*1 223 (ON REMAND) JONES-JENNINGSv HUTZELHOSPITAL 1996, April Docket No.187750. Submitted October at Detroit. Decided 18, 1997, appeal sought. at 9:30 A.M. Leave to Jones-Jennings injured Annie her the of elbow course Hospital, ment with Hutzel for which she received medical treat- disability compensation ment and worker’s benefits. When the plaintiff work, reinjured elbow, returned to she the was home sent work, again voluntarily paid disability from and was worker’s com- pensation reirquring elbow, benefits. Four months after the plaintiff moved to Ohio and married Ohio resident. Three Ohio, plaintiff months after her relocation to the defendant sent the plaintiff a written offer of one-handed work. When the failed respond work, offering to the letter the favored the defendant making payments disability compensation ceased of worker’s bene- plaintiff petitioned fits. The thereafter for work-loss benefits. A compensation magistrate, following hearing, worker’s a found perform would have been work able favored defendant, that had been offered but found that the offered employment meaning was not reasonable within the of Disability 301(9) Compensation §§ of the Worker’s Act, 418.301(5)(a),(9); 17.237(301)(5)(a),(9), MCL because it and, within was not of reasonable distance her residence in Ohio accordingly, disqualified held that was not disability compensation worker’s benefits reason of her refusal accept appealed, the offer of favored work. The defendant Compensation Appellate the Worker’s Commission reversed magistrate’s decision, holding provi- that the reasonable distance sion §of if satisfied the offered was within plaintiff’s a reasonable either distance from the residence at injury plaintiff’s time of the or from the residence the time of the holding offer and further that the offered within plaintiff’s reasonable distance of residence at time of injury and that the refusal the favored work was with- cause, disqualifying out thus her from bene- plaintiff sought appeal Appeals, fits. The leave to to the Court Supreme which was denied. Court remanded matter to the Appeals granted, Court of consideration on leave (1995). v Hutzel Appeals held-. The Court Appeals has limited review of decisions 1. The Court only compensation The Court is concerned cases.
worker’s applied Compensation Appellate Commission the Worker’s any competent legal evidence and whether there is correct test *2 findings. support its factual employment involving reasonable in cases 2. The correct test 301(5)(a) of reasonable a bona fide offer § is whether under employee by employer employment whether the the was made employment good cause. The without and reasonable refused such employment questions was made an offer of reasonable whether good without and reasonable was refused and whether such offer questions fact. are cause opinion Although appellate that it indicates the commission’s 3. legal finding that the generally test and its aware of the correct was good of favored work without refused the defendant’s offer by competent supported appears some cause to be and reasonable evidence, appellate committed an error of law commission employment that is law that an offer of when it held as a matter of at the time of of a claimant’s resident within a reasonable distance always injury resident distance from the claimant’s is a reasonable 301(9) purpose if claimant has moved. The § even for the by appellate error of law conclud- committed a further commission only question presented ing where a claimant has moved is refusing for an has reasonable cause whether the claimant statutory appellate erroneous con- commission’s ment offer. The proper legal apply framework and it to fail to struction caused incorrectly findings apply law to its of fact. also it to caused appellate opinion Accordingly, of the commission and order reversed, magistrate must be and the order of the must be reinstated.
