law to a finding of fact. . . . Where, however, the board misconstrues the law ..., an appellate court will be free to overturn the board’s decision”). See also 100 CJS, Workmen’s Compensation, § 764, pp 1255-1256.

The danger of allowing an employee’s intent to control the inquiry is clear. Any employee whose employer had failed to find favored work for such employee could decide to leave town, depriving his employer of the opportunity to mitigate. By merely informing his employer that his move was permanent, the employee could dictate the amount of time given to the employer to find suitable employment for the employee. Although an employee’s control over this issue would appear to be circumscribed by the wcac’s conclusion that plaintiff was unaware of defendant’s efforts to find her a favored position, this is an insufficient check upon employee manipulation to allow intent to be controlling.

In fact, the letter provided that plaintiff was "staying with relatives until further notice.”