S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET # OPINION

Transcription

1 CECILE M. REDER, PLAINTIFF, 1998 OPINION #290 S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET # R.C. HENDRICK & SONS, INCORPORATED AND MICHIGAN MUTUAL INSURANCE COMPANY, DEFENDANTS. AFTER REMAND TO MAGISTRATE LENGAUER. EDWARD J. GALLAGHER FOR PLAINTIFF, GERALD M. MARCINKOSKI FOR DEFENDANTS. MILLER, CHAIRPERSON OPINION Plaintiff, a journeyman carpenter, injured her back on July 7, She was voluntarily paid disability benefits until March 25, 1992, when she allegedly unreasonably refused an offer of reasonable employment. She filed an Application for Mediation or Hearing, and after hearing, Magistrate John R. Whitehouse, by opinion and order mailed July 1, 1993, found that the offer lacked the specificity to qualify it as a bona fide offer of favored work and ordered a resumption of benefits. Defendant appealed, and the Commission noted that plaintiff s vocational rehabilitation program at Delta Community College resulted in her earning an Associate s Degree in Architectural Technology. After this training, defendant offered her a job, which she declined. The Commission affirmed Magistrate Whitehouse s finding that the job offer was unreasonable, but noted that by way of her training at Delta College, plaintiff has now expanded her employability at defendant s expense. It would violate all sense of fair play to hold that defendant is not entitled to the benefit of its investment. Plaintiff was the recipient of a real world job offer. The Commission held that, under Sobotka v Chrysler Corp, 447 Mich 1 (1994), employers are entitled to the benefit of their employee s residual wage-earning capacity so long as this capacity was based on real jobs in the real world. Since the record was incomplete as to the wages offered, the Commission remanded the matter to the Board of Magistrates for a determination of the wage offered by Three Rivers Corporation to plaintiff on or about May 9, Docket # , found at 1996 ACO # 36.

2 Magistrate Thomas E. Lengauer, by opinion and order mailed February 19, 1997, took additional testimony and found that the offered wage was $220 per week, and since the average weekly wage at defendant was $508 per week, he reduced this amount by $220 and calculated plaintiff s rate of $192 per week based on the $288 per week differential. Both plaintiff and defendant appealed. On appeal, plaintiff presents the following arguments: ARGUMENT I THE FINDING OF MAGISTRATE LENGAUER THAT THE WAGE OFFERED BY THREE RIVERS CONSTRUCTION COMPANY WAS $5.50 PER HOUR IS NOT SUPPORTED BY COMPETENT, MATERIAL AND SUBSTANTIAL EVIDENCE ON THE WHOLE RECORD AND IS THEREFORE PROPERLY REVERSIBLE BY THIS COMMISSION. ARGUMENT II IT IS LEGALLY IMPROPER TO REDUCE THE PLAINTIFF S AWARD OF BENEFITS ON THE BASIS OF AN ALLEGED RESIDUAL WAGE EARNING CAPACITY WHEN SHE WAS NOT EMPLOYED POST-INJURY AND THE ONLY POST-INJURY JOB OFFERED WAS NOT A VALID OFFER OF REASONABLE EMPLOYMENT WITHIN THE MEANING OF MCL (5); MSA (301)(5). Defendant presents the following argument: ARGUMENT THE MAGISTRATE HAS ERRED IN HIS MATHEMATICAL CALCULATION OF PLAINTIFF S WEEKLY RATE OF COMPENSATION; FURTHERMORE, DEFENDANTS SHOULD BE ENTITLED TO HAVE THE BENEFIT OF THE PAY INCREASE PLAINTIFF WOULD HAVE EXPERIENCED HAD SHE RETURNED TO WORK. In support of her first argument, plaintiff states that Magistrate Whitehouse s opinion lacked clarity and the testimony on remand of defendant s vocational consultant, Susan Lyon, is not competent to support a finding regarding any specific wage; Magistrate Lengauer s reliance on her testimony for that purpose constitutes legal error. The testimony of Mr. Kozakiewicz that he does not recall discussing any amount or offering any particular wage to the plaintiff renders his testimony incompetent to support a finding that this was the specific wage offered to her or, in fact, that any wage at all was actually offered directly to her. Magistrate Lengauer s finding that a $5.50 per hour 2

