McKissack v. Comprehensive Health Services

523 N.W.2d 444, 447 Mich. 57

• Court: Michigan Supreme Court
• Decided: August 30, 1994
• Docket: 96458, (Calendar No. 3)
• Status: Published

Opinions

Levin, J.

This is a worker’s compensation case. The hearing referee found that plaintiff Clara McKissack sustained a work-related disability to her left elbow, but concluded that it was not a continuing disability because she was able to return to her job as a medical technologist with defendant Comprehensive Health Services of Detroit. The Worker’s Compensation Appeal Board reversed, holding that McKissack had a continuing disability because she was not able to perform her duties adequately, and that this had led her employer to become dissatisfied and to demand her resignation.

The Court of Appeals reversed.¹ This Court granted leave to appeal limited to the question whether there was sufficient evidence to support the Wcab’s finding that McKissack was suffering from a continuing disability.² We reverse because we find that there was sufficient evidence.

I

McKissack, a fifty-four-year old senior medical technologist, commenced employment with Comprehensive Health Services in 1977. She fell while walking across an employee parking lot on June 20, 1983. She sustained a fracture of the right knee and left elbow, and was hospitalized initially for two weeks, and returned for an additional week in September. After casts were removed from her right knee and left elbow, she was placed on a regimen of physical therapy.

McKissack’s attending physician acquiesced in her request to return to work, but imposed restrictions against prolonged standing or walking, strenuous use of the left arm, repetitive bending, and heavy lifting. She returned to her full duties as a medical technologist on January 18, 1984. She walked with a marked limp. She often resorted to the use of a cane to assist her in ambulation. She had a limitation of motion in her left arm, her elbow being frozen at the fracture site. She testified that she moved slowly in performing her duties because of right leg, left shoulder, and left arm pain, and that she could not move her arm upward more than forty degrees.

A

The hearing referee found that McKissack resigned on November 26, 1984, after she was asked to do so because she had failed to carry through to conclusion certain ana tests, and, as a result, two patients were placed in intensive care, exposing Comprehensive Health Services to possible litigation.

The hearing referee concluded,, on the basis of the testimony of physicians who examined McKissack for Comprehensive Health Services, that McKissack was able to perform her normal occupational duties on her last day of work, November 26, 1984, and that she did not leave work because of her injuries of June 20, 1983, "but as a result of an unfortunate series of incidents in which she neglected to follow through on ana testing procedures which she, herself, had been instrumental in establishing.” McKissack had thus failed to sustain the burden of proving disability beyond January 18, 1984.

B

The wcab reversed, stating that, on the basis of the testimony of the treating and examining physicians, the testimony of McKissack, and of lay witnesses, McKissack was "unable to continue to perform her job as a medical technologist due to the physical residuals of the injury . . . .” The wcab found as facts that McKissack’s "arm limitations affected her ability to perform her job, to the extent that the job was painful,” that "her performance was slower than prior to the injury,” that her supervisor asked her "to work more quickly,” and that the mistake³ was due to the "speed up” required by McKissack’s "supervisor when she was unable to work quickly.”⁴

The wcab added that McKissack "was not able to perform the work” at Comprehensive Health Services, and that, even if she were able to perform the work, Comprehensive Health Services "has not shown a violation of company rules which would normally result in termination of a non-disabled employee.” The wcab explained that McKissack’s direct supervisor "did not feel the test performance was grounds for termination; and in fact blamed herself for part of the problem.”

c

The Court of Appeals reversed the decision of the wcab. It acknowledged that it "is bound by findings of fact made by the [wcab], which are conclusive in the absence of fraud. Const 1963, art 6, § 28” and that its "authority is to review only questions of law . . . .”

The Court of Appeals said that there was competent evidence to support the wcab’s determination that McKissack "could perform her duties as a medical technologist more slowly after injury than before, and only with .pain.” It said that that finding failed to establish, however, that Mc-Kissack is " 'disabled’ as statutorily defined. After injury, plaintiff returned to her regular employment and suffered no diminution of remuneration. The record is wholly void of evidence that, after injury, the speed with which plaintiff could carry out her job duties was below .the minimum acceptable for a medical technologist employed by” Comprehensive Health Services.