Reversed. Markman, P.J., opinion dissenting, stated that the and order affirmed, although appellate should be because commission interpreting to mean that an offer of erred in commission employment employment where a claimant was at the site of the injured always resi- distance from the claimant’s is a reasonable subsection, properly purpose it of that nevertheless dence for the question separate under whether factual considered the employment “good for an offer of reasonable refused finding of fact Because the commission’s and reasonable cause.” question respect refusal was for whether the to the evidence, supported by competent good cause was and reasonable 223 opinion appellate and order of the should be commission affirmed. — — Compensation Employment 1. Worker’s Offers of Reasonable Refusal of Offers. applied compensation The correct test to be for claims worker’s employee employer’s work-loss where an benefits refused an offer of favored work is bona fide whether a offer of reasonable employment employer employee was made and whether the employment cause; good refused such without reasonable questions employment an reasonable made and whether such offer was refused without reasonable questions (MCL 418.301[5][a],[9]; cause are fact [a], [9]). 17.237[301][5] — — 2. Worker’s Compensation Employment Offers of Reasonable Reason- able Distance Residence. Compensation Appellate is an It error of law the Worker’s Com- mission to conclude as a matter of law that an offer of employer employee’s within a is distance of an purpose provision residence for the of the favored-work Disability Compensation Worker’s ifAct the offered within a reasonable distance of the residence at the though time the even had *3 away employment moved from the area in which was offered by employment (MCL 418.301[9]; the time the was made 17.237[301][9]). MSA (by Zamler, & Mellen Shiffman, P.C. Donald Shiff- plaintiff. and Counsel, for the man), Daryl Royal, (by Kluczynski, Girtz, Zamler & McCubbrey, P.C. for the defendant. A. Weglarz), Ronald
ON REMAND P.J., Before: and Smolensk G. and S. Markman, Both*, JJ. compensation J. This worker’s case is Smolensk, Supreme before us on remand from our Court for * judge, sitting Appeals assignment. Circuit on the Court of v Hutzel Mich granted. on leave consideration as Worker’s from an order of the appeals Plaintiff (1995). that, in relevant Commission Compensation Appellate open award of benefits magistrate’s part, modified the July 1990. We 31, effective by denying benefits WCAC and reinstate the decision reverse decision. magistrate’s case are the
At issue
Disability Compensa-
Worker’s
provisions
ment
seq.-,
17.237(101)
418.101 et
tion Act
MCL
(wdca),
partial
which
codification
represent
et seq.,
Pulver
doctrine.
v
judicially created favored-work
74;
(5) If is established weekly wage deter- loss benefits shall be entitlement pursuant this section and as follows: mined employee receives bona fide offer of reason- (a) If an previous employer, another able employment security employer, through Michigan or employee refuses that commission and the cause, shall be without and reasonable voluntarily or herself to have removed himself considered any wage longer work and is no entitled to from the force period during act of such benefits under this loss refusal.
[*] [*] [*] employment”, section, used in this (9) “Reasonable per- employee’s capacity to within means work that is poses proximate clear threat form that no safety, reason- employee’s health that within a *4 residence. distance [MCL able (9) (9); 17.237(301)(5)(a) and 418.301(5)(a) (emphasis supplied).]
The to facts relevant this case are as follows. In plaintiff began working 1970, for defendant as a plaintiff 1988, nurses’ assistant. In June her left elbow at work when a she struck it on metal cart. began Plaintiff was sent home from work. She receiv- ing began treatment from various doctors. Defendant voluntarily paying compensation worker’s to benefits plaintiff. plaintiff
In December 1989,defendant instructed to report day plaintiff, for work. her back, On first while working reinjured job, a two-handed her elbow when lay attempting she struck it on a trash can while a to examining again sheet on an table. Plaintiff was sent home from work. April plaintiff got 1990,
In moved Ohio and mar- Following wedding, ried to an Ohio resident. plaintiff personnel department informed defendant’s that she intended to live in Ohio. July plaintiff 1990, defendant sent written plaintiff work. time, one-handed At this
residing approximately in Ohio 142 miles from hospital. respond defendant’s Plaintiff did not paying letter. Defendant discontinued benefits plaintiff. petitioned wage-loss Plaintiff benefits. Following hearing, magistrate plain- found that injury tiff had suffered a work-related in June partially and, result, as a had become disabled. The magistrate found that had suffered a second injury aggravated work-related in December 1989 partial existing disability. magistrate con- partially cluded that continued to be disabled.
