Price v City of Westland

547 N.W.2d 24, 451 Mich. 329, 1996 Mich. LEXIS 972

• Court: Michigan Supreme Court
• Decided: May 7, 1996
• Docket: 99046, Calender No. 4
• Status: Published

Opinions

Boyle, J.

This worker’s compensation case involves the narrow question whether testimony by defendant before the magistrate establishes a “bona fide offer of reasonable employment . . . MCL 418.301(5)(a); MSA 17.237(301)(5)(a). We conclude that the testi-' mony does not create a bona fide offer of reasonable employment because defendant failed to limit the offer to specific employment that would accommodate the physical limitations the magistrate and the Worker’s Compensation Appeals Board found to exist.

i

There is no dispute that plaintiff, while serving as a police officer for defendant, suffered a compensable, work-related, back injury during the arrest of an intoxicated individual in June, 1983. From the date of injury until March, 1985, plaintiff sporadically worked light-duty jobs, including a sedentary position with access to a cot that was specifically created for him by the chief of police in December, 1984.

Plaintiff’s back pain became increasingly severe, and, on the advice of his physician, Dr. Steven Newman, he stopped working on March 8, 1985. Plaintiff was subsequently examined by defendant’s physician, Dr. John Barber, on March 14, 1985. Dr. Barber found no work limitations.

On the basis of Dr. Barber’s report, the chief of police mailed plaintiff a letter, dated April 3, 1985, indicating that he was to “return to work with no limitations” and that if he failed to report, his “time [would] no longer be charged to duty injury.” Rather than returning to work, plaintiff filed a petition for worker’s compensation benefits.

The matter was heard before a magistrate on February 27, 1986, and April 21, 1986. Medical testimony was presented from the depositions of three physicians,¹ and the record was closed on May 26, 1986.

Defendant argued before the magistrate that the April 3, 1985, letter was a bona fide offer of reasonable employment and that benefits should be terminated as of that date because plaintiff had unreasonably refused to accept that offer.² On April 21, 1986, Inspector Dansby and Police Chief Rechlin testified that they never intended that plaintiff return to a regular job without restriction. Chief Rechlin stated that, subject to the city doctor’s recommendation, the job specially created for plaintiff in December, 1984, remained available.

The magistrate concluded that plaintiff was disabled as a result of a back injury “arising out of and in the course of employment with this defendant due to the injury of June 7, 1983. He is unable to return to regular work duties as a police officer.” The magistrate further concluded that there was

no offer of favored work on April 3, 1985 and a reasonable refusal of the plaintiff to return to regular duties at the time. ... If the city offers a job of favored work, they should make it clear that such a job is offered, and not include such an offer in a letter following a paragraph indicating the plaintiff is released by their doctor for unrestricted duties.

The magistrate also concluded, however, that plaintiff was able to perform the job that had been created for him in December, 1984, which “defense council [sic] had indicated on the record on February 27, 1986 . . . was available.” Because the job was still available,

plaintiff should have contacted the defendant to see about this work. Worker’s Compensation benefits will be suspend form [sic] that date based on the indication that the favored work was available.

Benefits were awarded from April 2, 1984, to February 27, 1986. Both parties appealed the magistrate’s decision to the WCAB.

In December, 1990, the wcab affirmed the magistrate’s decision, but modified the decision by terminating benefits on April 21, 1986. 1990 WCABO 1515, 1516. Rather than relying on defense counsel’s statement on February 27, 1986, that a favored-work position remained available, the wcab concluded that Chief Rechlin’s testimony on April 21, 1986, established a bona fide offer of reasonable employment. The wcab noted:

Chief Rechlin indicated that as of April 21, 1986, the special services job as it previously existed, including cot-resting privileges, remained available to plaintiff. While Dr. Newman’s 1986 testimony indicated that this job still could not be performed if cot-resting were limited to 10 minutes daily, as per his history of the early 1985 experience, we find that defendant then made a bona fide offer of reasonable work. Plaintiff should have then reported to defendant to make a reasonable attempt to perform those duties, as they were then offered by defendant, in the light of the opinions from Drs. Lele and Barber. His failure to do so entitles defendant to suspend benefits from that date until he makes a good faith attempt to perform those duties within the limitations established by Dr. Newman. [1990 WCABO 1524-1525.]