The Court of Appeals said that while McKissack "could only work with pain,” she "could perform and was performing her duties when she resigned from her employment. Merely because her work was painful does not establish that she could not perform it or that she was disabled from performing it. Kostamo v Marquette Iron Mining Co, 405 Mich 105, 116 [274 NW2d 411] (1979).”

The Court of Appeals in effect found that McKissack had not "been fired because of inability to keep pace with the demands of her employer . . . .”⁵ It said, assuming that McKissack "established a disability,” she was nevertheless precluded from receiving benefits because "she had not yet been fired, she was working under a 'bona fide offer of reasonable employment from the previous employer’ ” within the meaning of § 301(5)(a)⁶ of the Worker’s Disability Compensation Act: "Whatever the motivation for plaintiff’s resignation, whether it was under pressure or not, even assuming she was disabled, she nonetheless resigned.”

ii

The Court of Appeals erred in stating

—that there was no evidence that "the speed with which plaintiff could carry out her job duties was below the minimum acceptable” by Comprehensive Health Services;

—that evidence the work was painful does not establish that McKissack "was disabled from performing it”;

—that McKissack was not "fired because of inability to keep pace with the demands of her employer”; and

—assuming that McKissack "had established a disability,” § 301(5)(a) precludes her from receiving benefits because she had not been fired but rather, "[w]hatever the motivation for plaintiff’s resignation, whether it was under pressure or not, even assuming she was disabled,” she had resigned from a " 'bona fide offer of reasonable employment from the previous employer.’ ”

There was evidence that "the speed with which plaintiff could carry out her job duties was below the minimum acceptable” by Comprehensive Health Services.

McKissack testified that she "didn’t have the speed that [she] had before” her injury. She "was coping with pain,” and "couldn’t handle the load that [she] previously could handle.” Her supervisor complained about the speed of her work. "[She] was constantly told [by her supervisor] that [she was] not holding up [her] end. The employees work[ed] extra to save [her] job for [her], and [she was] not holding up [her] end. This was constantly brought to [her] attention” by her supervisor. A coworker testified that on a number of occasions she overheard the supervisor so remonstrating with McKissack about her failure to hold up her end of the work.

McKissack’s testimony and the testimony of her co-worker contravene the statement by the Court of Appeals that the "record is wholly void of evidence” that the speed with which McKissack could carry out her duties was below the minimum acceptable by Comprehensive Health Services.

Evidence that the work was painful was properly considered by the wcab in determining that McKissack "was disabled from performing it.”

The Court of Appeals said, citing this Court’s decision in Kostamo v Marquette Iron Mining Co, supra at 116, that "[m]erely because her work was painful does not establish that she could not perform it or that she was disabled from performing it.” In Kostamo, this Court said that the worker’s compensation act "does not provide compensation for a person afflicted by an illness or disease not caused or aggravated by his work or working conditions. Nor is a different result required because debility has progressed to the point where the worker cannot work without pain or injury.” Id.

Clearly there is a difference between pain resulting from "illness or disease not caused or aggravated” by the work or working conditions, and pain resulting from a work-related injury. As indicated in Kostamo, worker’s compensation benefits may not be awarded simply because a worker is unable by reason of pain to continue with the work if the cause of the pain is illness or disease not caused or aggravated by the work or working conditions. But contrariwise, if the wcab finds that pain is caused or aggravated by a work-related injury, and the worker cannot by reason of pain resulting from the injury continue to work, the wcab can find that the worker is disabled and award benefits.

The Court of Appeals exceeded its authority in finding in effect as a fact that McKissack was not "fired because of inability to keep pace with the demands of her employer . . . .”

It is one thing for the Court of Appeals to find that there is insufficient evidence to support a finding of fact made by the wcab; the Court of Appeals exceeds its authority when it makes its own findings of fact. Thomas v Griffin Wheel Co, 8 Mich App 35, 45; 153 NW2d 387 (1967).

Moreover, the wcab found that Comprehensive Health Services had "not shown a violation of company rules which would normally result in termination of a non-disabled employee.” The wcab thus found that Comprehensive Health Services had not shown to the satisfaction of the wcab that McKissack was asked to resign for a reason other than her inability to keep up with the work, an inability that the wcab found to have been caused by her work-related injury.

