S T A T E O F M I C H I G A N WORKER'S COMPENSATION APPELLATE COMMISSION V DOCKET #

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1 GARY ROSS, PLAINTIFF, 1999 ACO #664 S T A T E O F M I C H I G A N WORKER'S COMPENSATION APPELLATE COMMISSION V DOCKET # CRYSTAL FLASH AND RELIANCE NATIONAL INDEMNITY, DEFENDANTS. APPEAL FROM MAGISTRATE WHEATON. MICHELENE B. PATTEE AND KENNETH R. OOSTERHOUSE FOR PLAINTIFF, KAREN E. GROENHOUT AND CHARLES GRZANKA FOR DEFENDANTS. PRZYBYLO, COMMISSIONER OPINION Defendant appeals and plaintiff cross-appeals the decision of Magistrate Winston Wheaton, mailed September 23, 1998, granting plaintiff benefits for his back injury, with the exception of a period of unreasonable refusal of reasonable employment. On appeal, defendant contends that its obligation to pay benefits ended after it extended an offer of reasonable employment for a reasonable time. Defendant also argues that plaintiff's unreasonable refusal of reasonable employment could only end after plaintiff ended his refusal. Rejecting those arguments, plaintiff additionally responds that, since he reasonable believed that defendant withdrew its offer, his refusal was reasonable from its initial date. We disagree with all the arguments and affirm. The magistrate carefully outlined the testimony pertinent to his conclusions concerning reasonable employment and reasonable refusal. He wrote the following: The next issue involves Plaintiff s refusal of Defendant s light duty work offer of May 28, 1997, contained in Plaintiff s Exhibit # 1. The job description does not violate any of Plaintiff s medical restrictions, and he was allowed flexible hours so that he could attend physical therapy, as recommended by Dr. Ives. Plaintiff was advised in that letter, that Dr. Ives (as he testified) would allow him to perform that work immediately. Plaintiff was directed to report for that work on June 2, Plaintiff s reason for not accepting that work is unpersuasive. When he was asked, at trial, why he did not accept that job, he paused for a very long time (seemingly searching for a favorable answer), and then responded that he had not been released by Dr. Gracias. A reasonable delay to secure Dr. Gracias opinion on his ability to do

2 that job would not have been an unreasonable action. There is no evidence that Plaintiff made any attempt to do that. Plaintiff testified that he knew what the job involved, and agreed that it was a pretty light job. I find, consequently, that Plaintiff unreasonably refused an offer of reasonable employment. His entitlement to wage loss benefits has been forfeited as of June 2, The issue does not end there. On October 15, 1997, according to Defendant s Exhibit #A, Melinda A. Dellehay (identified as the authorized employer representative ) sent Plaintiff a conversion form related to his Prudential group life insurance. On that form, it stated: Date of termination of employment - September 30, 1997". Based on that document, Plaintiff believed (a reasonab[le] interpretation, in my opinion) that his employment has been terminated. It was not until Plaintiff s wife contacted Sharon, regarding Plaintiffs profit sharing, on December 8, 1997, that Plaintiff learned that he had not actually been terminated. A withdrawal of an offer of reasonable employment triggers an obligation to resume benefits. Termination is the ultimate withdrawal. Plai[ntiff] entertained a reasonable belief, afer he received Defendant s Exhibit #A, up to December 8, 1997, that he had been terminated. His refusal to report to work during a time he reasonably believed he was terminated cannot be construed as an unreasonable refus[a]l of reasonable employment. Therefore, benefits have been ordered to resume on October 16, As was observed in Ayoub v Ford Motor Company, 101 Mich App 740 (1980), good faith is a two-way street. Plaintiff was obliged, as soon as he learned that he was not terminated, to end his refusal and report for work. In point of fact, his refusal ended a few days earlier. Plaintiff offered, through his attorney (by letter dated 12/4/97 - Plaintiff s Exhibit # 2), to return and perform the pick-up job (which refers to driving a pick-up in Plaintiff s Exhibit #1). That offer was communicated directly to Defendant s attorney, who has been representing them throughout this litigation. I construe that as a specific offer to return to work. There is no evidence that Defendant responded to that offer. Plaintiff testified, at trial, that he is still willing to try the job outlined in Plaintiff s Exhibit #1. On cross examination, Plaintiff admitted that he had never specifically been told that the light duty job was withdrawn or that he could not go back to work. Once again, good faith is a two-way street, and reasonable communication is a bilateral obligation. There is no indication that Defendant ever responded to Plaintiff s December 4, 1997 offer to return to work. The opportunity existed, at trial, to clarify defendant s position. No clarification was forthcoming. I cannot, of a certainty, state whether the job is still available or not. Plaintiff has tendered himself for work twice, once through his attorney, and once at trial. Defendant has not responded. As one might say, in the vernacular, the ball is in Defendant s court. 2

3 All of these determinations were factual. They deserve our deference if they are conclusive upon us if supported by competent, material, and substantial evidence. MCL a(3). Recognizing the constraints of our review, defendant argues that, as a matter of law, its obligation to pay benefits ceased after its offer of reasonable employment remained open for a reasonable time. This proposition contradicts the correct legal standard. The proper standard requires suspension of benefits which lasts during the period of unreasonable refusal and never results in permanent forfeiture. Derr v Murphy Motors Freight Lines, 452 Mich 375 (1996). Thus, the magistrate committed no error of law. In addition, defendant fails to recognize the duality of unreasonable refusals. Certainly the refusal may end when the employee communicates a willingness to return to work. Equally plausibly, the employee's refusal may become reasonable. In this case, the magistrate found that plaintiff's refusal became reasonable when he reasonably believed the offer expired. That determination is properly supported and cannot be disturbed MCL a(3). Similarly, plaintiff attempts to reargue the magistrate's factual determination that plaintiff's initial refusal was unreasonable. Plaintiff offers his version of when he reasonably believed that defendant rescinded its offer. Because we find the magistrate's choice reasonable and supported by the record as a whole, We must accept it. Therefore, we affirm. Commissioners Kent concurs. Gregory A. Przybylo James J. Kent Commissioners COMMISSIONER WYSZYNSKI, DISSENTING I respectfully dissent from the lead opinion to the extent it affirms the magistrate s decision to reinstate benefits on October 16, Although the magistrate terms Ross s interpretation of the October 15, 1997 correspondence from Crystal Flash as reasonable, I believe the magistrate erred factually. What would have been reasonable for Ross to do was to pick up the phone and call his employer to determine if, in fact, he was actually terminated. He certainly was willing and able to call, through his wife, the employer in December to inquire about his profit sharing at which time he was informed he was still employed by Crystal Flash. Upon finding this out, he immediately ended his unreasonable refusal. 3

4 Under the circumstances, I would modify the magistrate s order to reflect a benefits resumption date of December 4, 1997, the date Ross s lawyer informed Crystal Flash of his willingness to return to the reasonable employment. James Edward Wyszynski, Jr. Commissioner 4

5 GARY ROSS, PLAINTIFF, S T A T E O F M I C H I G A N WORKER'S COMPENSATION APPELLATE COMMISSION V DOCKET # CRYSTAL FLASH AND RELIANCE NATIONAL INDEMNITY, DEFENDANTS. This cause came before the Appellate Commission on appeal by defendant and cross-appeal by plaintiff from the decision of Magistrate Winston A. Wheaton, mailed September 23, 1998, granting plaintiff benefits. The Commission has considered the record and briefs of counsel, and believes that the magistrate's decision should be affirmed. Therefore, IT IS ORDERED that the decision of the magistrate is affirmed. Gregory A. Przybylo James J. Kent Commissioners