Plaintiff’s application for leave to appeal was denied by the Court of Appeals. Plaintiff appealed to this Court and we remanded the case to the Court of Appeals for consideration as on leave granted.³

The Court of Appeals affirmed on remand in an unpublished opinion per curiam, issued December 21, 1993 (Docket No. 150640), and denied rehearing on February 16, 1994. Plaintiff again sought leave to appeal in this Court, and we denied plaintiff’s application on October 25, 1994.⁴ Plaintiff filed a motion for reconsideration, and we granted leave to appeal on June 23, 1995.⁵

n

The factual determinations of a court are inherently limited attempts to re-create reality in order to answer real-world questions — here, the relatively straightforward matter regarding whether there was a specific job within plaintiff’s physical limitations to which he could have returned. At the outset, we note that in this case that attempt has been complicated and frustrated by intransigence and an abysmal lack of communication between plaintiff and defendant. Both parties are to blame: defendant could have more precisely defined the job it was inviting plaintiff to return to, and plaintiff could just as easily have returned to work to learn the nature of the employruent described and the limitations the city doctor felt were appropriate. Neither option was chosen.⁶ The result has been a tortuous nine-year journey through the judicial system. The predictable consequence is an effect on the losing party out of all proportion to the original dispute.

In 1981, the Legislature codified the judicially created “favored work” doctrine in the “reasonable employment” provisions of the Worker’s Disability Compensation Act, with numerous changes not relevant to this case. Pulver v Dundee Cement Co, 445 Mich 68; 515 NW2d 728 (1994); MCL 418.301; MSA 17.237(301). Like favored work, if a disabled worker unreasonably refuses a “bona fide offer of reasonable employment,”⁷ the worker “is no longer entitled to any wage loss benefits . . . during the period of such refusal.”⁸

The pertinent issue in this case — an issue equally relevant under both the favored-work doctrine and the reasonable employment provisions — is whether defendant made a “bona fide offer of reasonable employment.”⁹ (Emphasis added.) The WCAB concluded that testimony of Chief Rechlin established a “bona fide offer of reasonable work,” 1990 WCABO 1525, and the Court of Appeals affirmed this conclusion stating:

[T]he testimony of two police officials and plaintiffs supervisor on February 27, 1986, and April 21, 1986, that a job in the records department was still available to plaintiff, subject to the city physician’s approval, was competent evidence in the record to support the wcab’s conclusion that the city made an offer of favored work on April 21, 1986. [Slip op at 1.]

Whether defendant made a bona fide offer of favored work is generally a factual issue. Findings of fact by the WCAB are conclusive if supported by any competent evidence. Const 1963, art 6, § 28; MCL 418.861; MSA 17.237(861); Kostamo v Marquette Iron Mining Co, 405 Mich 105, 147; 274 NW2d 411 (1979). However, “[e]rror may be committed by basing a finding of fact on a misconception of law and by failing to correctly apply the law to the finding of fact.” Braxton v Chevrolet Grey Iron Foundry, 396 Mich 685, 692-693; 242 NW2d 420 (1976); Pulver v Dundee Cement Co, supra at 87 (Riley, J., dissenting).

A bona fide offer of reasonable employment must describe with a fair degree of specificity the duties the disabled employee is to perform. Kolenko v United States Rubber Products, Inc, 285 Mich 159; 280 NW 148 (1938). Specific employment with established responsibilities within the employee’s limitations must be presented for the employee to accept. A general invitation for a disabled employee to come in, and something will be found is an insufficient offer. Maddox v General Motors Corp, 1986 WCABO 578. The offer must be for a “specific restricted job,” not an “unspecified grouping” of jobs, which may or may not accommodate the employee’s limitations. Id. at 581.

