RANDY WOODMAN V MEIJER COMPANIES LTD INCORPORATED
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STATE OF MICHIGAN
COURT OF APPEALS
RANDY WOODMAN,
FOR PUBLICATION
April 9, 2002
9:05 a.m.
Plaintiff-Appellee,
v
MEIJER COMPANIES LTD, INCORPORATED,
Defendant-Appellant.
No. 231133
WCAC
LC No. 99-000523
Updated Copy
July 19, 2002
Before: O'Connell, P.J., and White and Cooper, JJ.
PER CURIAM.
Defendant appeals by leave granted from the October 30, 2000, order of the Worker's
Compensation Appellate Commission (WCAC) that affirmed the magistrate's open award of
disability benefits. We affirm.
On January 22, 1997, plaintiff sustained a crushing injury during the course of his
employment when his right hand became caught between two bottle carts. Within two weeks of
his injury, plaintiff stopped working. He has undergone four surgeries on his hand.
Additionally, he has experienced depression, anxiety, and panic attacks since his accident.
According to plaintiff 's testimony before the magistrate, his panic attacks are triggered whenever
he hears anyone mention Meijer or he sees a Meijer logo. He takes antianxiety and
antidepression medications. He has also undergone psychiatric hospitalization.
Plaintiff commenced the instant worker's compensation claim, alleging a disability based
on fractured bones in his right hand, as well as depression. In a written opinion dated September
29, 1999, the magistrate concluded that plaintiff suffered from a compensable mental disability
arising from his physical injury because he suffers from panic attacks whenever is he exposed to
anything associated with Meijer. The magistrate further found that plaintiff cannot return to
work at Meijer because of his "substantial feelings of anxiety relative to Meijer." The magistrate
also found that this mental disability arose from the actual events of employment that occurred
on January 22, 1997, and that work events significantly contributed to plaintiff 's mental
disability.
The magistrate also found as a matter of fact that plaintiff 's mental disability provided
him with reasonable cause for refusing defendant's bona fide offers of reasonable employment.
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Finally, the magistrate concluded that plaintiff 's disability benefits should be reduced on the
basis of a work-avoidance theory. Specifically, the magistrate reasoned as follows:
The final issue in this case is whether the plaintiff 's entitlement to wage
loss benefits should be reduced on the theory of work avoidance. Under Haske [v
Transport Leasing, Inc, Indiana, 455 Mich 628; 566 NW2d 896 (1997)], plaintiff
must establish a causal link between work injury and actual wage loss. Defendant
may refute the causal link by showing that plaintiff is avoiding work or actual
wages. Based on the above analysis, I find that the plaintiff initially established a
causal link between work injury and actual wage loss. However, I also find that
the defendant presented evidence which severed the causal link as of the date of
trial based on the theory of work avoidance.
In arriving at this opinion, I find plaintiff 's claim that he cannot return to
work at Meijer credible. However, I find plaintiff 's claim that he cannot return to
work with another employer is not credible. Plaintiff has no expert testimony
which supports his position that he cannot return to work with another employer.
Moreover, the plaintiff testified that his panic attacks can be controlled with
medication. These factors suggest that the plaintiff is capable of returning to
employment, except at Meijer.
My finding that the plaintiff is capable of returning to work with another
employer, coupled with the evidence provided by defendant's vocational expert,
Ms. Davis, establishes that the plaintiff is avoiding work and/or actual wages. I
find that the plaintiff can return to work within the restrictions imposed by Dr.
Burke. The plaintiff and his attorney received Ms. Davis's analysis regarding
work available within the plaintiff 's restrictions from Attorney Beidelman in early
September. There were several jobs available to the plaintiff, within his
restrictions, located within a reasonable distance of his residence. Despite having
this information for at least two weeks prior to the trial, plaintiff failed to followup on any of these job opportunities. I find that since plaintiff was capable of
performing these jobs, had adequate time to look into employment opportunities,
yet failed to do so, establishes that the plaintiff was avoiding work as of the date
of trial, September 20, 1999. Therefore, I find that the defendant is entitled to a
reduction of wage loss benefits as of the trial date. See Mayse v Wirt Transport
Co, 1997 ACO #528.
The magistrate further found that work paying $7 to $9 an hour was available to plaintiff,
and therefore reduced his award of benefits using an average of $8 an hour. Specifically, the
magistrate found that plaintiff was avoiding $320 a week in wages, and therefore reduced
plaintiff 's benefits accordingly.
Defendant subsequently appealed to the WCAC, arguing that plaintiff 's work avoidance
required a total suspension of benefits. Plaintiff cross appealed, arguing that the magistrate's
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determination that he was avoiding work was not supported by the record.1 The WCAC affirmed
the magistrate's conclusion that plaintiff 's work avoidance required a reduction, and not a
complete suspension, of benefits, opining:
Defendant [argues] plaintiff 's weekly benefits should be suspended
altogether. Defendant maintains that its proofs regarding work avoidance go "to
entitlement, not rate." Haske, [defendant] states, at footnote 38, equates work
avoidance with [MCL 418.301(5)(a)] which says that refusing a bona fide offer of
reasonable employment results in suspension, not reduction, of benefits. The
footnote in Haske reads in part:
"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. . . . However, where the employer
chooses to produce evidence regarding the availability of specific employment,
such evidence is admissible solely to refute the causal connection."