Concerning July employment defendant’s offer, the magistrate found as follows: *5 99 v Hutzel Opinion the Court of plaintiff agree do a one-handed
All the doctors that could plaintiff job. I a one-handed find. Defendant offered [sic] so July April plaintiff However, of moved 1990. in 1990 in of Lima, with living there her her to Ohio and domicile job approxi- July The offered new in of 1990. husband mately plaintiff’s new Under Sec- 142 miles from residence. employment” is “within 301(9) “reasonable tion employee’s I that residence.” a distance from reasonable July of defendant was find offered in that the a offer work due the inordinate dis- not of offered work. tance residence between that was entitled to The found magistrate open of benefits. wage-loss award to the appealed magistrate’s decision Defendant The WCAC affirmed WCAC, raising grounds. numerous except all respects in magistrate’s decision did not respect to defendant’s contention July its attempt performing at make good-faith employment. Concerning argument, WCAC stated as follows: portion
The at issue “reasonable of statute defines employment” as follows: 418.301(9) 17.237(301)(9)]. ‘Reasonable “MCL [MSA section,
employment,’ as used in this work that is means perform poses employee’s capacity within no proximate employee’s to that health and clear and threat safety, from that and that is within a reasonable distance employee’s residence.” injured employees justifiably construing have work when the
refused offers favored moved, and rea- courts have asked whether there is employee’s refusal favored work. A sonable cause for factor in that is the distance between location time either an residence at the of work and injury following highlight or the time of the offer. discussing this of the statute. cases section 223
Opinion Court Supreme opinion [Pulver, Most recent Court supra]. injured plaintiff In that one month after the Florida, moved to defendant offered her favored yet reemployed, being ment. She was not nor rehabilitated. However, keeping she testified touch with the employer year injury for more than a after her to see if selling there was favored work available. One month after possessions, leasing “all” condominium Florida “attempting there, to seek work” defendant’s offer was made. Supreme stating Court remanded the case the deter- *6 employment
mination whether the refusal of reasonable question is for and reasonable cause is a of fact. The examples Court listed of factors to consider as: “(1) timing offer, employee (2) of the if the has moved, moving, (3) diligence the reasons for of the employee trying in work, (4) return whether the employee actually returned to work with some other and, employer (5) effort, risk, whether the sacrifice or expense person accept such is that a reasonable would not Id., the offer.” 13. case, only magistrate Under the facts of this away examined the fact that has moved and not any Pulver, other consideration. Pursuant to this is insufficient. years
In Michigan what had been the seminal case issue, on Co, this Bower v Whitehall Leather 412 172 injured (1981), NW2d [312 640] moved to Flor- injury. ida with wife his after his Both found rejected there. Plaintiff defendant’s offer of favored work. purpose compensation
The Court stated the of the worker’s “encourage act is to to rehabilitate himself.. .. [the worker] employer, It is in employee, the interest of the and the public employee have the gainful return to possible.” DeTroyer Co, as soon as v Ernst Kern praised plaintiffs 694 NW (1937). The Court [277 199] stating industriousness, actions that such “initiative and deny encouraged. should be To benefits in the instant cir- only punish employee cumstances not would for find- ing holding work, severely substitute but also would 101 v Hutzel 1997] purposes mitigative the rehabilitative undercut [Bower, supra], 192. act.” Supreme Bower, Morrison v Merrick’s Court cited (1974), Market, Inc,
Super 300 Minn 535 NW2d [220 he employee favored work made while an refused where justi- retraining program. engaged in a His refusal comported remedial with the fied because his actions specific statutory pur- “the more nature of the act and with pose ‘encouraging to increase their workers [Bower, supra] employability through retraining’.” 195-196. Further, Court stated: just any recognized be that we do not hold