Nearly sixty years ago, this Court addressed a case involving facts analogous to this case. In Kolenko, supra, the plaintiff sustained a work-related injury, and the defendant voluntarily paid benefits. Eventually the defendant filed a petition to terminate benefits, contending that the plaintiff failed to cooperate by refusing to accept employment tendered by the defendant. The plaintiff testified that she refused to return to work because the defendant would not explain what her employment responsibilities would be. On appeal, this Court affirmed the Department of Labor and Industry’s conclusion that the plaintiff’s refusal to accept unspecified employment did not illustrate such a lack of cooperation that benefits should be forfeited.

Plaintiff was under no obligation to comply with the unreasonable and arbitrary demand of defendant that she accept whatever work the company thought suitable for •her. [Id. at 162.]

When an employer seeks to fulfill its worker’s compensation requirements by offering a disabled employee reasonable employment, it must inform the worker of the “kind of work [the employee] would be expected to do” and “the nature of the job.” Id. at 161. In short, the employee has a right to know “what the job consistfs] of.” Id. at 162.

In this case, both Inspector Dansby and Chief Rechlin testified that, in accordance with city policy, before any police officer could return to work of any nature after a medical leave, the officer had to undergo a medical examination by the city doctor. This requirement applied to all officers who were returning after medical leave, regardless of whether a work-related injury was involved.

Testimony of both Inspector Dansby and Chief Rechlin, however, went beyond merely requiring the city doctor, Dr. Barber, to agree that plaintiff could do the reasonable employment described at trial within the limitations indicated by plaintiff’s physician, Dr. Newman. Plaintiff was not offered a specific job within the limitations described by Dr. Newman, subject to approval by the city physician, but, rather, any work limitations would depend solely on the city doctor’s recommendations. The exact nature of plaintiff’s duties would not be established until after the city doctor examined him.

After reviewing the testimony before the magistrate, the wcab noted the lack of specificity in the duties plaintiff would be asked to undertake:

[T]he type of duties to which plaintiff would be assigned ultimately depended on the outcome of any new examination by Dr. Barber, if and when plaintiff reported for work. [1990 WCABO 1522-1523.]

If the city doctor found no work limitation, plaintiff faced the possibility of returning to normal duty.¹⁰ In light of this possibility, we conclude that defendant was not offering a specific job within the physical limitations described by Dr. Newman, limitations the magistrate and the wcab concluded were appropriate.¹¹ Thus, while we accept the wcab’s factual determinations, we conclude as a matter of law that defendant’s testimony does not fulfill the legal requirements of a bona fide offer.

Testimony that plaintiff’s previous favored-work position was still “available” does not create a bona fide offer of reasonable employment in this case because the testimony was equivocal with respect to whether plaintiff would be allowed to return to that specific job. Although the duties associated with this job were described with sufficient specificity, defendant refused to concede that plaintiff would not be required to undertake more strenuous responsibilities, but repetitively reinforced that all limitations might be removed by the city doctor.¹² The fact that plaintiff knew the responsibilities associated with the favored-work position does not mean that that job was being offered for plaintiffs acceptance. See Dixon v General Motors Corp, 1989 WCACO 226, 233.

We do not decide that the offer is defective because the employer conditioned actual employment upon the approval of a physician. This case is different from one in which an employer invites an employee to return to specific employment within the employee’s limitations, contingent upon approval by the employer’s or the employee’s doctor. In this case, the offer fails because defendant did not definitively offer specific employment within the physical limitations found to exist by the magistrate and WCAB. Defendant essentially offered plaintiff employment with duties ranging from unlimited cot-resting privileges to full patrol responsibilities.

In an effort to limit defendant’s offer to a job within the limitations described by Dr. Newman, the WCAB engrafted a qualification on the city doctor’s recommendation that is not supported by defendant’s testimony. The WCAB restricted defendant’s job offer by reinstating benefits if defendant assigned plaintiff a more demanding job than that described by Dr. Newman.

If any other duties than those within Dr. Newman’s restrictions are prescribed for plaintiff after he is reexamined by Dr. Barber in compliance with defendant’s announced policy in such situations, benefits are to be reinstated. [1990 WCABO 1525.]

