Hamlin v. Michigan Seat Co.
314 N.W.2d 804
Mich. Ct. App.
1981
Check Treatment
Per Curiam.

The plaintiff, Opal C. Hamlin, was injured from exposure to a. toxic chemical used in making glue. This chemical, known as Toluene Diisocyanate (TDI), was used in the manufacturing process of Michigan Seat Company’s plant where plaintiff was employed. The result was that plaintiff suffered a sensitized condition which caused *86 severe reaction from even small exposure. The company offered plaintiff work with Jackson Canvas Company, a wholly owned subsidiary of the defendant, at benefits equal to those which she had been receiving at defendant’s plant. TDI was not used at the Jackson Canvas Company plant. The plaintiff refused the proffered employment solely because Jackson Canvas Company was not a union plant. It was shown that plaintiff was capable of performing the proffered work. Since her refusal to accept the proffered work was unrelated to her capacity to perform, she was denied benefits from the date of her refusal. Kolenko v United States Rubber Products, Inc, 285 Mich 159, 162; 280 NW 148 (1938), Frammolino v Richmond Products Co, 79 Mich App 18; 260 NW2d 908 (1977). She appealed to the Workers’ Compensation Appeal Board (WCAB), which denied her benefits because she refused work which she was capable of performing. She has appealed to this Court.

In absence of fraud, this Court’s review of the WCAB decision is limited to the issue of whether the board applied the correct legal standard. Mansfield v Enterprise Brass Works Corp, 97 Mich App 736, 740; 295 NW2d 851 (1980).

At issue is the "favored work” doctrine. This is a doctrine allowing the defendant-employer to mitigate weekly benefits by offering a disabled employee work which he is capable of performing in a disabled state. The result is that the disability award is reduced by the present and future earning capacity of the employee so employed in the "favored work”.

The set-off provision reads as follows:

"The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly *87 earnings at the time of such injury.” MCL 418.371(1); MSA 17.237(371)(1). (Emphasis added.)

The "favored work” doctrine developed to fill the obvious statutory hole left by this section. See Sims v R D Brooks, Inc, 389 Mich 91, 94; 204 NW2d 139 (1973).

In order to invoke the doctrine, the defendant-employer has the burden of proving that a specific and definite offer of employment was made and that the employee was capable of performing the work offered. Ayoub v Ford Motor Co, 101 Mich App 740, 745; 300 NW2d 508 (1980), Kolenko, supra, Sims, supra, 94. Once having met these criteria, a refusal by an employee to accept favored work for other than health reasons or. a refusal to make a good-faith effort to perform the favored work will terminate benefits payable to the employee. Christiansen v Eaton, Yale & Towne, Inc, 89 Mich App 440, 444; 280 NW2d 463 (1978), Brown v Premier Manufacturing Co, 77 Mich App 573, 577; 259 NW2d 143 (1977).

The Michigan Supreme Court has ruled that subsequent events, independent of the original injury, even though not the fault of the employer, will not justify the denial, reduction, or suspension of disability benefits because they cannot be attributed to the employee. Powell v Casco Nelmor Corp, 406 Mich 332, 353; 279 NW2d 769 (1979), Todd v Hudson Motor Car Co, 328 Mich 283, 286-287; 43 NW2d 854 (1950), Lynch v Briggs Manufacturing Co, 329 Mich 168, 172; 45 NW2d 20 (1950).

Where independent, supervening events, unrelated to the employee’s capacity to perform, are involved, a present earning capacity of the employee must be established. MCL 418.371(1); MSA 17.237(371)(1). However, if the intervening event is *88 one related to the employee’s capacity to perform, the employee is entitled to restitution of his benefits. Powell, supra, 354.

The general rule is that an injured employée who refuses an offer of employment for "favored work” which the employee is capable of performing is not entitled to workers’ compensation benefits. Bower v Whitehall Leather Co, 93 Mich App 257; 286 NW2d 877 (1979). A unilateral decision to refrain from employment for reasons other than capability of performance may terminate benefits under the Worker’s Disability Compensation Act. Frammolino, supra, 27.

Had plaintiff Hamlin accepted the offered employment with Jackson Canvas Company, she then could have determined the difference, if any, between her present earning capacity and her preinjury earning capacity. This course of action would not have barred a reinstitution of benefits had she been fired or laid off unreasonably. Pigue v General Motors Corp, 317 Mich 311; 26 NW2d 900 (1947).

Nor does this result exceed a state’s authority to regulate an employee’s rights under § 7 of the National Labor Relations Act, 29 USC 157. Although such authority to regulate is very limited under the act, the fair and efficient administration of Michigan’s workers’ compensation system is of such local concern as to take such action outside of the act, absent a strong and compelling congressional mandate to preempt. See San Diego Building Trades Council v Garmon, 359 US 236, 244; 79 S Ct 773; 3 L Ed 2d 775 (1959), Silkwood v Kerr-McGee Corp, 637 F2d 743, 746 (CA 10, 1980), cert den — US —; 102 S Ct 132; 70 L Ed 2d 9 (1981). No such mandate exists.

For the reasons stated in this opinion, we find *89 that the Workers’ Compensation Appeal Board applied the correct legal standard to the case at bar and that sufficient facts exist to support the result. Const 1963, art 6, § 28; MCL 418.861; MSA 17.237(861).

Affirmed. Costs to appellees.