“It should may personal favored excuse a refusal of consideration may returning avoid to work ten- work. Nor merely upon removing good-faith offer himself dered locality employer. Only under circum- from the similar to those in the instant where stances statute, policies can claimant’s actions further ours.) rejection justified.” Id., (Emphasis be 196. such a interpret long this case to mean that so as an in the new location further act’s activities purposes reemployment, or of rehabilitation justified refusing the offer of favored work. sequence are June of events this case injury, August engagement, her December her reinjury, April marriage and relocation and July 1990 offer to return her to favored defendant’s *7 the distance of ment. Her refusal to return was based on personal living with her on reasons. She was 140 miles and Lima, apartment. in a three-room She husband in Ohio unemployed collecting welfare benefits. remained and was any she had had not earned income since She testified she collecting stamps. Michigan food While her left but was wedding, employed at the time of their husband had been Plaintiff he was laid off and was student. the time of trial hearing: testified at I have no intentions
“I live in Ohio. I’m a resident of Ohio. my of, you wants know, coming here unless husband back clear, very off and made it he’s laid to come back and he’s we live there.” in observe the record of this case no indication whether
plaintiff Lima, in even looked for work Ohio area. magistrate did not address these facts in his conclu- plaintiff justified refusing sion that in defendant’s offer above, only of favored work. As stated his consideration appears Hospital to be the distance between Hutzel plaintiffs apartment. husband’s previously demonstrates,
As the cited law case an offer plaintiff of favored work at the site where a always a “reasonable distance from that resi- 418.301(9) 17.237(301)(9)] dence” under regard- MCL [MSA plaintiff less of whether has moved. Once an away, proper analysis moves must be made under [MCL 418.301(5)(a); 17.237(301)(5)(a)]. good There must be and reasonable cause for refusal accord with the statu- tory purposes Disability Compensation of the Workers’ Act. Pulver, [supra]; Bower, supra. magistrate’s
Because the under Pulver was incomplete, finding power we exercise our limited fact rec- ognized Co, in Holden v Ford Motor [484 (1992) plaintiff’s NW2d and conclude refusal was range unreasonable under the broad of factors recited in statutory purposes Pulver and when contrasted to the cited employed being Bower. Plaintiff was neither nor rehabili- only tated. The offer came three months after vol- untarily physical therapy terminated her Michigan; and left plaintiff seeking any there is no evidence obtaining or Ohio; the favored work offered involved observing plaintiff’s a monitor and was within medical preventing restrictions and thus involved no risk her from accomplishing tasks; finally supra, as shown she Michigan family visiting was seen in which at the least ability demonstrated an to return. Based on the record us, before we find refusal of the favored work deny without and reasonable cause and benefits as of July begin work, the date was to 1990. Plaintiff appeals this decision.
Our review compensation of worker’s cases is lim- only ited. We are concerned with whether wcac *8 v Hutzel Opinion of the Court applied legal any the correct test and whether there is competent support findings. evidence to its factual supra Darling City Trucking Pulver, 82; v Inter (On Remand), App 221 Mich 521, 523-524;561 NW2d (1997). involving employment In cases legal under the correct test is WDCA, employment whether a bona fide offer of reasonable employer was made and whether the employment good refused such without and reasona- supra questions ble Pulver, cause. at 82. The an offer of reasonable was made and good whether such offer was refused without questions reasonable cause are themselves of fact. supra Pulver, at 77. develop analysis,
Even if the WCAC fails to its there applies legal is no if error the WCAC the correct test. specific particular Id. at 82. Moreover, the facts of a may pertinent case be to both the determination of employer’s the reasonableness of the offer and the determination employee’s . reasonableness Murphy Freight
refusal. Derr v
Motors
(1996)
Lines,
452 Mich
384-386;
generally legal aware that the correct test consists of questions employer whether the made an offer of reasonable unreasonably and whether the finding
refused such offer. Moreover, its refused defendant’s offer without supported be appears reasonable cause However, plaintiff takes evidence. competent some *9 portions of the wcac’s following issue with opinion: justifiably injured employees have construing whether employee has work when the