This qualification was created solely by the wcab and is not supported by the record.¹³

Absent this limitation, however, we are left with a situation in which defendant invites plaintiff to return to work, announces that a job within plaintiff’s limitations is available, but then concedes that, depending on what defendant’s physician recommends, plaintiff’s ultimate employment duties may be far more demanding than those previously described. We conclude that such an invitation does not rise to the level of specificity necessary to create a bona fide offer of reasonable employment and benefits may not be terminated because plaintiff failed to respond to such an offer.

We reverse the decision of the Court of Appeals and remand this case to the Worker’s Compensation Appellate Commission for further proceedings consistent with this opinion.

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

1 Plaintiff offered the deposition of Dr. Newman, and defendant submitted the depositions of Dr. Barber and Dr. Lele.

2 See n 7.

3 439 Mich 971 (1992).

4 447 Mich 995.

5 449 Mich 859.

6 The unfortunate lack of clarity in the record appears to have been caused by an extraordinary amount of contentiousness between the lawyers. From this vantage point, there is enough blame to go around and that makes this a difficult case to decide, but decide we must. The dissent highlights the strength of defendant’s position, but defendant’s refusal to guarantee that additional duties would not be placed on plaintiff destroys the specificity necessary to create a valid offer. Any ambiguity must be construed in favor of plaintiff because defendant has the burden of proving that it made a bona fide offer of reasonable employment. See Kolenko v United States Rubber Products, Inc, 285 Mich 159, 162; 280 NW 148 (1938). Defendant has not carried that burden in this case.

7 Reasonable employment is defined as follows:

“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 the employee’s residence. The employee’s capacity to perform shall not be limited to jobs in work suitable to his or her qualifications and training. [MCL 418.301(9); MSA 17.237(301)(9).]

8 MCL 418.301(5); MSA 17.237(301)(5) in its entirety provides:

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 the 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.

9 Plaintiff does not contend that any discrepancies between favored work or “reasonable employment” affect the outcome of this case.

10 The cross-examination of Inspector Dansby by Mr. Kadushin went as follows:

Q. [Mr. Kadushin]: I think you stated just before that the job is being offered today, in other words once this case is over, if he goes back to Westland Police Station, there will be a job there with a bed and he could lay down whenever he feels it’s necessary? That job is open and being offered to him today by the City of Westland? You have the authority to make that offer?

A. [Inspector Dansby]: That would depend on medical reports.

We would send him to a city doctor.

Q. Well, you’re saying if the city doctor says he could do that job, that job is available to him?

A. If the doctor decides that he could return to normal duties, he would go back on the road.

Q. It’s the city doctor that decides that he could return to normal duties? That job is not available to him?

A. We never had that until Officer Price came along.

Q. I want to know what kind of job offer that is? Is it qualified based on some medical report?

A. It would be qualified based on some medical report.

Chief Rechlin reinforced Inspector Dansby’s testimony that the job description would depend on the city doctor’s findings.

Q. [Mr. Kadushin]-. If the city doctor said that he could return to work without much difficulty, he could go back out on the road again and not on a cot?

A. [Chief Rechlin]: Yes.

Q. But, if he [the city doctor] said that he could perform that or anything, you would put him back on the road?

A. That’s a possibility, although that never entered into my mind, putting him back on the road.

Q. Is it true, though, that the availability of any given particular job as far as limitations and restrictions are concerned, as to one extent to another, depends on what the city doctor says a person can or cannot do?

A. Yes.

11 The employer has the authority to require the employee to visit a doctor. MCL 418.385; MSA 17.237(385). On the basis of the doctor’s conclusion, the employer may then offer a specific job tailored to fit the limitations, or lack thereof, imposed by the examining doctor.

12 We agree with the dissent that a specific job was described and defendant noted that that job was available depending on what the city physician concluded. The job described delineated the minimum duties plaintiff would be required to do. The trial testimony clearly indicates, however, that the city doctor could impose less demanding restrictions thus leading to more demanding duties. We do not dispute that employment with the police department may have been “available." We do dispute whether there was a sufficiently specific bona fide offer of reasonable employment.

13 We take no position on whether the result would change if this qualification was supported by the record and examination by defendant’s physician was truly a formality that could not remove the limitations imposed by Dr. Newman.