Defendant adds that this rule is in accordance with public policy: "It is consistent
with the fact that the statute pays partial benefits to those who actually perform
work for lesser wages is [sic] entitled to differential benefits, but denies all wage
loss benefits to those who refuse lesser paying work."
We read Haske differently than does defendant. There were no actual
offers of employment in Haske, nor was there a demonstration of reasonable
employment which either plaintiff was avoiding. We observe that footnote 38
continues by adding this comment, "The result under subsection 301(5)(a), when
an employee refuses a reasonable offer of work, is to deny benefits." Mayse, just
as the instant case, does not concern any [MCL 418.]301(5)(a) actual offer of
employment. Rather, the statutory construction at issue is of [MCL 418.]301(4);
Magistrate Quist was satisfied with defendant Meijer's proofs that there were
available jobs that suited plaintiff 's restrictions, which plaintiff was capable of
performing. Mayse recognizes this dichotomy: refusing an actual offer of
reasonable employment [under] (301(5)) carries a greater penalty than failing in
general to seek reasonable employment (301(4)).
The WCAC also rejected defendant's argument that the magistrate erroneously
determined that plaintiff 's mental disability arose out of and in the course of employment.
Finally, the WCAC rejected defendant's argument that the magistrate misapplied the significantcontribution component of the test enunciated in Gardner v Van Buren Public Schools, 445 Mich
23, 48-49; 517 NW2d 1 (1994). This Court granted defendant's application for leave to appeal in
an order entered May 24, 2001.
1
The WCAC affirmed the magistrate's finding that plaintiff was avoiding work. Plaintiff has not
cross appealed from the WCAC's decision.
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Our review in worker's compensation cases is limited. Maxwell v Procter & Gamble,
188 Mich App 260, 265; 468 NW2d 921 (1991). "Our review of the WCAC's findings of fact is
extremely deferential," George v Burlington Coat Factory Warehouse of Southfield (On
Remand), 250 Mich App 83; ___ NW2d ___ (2002), and in the absence of fraud, we must accept
the WCAC's findings of fact as conclusive if there is any competent evidence in the record to
support them. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 701; 614 NW2d 607
(2000). However, questions of law in a worker's compensation case are reviewed de novo and
the WCAC's decision may be reversed if based on erroneous legal reasoning or the wrong legal
framework. DiBenedetto v West Shore Hosp, 461 Mich 394, 401-402; 605 NW2d 300 (2000);
MCL 418.861a(14).
On appeal to this Court, defendant first argues that the magistrate's determination that
plaintiff was avoiding available employment should have resulted in the total suspension of
wage-loss benefits. We disagree.
In rejecting defendant's argument, the magistrate and the WCAC relied on the WCAC's
earlier decision in Mayse v Wirt Transport Co, 1997 Mich ACO 528. In Mayse, the magistrate
found that the employee was able to work within the restrictions placed on him by his treating
neurosurgeon and that the employee was avoiding actual wages. Id. Specifically, the employee
refused to contact potential employers outside his hometown of Shelby, Michigan, if it required a
long-distance telephone call. Id. The employee also refused to travel to his rehabilitation
counselor's office to make job inquiries. Id. As a result, the magistrate in Mayse determined the
employee's postinjury earning capacity and reduced his benefits by the amount of actual wages
he was avoiding. Id.
On appeal the WCAC affirmed, concluding that an employee who avoids work breaks the
causal link between the work-related injury and the reduction in earning capacity. Id. In
reaching this conclusion, the WCAC quoted the following language from Haske, supra at 658659: "Unemployment or reduced wages must be causally linked to work-related injury, and a
plaintiff may not reject actual wages reasonably offered or avoid or refuse actual wages."
In Haske, supra at 643, our Supreme Court undertook an analysis of how an individual
could demonstrate a compensable disability as contemplated by the Worker's Disability
Compensation Act (WDCA), MCL 418.101 et seq. Specifically, our Supreme Court reviewed
the language of MCL 418.301(4), which provides: "As used in this chapter, "disability" means a
limitation of an employee's wage earning capacity in work suitable to his or her qualifications
and training resulting from a personal injury or work related disease. The establishment of
disability does not create a presumption of wage loss."
Reviewing the above statutory language, the Haske Court ruled that to prove a
compensable disability, an applicant must be able to prove wage loss. Haske, supra at 634.
Wage loss is proved by establishing a reduction in earning capacity. Id. at 654.
To prove wage loss, an employee demonstrates that, as a consequence of
work-related injury or disease, he has suffered a reduction in his earning capacity.
The amount of benefits is based on the employee's actual wage loss.