refused offers of favored good and rea- moved, whether there is courts have asked A employee’s favored work. refusal of sonable cause for analysis between the location is the distance factor employee’s residence at the time of work and either an injury of the offer. or at the time
[*] [*] [*] demonstrates, previously an offer cited case law As the injured a is work at the site where of favored employee’s always resi- “reasonable distance from that a regard- 418.301(9) 17.237(301)(9)] MCL dence” under [MSA employee Once an less of whether has moved. away, proper must be made under Sec- moves 301(5)(a). be and reasonable cause tion There must statutory purposes of the refusal in accord with the Pulver, [supra] Disability Compensation Act. Workers’ Bower, supra. erroneously con-
Plaintiff contends that wcac offer providing 301(9) strued § always is at the site where the employee’s distance from the residence Rely- whether the regardless of .moved. Co, 398 v American Screw Products ing Bingham on NW2d 537 a case that con- 546, 552; (1976), provisions Michigan work” strued the “suitable seq.; MCL 421.1 et Security Act Employment (mesa), seq., plaintiff contends that § MSA 17.501 et WDCA, properly together, construed and § not an offer of “rea- that an offer of work is provide v (On Hutzel Rem) employment” sonable if the offered work is not employee’s within a reasonable distance from the res- idence at the time Plaintiff also contends offer. opinion erroneously that the WCAC indicates that the reasonableness of the distance from an residence can be measured as injury of either the time of the or the time of the offer. subject
A decision of the WCAC if
reversal
operated
wrong legal
within the
framework or
WCAC
legal reasoning.
its decision was based on erroneous
Darling, supra.
may
Moreover, error
be committed
by basing finding
misconception
of fact on a
of law
correctly
failing
apply
or
the law. Price v West
(1996).
land,
Opinion the Court ,”1 supra Bingham, time at 563. At the him . . . See Bingham mesa, MCL decided, 17.531(6), 421.29(6); work as defined suitable any determining not work is whether or “In follows: shall con- individual, the commission for an suitable from his available work . . . distance of the sider supra. Bingham, residence.”2 See Bingham, plaintiff left his employer Michigan defendant with the ment adequate housing for find he was unable to because Kentucky. The children, and returned to his wife and plaintiff subsequently a notice to the sent defendant job. regular report Id. at 553. The work at his job Michigan plaintiff defendant’s refused the Kentucky home. Id. from his because of its distance Security Employment Michigan Commission disqualified plaintiff was not that the found (mesc) receiving because the benefits under the mesa refusing the defendant’s had cause for Appeal An mesc referee and the MESC offer. Id. finding. at 554. The circuit affirmed this Id. Board appeal part decision, board court reversed the ground on the as relevant to Michigan while defendant’s Kentucky living Id. was “suitable.” determination, This Court affirmed the circuit court’s disqual Currently, provides 29(l)(e) that an individual is the mesa receiving Failed the mesa ”if he or she ified from benefits under ...(e) *11 accept ...” to the individual. suitable work offered without cause 421.29(l)(e); 17.531(l)(e). MSA MCL provides determining Currently, as follows: “In of the MESA individual, shall consider for an the commission whether work is suitable individual’s residence.” the available work from the . . . the distance of 17.531(6). 421.29(6); MCL v Hutzel App 21; (1974), holding, 57 Mich NW2d 199 Supreme Court, characterized that required Bingham plaintiff] matter act as a of law the [the locality both be available for work at the in which he (Kentucky) at the resided time the work made locality during period and at the at which he resided he period (Michigan). earned his base credit weeks Mich [398 554-555.] Supreme
Our
Court reversed
this
the decision of
and
Court
reinstated
administrative determination
of the mesc. Id. at 571. The
stated
Court
that the issue
reemployment
defendant’s offer of
an
statutory
“suitable work” turned on the
meaning of the
Id.
word “residence.”
at 563. The
Court stated that
is
because
word “residence”
not
given
defined in the
it
plain
must be
its
mesa,
ordinary
noted
meaning
ordinary
mean-
been
ing of “residence” has
defined as follows:
place
resides;
abode;
“Residence means the
were one
habitation;
dwelling
especially,
permanent
or
settled
or
up
home or domicile. Residence is made
of fact and inten-
There
tion.
must be the fact of
and the
abode
intention
remaining.”