D

Although § 301(5)(a) provides that an employee shall be deemed voluntarily removed from the work force and no longer entitled to any wage-loss benefits during a period of a refusal of a bona fide offer of reasonable employment from a previous employer, such as Comprehensive Health Services, or, indeed, another employer, or through the Michigan Employment Security Commission, that stricture is not, by the terms of § 301(5)(a), applicable unless the "employee refuses that employment without good and reasonable cause.”⁷

Clearly an employee, such as McKissack, may be found by the wcab to have "good and reasonable cause” to refuse even a "bona fide offer of reasonable employment” on a finding that the employee refused the employment or refused, by resigning, to continue in the employment because she was disabled from doing the work demanded by the employer.⁸ Such a finding by. the wcab is implicit in its other findings. See Thomas v Griffin Wheel Co, supra.

The wcab found that McKissack was disabled from doing the work demanded by Comprehensive Health Services; it said: "we find plaintiff has proven by a preponderance of the evidence that the work related disability to the left elbow precludes her from performing her medical technologist job as the job existed prior to injury.” That finding is supported by the wcab’s findings of fact that McKissack’s "arm limitations affected her ability to perform her job, to the extent that the job was painful,” that "her performance was slower than prior to the injury,” that she "was told by her supervisor to work more quickly,” and that the "mistake” made by her was due to the "speed up” required by her supervisor when she was unable to work quickly.

The wcab’s finding that McKissack was disabled from doing the work demanded by Comprehensive Health Services established that she was disabled within the meaning of the worker’s compensation act, which, at the time, defined "disability” as "a limitation of an employee’s wage earning capacity in the employee’s general field of employment resulting from a personal injury or work related disease.”⁹ As set forth at the outset of this opinion, we conclude that there was sufficient evidence to support the wcab’s finding that McKissack was suffering from a continuing disability.

hi

The wcab found that McKissack was totally disabled from January 19, 1984, the day after she returned to Comprehensive Health Services and resumed her full duties as a medical technologist. Comprehensive Health Services declares in its brief in this Court that this is mind boggling: "It is an oxymoron to declare at once and the same time that an injured employee is totally disabled from a field of endeavor upon resuming work in that field!” (Emphasis in original.)¹⁰

Comprehensive Health Services contends that if McKissack was disabled at all, she was partially, not totally, disabled, and that the wcab should in all events be required to determine a residual wage-earning capacity for McKissack as a partially disabled person pursuant to this Court’s decision in Trask v Modern Pattern & Machine Co, 222 Mich 692; 193 NW 830 (1923), and the decision of the Court of Appeals in Sobotka v Chrysler Corp (On Rehearing), 198 Mich App 455; 499 NW2d 777 (1993).

In Sobotka v Chrysler Corp (After Remand), 447 Mich 1; 523 NW2d 454 (1994), we reversed the decision of the Court of Appeals. The lead and concurring opinions held that Trask and any progeny have been superseded by subsequent legislation insofar as they allowed consideration of general changes in economic conditions as a factor "to be used to determine the proportionate extent of an impairment of earning capacity,” id., p 29. Sobotka holds that an employer is not entitled to a determination of a residual wage-earning capacity and that the absence of wages and evidence of a work-related injury permits an award of maximum benefits. The factfinder is free to accept or reject evidence of actual wages earned, avoided, or refused, or other factors affecting an employee’s actual as opposed to theoretical, employability.

In the instant case, the wcab concluded that McKissack was totally disabled from doing the work demanded by Comprehensive Health Services from and after the date of her resignation. No wage-earning capacity was established by evidence of actual wages earned, avoided, or refused after that date. In addition, no evidence was accepted by the wcab questioning the extent of McKissack’s injury or other factors affecting her employability.

By reason of this Court’s decision in Sobotka, there is no need to remand to the Court of Appeals to consider other issues not addressed by the Court of Appeals.

Reversed and remanded to the Worker’s Compensation Appellate Commission for implementation of the award of benefits.