3 wage was offered is without competent, material and substantial support on the record and should be reversed. Substantial evidence is such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion. MCL a(3). It consists of more than a scintilla of evidence, although the evidence may amount to substantially less than a preponderance; Tomkins v Dep t of Social Services, 97 Mich App 218, 222 (1980). Both Daniel Kozakiewicz 2 and Susan Lyon 3 testified on remand to $5.50 per hour as being the wage in question. The requisite evidence is on the record to support the magistrate s conclusion that he could rely on this figure to comply with our remand order. Plaintiff cites Haske v Transport Leasing, Inc, Indiana, 455 Mich 628 (1997), in support of her second argument that it is legal error to reduce Plaintiff s Workers Compensation award on the basis of an alleged residual wage earning capacity absent post-injury employment or a bonafide offer of reasonable employment within the meaning of subsection 301(5) of the Act which the Plaintiff has unreasonably refused. Plaintiff quotes Haske, at : Most importantly, we rejected the principle that the employer of a partially disabled employee should be credited with a wage-earning capacity in the absence of postinjury employment. As we specifically stated, this means that it is not part of the plaintiff s burden in proving disability that other factors are not the cause of his unemployment. Plaintiff need not prove what he is theoretically "able to earn" after the injury, that other factors are not the cause of his unemployment, or that the amount of residual capacity is diminished. 36 If the magistrate credits testimony that there is a direct link between wages lost and a work-related injury, plaintiff need not prove anything in addition. 37 By the language and structure of the statute and previous interpretation of the Court, an employee must prove a reduction in earning capacity. However, Sobotka furnishes no authority for the proposition that plaintiffs must prove absence of residual earning capacity, i.e., an inability to earn the same wages when considering all the jobs within his qualifications and training. Further, except as otherwise indicated, subsection 301(5) does not require an adjustment of benefits on the basis of existence of a residual wage-earning capacity. Whether disability is total or partial, actual loss of wages causally linked to a workrelated injury is loss of wage-earning capacity Deposition, p 4. 3 Deposition, p 12. 3

4 36 Thus, we reject the position of the WCAC majority in Brown [v Contech, 1992 ACO # 772] n 35 supra at 2496, that benefits are not awardable because a plaintiff who retains "'considerable residual ability' [is] therefore not disabled," and we reject the position taken by the WCAC in Braddock v Bellrose, Inc, 1994 Mich ACO 2319, that the factfinder may reduce benefits where the evidence "show[s] that other factors caused the worker's post-injury unemployment...." See Welch, n 18 supra at , n The plaintiff's contention that maximum benefits were mandated even though no job had been offered because 361 awards the difference between what plaintiff is "able to earn" (zero, where work is not offered) after the injury and what he earned before was rejected simply because such an argument fails to acknowledge the magistrate's authority to resolve the credibility question. 38 An employer may refute the causal connection between the partial disability and the employee's unemployment with evidence that other factors are the cause of the unemployment, e.g., an employee's ailments that are unrelated to his previous employment or malingering. Id. at 22, and 26, n 26 (BOYLE, J., lead opinion) (relying on 1C Larson, 57.12(e), p 1056), 53 (BRICKLEY, J., dissenting). However, where the employer chooses to produce evidence regarding the availability of specific employment, such evidence is admissible solely to refute the causal connection. Haske overrules previous decisions calling for a computation of residual wage-earning capacity for the purpose of adjusting benefits in recognition of wages a claimant is theoretically able to earn in real jobs available in the real world. Such evidence is admissible only to refute the causal connection between disability and wage loss. Even though our residual-wage-earning-capacity analysis has been overruled, we do not believe, as plaintiff asserts, that an adjustment of benefits is always inappropriate; a partial rate of compensation may be available upon a showing that a claimant is avoiding lesser-paying work; Mayse v Wirt Transport Co, 1997 ACO #528. Here, we affirmed the magistrate s finding that defendant s offer of employment was unreasonable. This offer was the only evidence on the record of a job opportunity having the potential of showing that plaintiff s wage loss was unrelated to her disability. Under Haske, plaintiff is entitled to full benefits until such time as she is reemployed, unreasonably refuses reasonable employment, or it is shown that factors other than her disability are the cause of her wage loss. Defendant argues that the magistrate erred in his mathematical calculation of plaintiff s weekly rate of compensation. Defendant s partial-offset argument is moot in view of our decision. Similarly, defendant s incremental-increase argument is moot. Magistrate Whitehouse s decision is affirmed. Commissioners Witte and Wyszynski concur. Donald G. Miller, Chairperson Joy L. Witte James Edward Wyszynski, Jr. Commissioners 4

5 CECILE M. REDER, PLAINTIFF, S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET # R.C. HENDRICK & SONS, INCORPORATED AND MICHIGAN MUTUAL INSURANCE COMPANY, DEFENDANTS. This cause came before the Appellate Commission after remand to the Board of Magistrates for completion of the record. The Commission has considered the record, briefs of counsel, and Magistrate Lengauer s opinion after remand, and believes that Magistrate Whitehouse s decision should be affirmed. Therefore, IT IS ORDERED that the decision of Magistrate John R. Whitehouse, mailed July 1, 1993, is affirmed. Donald G. Miller, Chairperson Joy L. Witte James Edward Wyszynski, Jr. Commissioners 5