564, quoting Wright
at
v Genesee Circuit
[Id.
245;
Judge,
244,
(1898).]
Applying to the this definition facts of it is clear Bingham’s “residence,” permanent his “settled or home,” Kentucky. remain,” Pineville, where he “intends to Therefore, conjunction 29(l)(e) under read in *12 Opinion of Court the disqualified refusing 29(6), American Bingham was not § reemployment because his refusal offer Screw Works’ cause”; an offer of “good the offer was not “suitable locality reemployment the work” because the of clearly Michigan) was an dis- (Farmington, unreasonable Pineville, Kentucky that residence. hold tance his supra disqualified. [Bingham, at 564- the claimant was not 565.] clearly erroneous this Court’s
The Court found locality holding the in meant both that “residence” the at the time the which claimant resided of and in which the claimant resided offer during the localities period period credit
the he earned the base case, Id. As relevant to this the Court weeks. at 565. interpret meaning a that residence as that stated may places person in more would reside two or essentially contrary 29(6) § a “to reach result amend plain language the that fixed to Legislature.” mandated 29(6) § noted Id. Court also that “locality of on the residence.” focuses Bingham, Like we of “rea- construe definition employment” 301(9) § in as focus- sonable contained locality ing employee’s at the on of residence employment However, made. time offer of is 301(9). § Thus, in we word “residence” undefined ordinary Bing- meaning, that as hold its defined applies. plain Accordingly, language of ham, conjunction, 301(5)(a) 301(9), § § indi- read of that is not an offer cates an offer employment” unless the “is “reasonable employee’s that within distance from actually place residence,” the one i.e., permanently reside, at intends to the time offer is made. (Gn Rem) v Hutzel Opinion the Court interpreted wcac providing if an as wdca
employment originates plain- from the site where the is, tiff was then such offer matter law, always a reasonable distance from the res- regardless idence of whether proper analysis moved. The wcac then held *13 employee simply cases where the has moved is employee whether the reasonable cause refusing interpreta- offer. However, the the WCAC’s contrary plain language tion is to the of subsections effectively 5(a) § and 9 of 301 and amends sub- these Legisla- sections to reach result not intended the As above, ture. indicated when distance is a factor determining job whether a offer constitutes “reasona- employment,” plain language ble the of subsections 5(a) locality employee’s and 9 focuses on the the residence at time offer is made. question The issue of distance is a Pulver, fact. supra provide at 77. The statute that, does not in cer- tain instances, “reasonable distance” is established as a matter of law. authority interpretation,
As
for its
WCAC relied
engrafting
judicial
on Pulver and Bower as
such a
gloss
statutory language
§
to the
301(9).
disagree
with the wcac’s assessment of
First,
these cases.
the Bower Court was not faced
statutory language
with the
contained in
it
because was decided in the
context
common-
law favored-work doctrine. Under the
law,
common
typically
respect
favored work was
defined
employee’s physical ability
to do the favored
e.g.,
See,
Co,
work.