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

1 Unpublished opinion per curiam, issued December 29, 1992 (Docket No. 141512).

2 This Court denied the motion of Comprehensive Health Services to add the issues adverted to in the following paragraph of Comprehensive Health Services’ motion:

A decision by the court on the issue about continuing disability that was described in the order granting leave is the gateway to other issues that include (i) the specific extent of any continuing disability to determine the amount of weekly worker’s disability compensation for the employee, Trask v Modern Pattern & Machine Co, 222 Mich 692; 193 NW 830 (1923), compare, Sobotka v Chrysler Corp [(On Rehearing), 198 Mich App 455; 499 NW2d 777 (1993)]; (ii) whether any entitlement to weekly workers’ disability compensation benefits for the employee is suspended by the operation of MCL 418.301(5)(a);' MSA 17.237(301)(5)(a) and (iii) whether any claim for weekly worker’s disability compensation for the employee may be considered by operation of collateral estoppel, Paschke v Retool Industries (Docket No. 96276).

McKissack responded to the motion that she had been found totally disabled by the wcab and that Sobotka "by its terms is limited to a partially disabled employee,” and that § 301(5) is not involved because McKissack did not refuse an offer of employment. Paschke v Retool Industries, 445 Mich 502; 519 NW2d 441 (1994), and Sobotka v Chrysler Corp (After Remand), 447 Mich 1; 523 NW2d 454 (1994), was recently decided by this Court.

3 Referring apparently to the ana tests.

4 The wcab said:

It is uncontested and it is found as fact that the range of motion of plaintiff’s left elbow is limited'at approximately 40 degrees from extension, although plaintiff retains range of motion on supination and pronation. Plaintiff’s job requires extensive use of the hands in mixing substances, reaching into supply cabinets, handling specimen, and using machines such as a centrifuge. We find credible the testimony of treating physician Dr. Wyche, that pain is associated with extreme movements of the elbow. Plaintiff testified she soaked her arm in the morning to achieve mobility. She testified, and Ms. Jordan verified, some of the tests were difficult and awkward for her to perform.

We find as fact that plaintiff’s arm limitations affected her ability to perform her job, to the extent that the job was painful, and that her performance was slower than prior to the injury. We find as fact plaintiff was told by her supervisor to work more quickly. We find as fact that the mistake made by plaintiff was due to the "speed up” forced upon her by her supervisor when she was unable to work quickly. We find as fact plaintiff’s arm condition cannot be expected to heal any further.

Applying our findings to the law, we find plaintiff has' proven by a preponderance of the evidence that the work related disability to the left elbow precludes her from performing her medical technologist job as the job existed prior to injury. We find plaintiff disabled pursuant to Kidd [v General Motors Corp, 414 Mich 578; 327 NW2d 265 (1982)], and Kaarto [v Calumet & Hecla, Inc, 367 Mich 128; 116 NW2d 225 (1962)].

5 The Court of Appeals said:

Had plaintiff been fired because of inability to keep pace with the demands of her employer, a different situation would be presented.

6 If disability is established pursuant to subsection (4), entitlement to weekly wage loss benefits shall be determined pursuant to this section and as follows:

(a) If an employee receives a bona fide offer of reasonable employment from 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. [MCL 418.301(5); MSA 17.237(301X5), added by 1981 PA 200.]

7 See n 6 for text of § 301(5)(a).

8 Section 301 defines "reasonable employment”:

"Reasonable employment,” as used in this section, means work that is within the employee’s capacity to perform that poses no clear and proximate threat to that employee’s health and safety, and that is within a reasonable distance from that employee’s residence. The employee’s capacity to perform shall not be limited to jobs in his or her general field of employment. [MCL 418.301(9); MSA 17.237(301X9). Emphasis added.]

9 1981 PA 200, MCL 418.301(4); MSA 17.237(301X4).

1987 PA 28, substituted "work suitable to his or her qualifications and training” for "employee’s general field of employment.”

10 Comprehensive Health Services continues with its argument:

Moreover, it is an agreed fact that the Employee did the work of a certified medical technologist just as any other person working right alongside her. There was no alteration, no accommodation and no assistance provided to the Employee that was not provided to anyone performing the work.

In short, it is difficult to apprehend how the Employee was totally disabled and entirely unable to work and earn a living in her field as a certified medical technologist after she actually had resumed the job, without alteration, accommodation or assistance different from any other such worker and had no complaint and always represented the ability to work. [Emphasis in original.]