Michales v Morton Salt
(1995) (“Favored
479, 487;
sider issue whether the employment because that definition of reasonable properly preserved plaintiff. issue was not specifically noted However, the Pulver Court statutory lower tribunals should have focused on *14 employment, requirements but that it of reasonable opin- purposes ignore for the of its would the error n 6. ion. Id. at
Accordingly, Bower Pulver stands for neither nor (a) 301(5) 301(9) § §of advo- the construction employment (that an at the cated the offer WCAC injury always employee’s is site of reasonable the regardless employee’s the residence distance from proper employee whether has moved and employee has moved is in cases where unreasonably simply employee refused whether offer) these cases did not consider because employment. statutory requirements of reasonable v Hutzel acknowledge that under current law an employee’s move to a new location is relevant to question determining both the whether an employment, ment offer constituted reasonable 301(9) question § as well as the whether WDCA, employee unreasonably refused an offer of rea- employment, supra Pulver, sonable at 81. Moreover, attempt accepting a bad-faith to avoid a bona fide employment by moving never con- stitutes and reasonable cause. Id. at n 79, 81, 12; supra Bower, 196. simply
However, this not wcac did con- sider the fact of move as a relevant fact in plaintiff unreasonably its determination whether employment refused defendant’s Rather, offer. construing an committed error of law wcac 301(9) providing § § as that an offer of employee at the site where the always is a reasonable distance from that regardless residence of employee explained has moved. As above, this hold- ing contrary plain statutory language is to the and no authority for such construction can be found in either legal permitted Pulver or Bower. The wcac’s error it find, law, as matter of that defendant’s offer employment.” However, “reasonable whether an employment” question offer is for “reasonable is a legal fact. The wcac then committed further error in construing 301(5)(a) providing proper analysis only moves, when an whether the has reasonable cause for refus- ing Again, holding offer. is con- trary plain statutory language authority to the and no *15 App 223 Mich P.J.
Dissent Markman, Pulver or be found in either for construction can such Bower. erroneous we conclude that the wcac’s
Accordingly, improp- to apply it both statutory construction caused apply to incor- erly framework and proper legal fact. therefore findings its rectly the law to and rein- and order of the wcac opinion reverse holding, of this magistrate’ light decision. state plaintiff’s remaining we not issues. need address pursuant 7.219, to taxable costs MCR Reversed. No question policy being involved. public Both, J., G. S. concurred. (dissenting). respectfully I dissent. P.J.,
Markman,
legal
standard
long
applies
As
as the wcac
correct
support
to
any competent
and there is
evidence
its
are
find
findings, the courts
not
disturb
wcac’s
Co,
v Dundee Cement
ings. Pulver
68, 82-83;
Wayne
York v
Co
(1994);
refusal reasonable not law. Id. 83. fact, is one of It sonable cause held: attempt “good
We do not divine what may in one be cause” is. What is reasonable situation not no be another. Therefore exhaustive definition could ever decep- encompass the varied formed nuances such tively simple principle “good legal cause.” and reasonable v Hutzel *16 P.J. Dissent Markman, does, however, provide examples at bar The case of some may gauging factors that be of the considered in the reason- of an ableness actions. may offer, (1) timing (2)
These factors include: the employee moved, moving, (3) if the has for the reasons employee diligence trying work, (4) return to to employee actually whether to returned work employer and, (5) effort, risk, other some sacri- expense person fice or is such that a not reasonable would accept the offer. provide merely examples. every these factors Not
personal good will consideration constitute and reasonable entitling employee cause to continued a benefits after employment. of an refusal offer of reasonable It is left to carefully the sound discretion of the to factfinder examine and facts circumstances of each to case determine what any given and cause in reasonable situation. at [Id. 81-82.]
The Pulver Court reinstated the decision of the WCAB (the predecessor of wcac), concluding that com- petent supported evidence wcab’s finding that plaintiff had “good and cause” refusing the defendant’s offer in the context of her move to Id. specifically Florida. at It 82-83. noted plaintiff repeatedly called the defendant over a one- year period availability into the inquiring of work that when she was unable to find suitable she work to moved Florida in good-faith a effort to improve health, be closer her family, to and find suitable work. one-year Id. She lease signed paid security deposit, evidencing her intent to live there permanently. Id. at 83. On the of facts, basis these wcab found that did not move to avoid Id. Michigan. Bower v Leather 412 Co, 172; Whitehall Mich NW2d 640 (1981), also involved an by Markman, P.J. Dissent plaintiff and wife his out of state. who moved in Florida. The Court noted obtained Disability Compensation purposes the Worker’s incapacitated compensate while Act: to encourage himself and him to rehabilitate rejected employment. gainful 191. It Id. at rétum employees accept requiring an absolute rule physically capable per- they are favored work that nonphysical forming without consideration various It refused at 194. found factors. Id. “good and offer work for reasona- the defendant’s ble cause.” It held 196: *17 just any recognized that It be that we do not hold should personal may excuse a refusal of favored consideration may returning to work. an avoid work ten- Nor by merely removing upon good-faith himself dered a Only locality employer. of the from the under circumstances case, similar in instant where the claimant’s to those the policies rejec- statute, actions the of the can such a further justified. tion be magis-
In the instant the WCAC found that the finding trate in that refused erred “good reasonable work for and reasonable cause” 301(5)(a). magis- § that under The WCAC found the analysis inadequate trate’s was because he considered only place of busi- distance between defendant’s ness and new residence in Ohio.Pulver and party far Bower indicate that when moves place inquiry business, of additional into defendant’s move and efforts obtain the circumstances necessary in the location to the new are analysis question party’s eligi- of the continued bility Bower at 196. 81-82; for benefits. Pulver v Hutzel
Dissent Markman, P.J. Accordingly, correctly I believe con- WCAC analysis magistrate’s inadequate. cluded that the magistrate, plaintiff argues
As
that the dis-
tance between the work offered
defendant and her
dispositive
new residence
of her claim. She relies
Bingham
on
Products,
v American Screw
(1976),
546, 563-364;
In its here, next stated: “As the WCAC previously cited case law an demonstrates, offer plaintiff injured favored work at site where a was always employee’s is a ‘reasonable distance from that 418.301(9) residence’ under MCL [MSA regardless plaintiff 17.237(301)(9)] of whether has my judgment, moved.” The cited case law does not, in 116 94 223 Mich P.J. Markman, Dissent contrary proposition. However, demonstrate this opinion’s majority contention, not the WCAC did providing 301(9) § § as both construe law, an at the site where that, a matter of offer always plaintiff distance was regardless employee’s of whether residence, from the only Rather, it so construed moved. 301(9). § assumed that there was short, In wcac employment” 301(9) under of “reasonable considering the of the offer from without distance proceeded plaintiffs However, new it then residence. present analyze properly case under by considering forth in the factors set Pulver “good if had and reason- Bower to determine majority opin- As able to refuse the offer. cause” Murphy plurality opinion in a v notes, ion Derr Freight Lines, 375, 384-386; 550 Motors Supreme (1996), Michigan NW2d Court stated 759 necessarily considering not err in that the wcac does proper discussing facts in the context of rather than the context of the refusal employer’s offer. opinion held: here, its WCAC sequence plaintiffs events in this case are June iryuiy, August engagement, her 1989 her December April injury, marriage and relocation and July offer to her to favored
defendant’s return refusal to return based on the distance of ment. Her living personal with her 140 miles and on reasons. She was Lima, apartment. Ohio in a three-room She husband unemployed collecting remained welfare benefits. any she not income since she had She testified had earned stamps. Michigan, collecting left but was food While her employed wedding, had the time of the at husband been *19 Rem) v (On Hutzel by Maekman, P.J. Dissent Plaintiff laid off and was a student. trial he was the time of hearing: testified at you know, coming of, I have no intention
“I live in Ohio. and he’s my to come back husband wants here unless back very clear, we live there.” he’s laid off and it made indication whether the record of this case no We observe in Lima, area. plaintiff work in the Ohio even looked for analysis proper away, moves . . . Once good 301(5)(a). be There must must be made under statutory with the cause for refusal accord Disability Compensation Act. purposes of the Worker’s Bower, supra. [supra] Pulver magistrate’s under Pulver
Because the
powers
finding
rec-
incomplete,
our limited fact
we exercise
Co,
(1992)
ognized
Ford
On of the law despite its misstatement that, believe ultimately applied the WCAC 301(9), regarding § It plaintiffs claim. analyzing standard in legal correct and Bower outlined in Pulver the factors considered P.J. Dissent Markman, to determine whether refused an offer employment” “good “reasonable and reasonable findings supported Further, cause.” their factual are competent more than evidence. Therefore, I would opinion. affirm the wcac’s