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In application, these basic principles operate to require that an employee
must establish (1) a work-related injury, (2) subsequent loss in actual wages, and
(3) a causal link between the two. Proof of the three elements will establish that
an employee can no longer perform at least a single job within his qualifications
and training, thus satisfying the first sentence of subsection 301(4), and that he
has suffered a loss in wages, satisfying the second sentence of subsection 301(4).
Consistent with the language of subsection 301(4) proofs sufficient to permit the
magistrate to find that the subsequent wage loss is attributable to the work-related
injury establish a compensable disability. Absence of residual earning capacity is
not part of the threshold definition of disability. [Haske, supra at 634-635
(emphasis in original).]
The Haske Court went on to conclude that where "the employee has carried his burden of
proving wage loss, he will, as a practical matter, have proven that he is unable to perform a
single job within his qualifications and training, and therefore, that he is disabled." Id. at 662.
Further, the Court noted that the plaintiff employee is only required to show that there is a direct
link between lost wages and the work-related injury, and that a plaintiff need not demonstrate an
absence of residual earning capacity. Id. at 661. "Whether disability is total or partial, actual
loss of wages causally linked to a work-related injury is loss of wage-earning capacity" as
contemplated by MCL 418.301(4). Haske, supra at 662.
At issue in the present case is the Haske Court's following statement, by way of footnote:
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. [Sobotka v Chrysler Corp (After
Remand), 447 Mich 1,] 22, and 26, n 26; 523 NW2d 454 (1994) (Boyle, J., lead
opinion) (relying on 1C Larson, Workmen's Compensation, § 57.12[e], p 10-56),
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.
Where the plaintiff is unemployed and the magistrate credits a link
between disability and actual lost wages, evidence of residual earning capacity is
not probative of any material issue.
The result under subsection 301(5)(a) when an employee refuses a
reasonable offer of work, is to deny benefits. Cf. Gillman, The rise and fall of
reasonableness: Favored employment in Michigan workers' compensation, 1
Cooley L R 177, 208 (1982) (citing case law before the enactment of subsection
301[5][a] reducing benefits where an employee refused favored work within his
capacity). [Haske, supra at 662, n 38.]
Moreover, Justice Riley, in a partial concurrence and dissent, expounded on Justice
Boyle's reasoning in Haske by way of footnote:
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Therefore, if the employee did not seek out the lesser-paying positions
because of malingering, and was unemployed as a consequence, the employee
would only receive worker's compensation for the reduction in his earning
capacity that he suffered because of his injury, but he would not recover the
remaining lesser wage that he could have earned had he sought work. See, e.g.,
Williams v Blitz Construction Co, 1995 Mich ACO 1169 (reducing an award for
an unemployed, injured claimant from $250 a week to $100 a week where there
was a lesser paying job actually available within the claimant's qualifications and
training that he was not performing). The majority appears to reject this
possibility by requiring that either this employee receive his full previous wage or
nothing. See n 38 on p 662 ("Where the plaintiff is unemployed and the
magistrate credits a link between disability and actual wage loss, evidence of
residual earning capacity is not probative of any material issue"). This is not, in
my opinion, consistent with the act's requirement that the employee demonstrate
wage loss by proving a reduction in earning capacity. [Haske, supra at 684-685,
n 8.]
In Haske, our Supreme Court did not address the precise question defendant raises here,
namely, whether a plaintiff employee's work avoidance must translate into a suspension of wageloss benefits.2 Indeed, the Haske Court's comments appeared confined to the question whether a
plaintiff employee had demonstrated the requisite causal link between a work-related injury and
wage loss to the extent that a compensable disability was proved.
However, several panels of the WCAC have applied Mayse and Haske to support a
conclusion that a partial rate of compensation may be available on a showing that a claimant is
avoiding work. See Welch, Worker's Compensation in Michigan: Law & Practice, § 8.2; Korson
v Gray & Co, 2000 Mich ACO 542 (Commissioner Kent concurring); Reder v RC Hendrick &
Sons, Inc, 1998 Mich ACO 290. The WCAC relied on Mayse to conclude that plaintiff 's wageloss benefits should not be completely suspended. Defendant contends that this was error. We
2
In the present appeal, plaintiff contends in his appellate brief that the magistrate and the WCAC
"properly reduced . . . Plaintiff 's right to continuing weekly benefits, consistent with the
Commission's own decisions on point." Thus, the precise issue whether the work-avoidance
doctrine developed by the WCAC is viable and has a proper basis in Michigan's worker's
compensation jurisprudence is not before us. However, we note that there are conflicting
opinions in the WCAC regarding whether benefits should be suspended or reduced on the basis
of work avoidance, depending on the factual circumstances of each case. For instance, in
Shrider v Michigan Motor Exchange, 2000 Mich ACO 504, a split two-to-one panel of the
WCAC concluded that a claimant who avoided work was not entitled to an award of benefits
where a causal link did not exist between the claimant's wage loss and the work-related injury.
Commissioner Kent dissented from the majority's holding. See also Pacheo v Sam's Club, 2001
Mich ACO 245 (recognizing that "an employee has an obligation to mitigate the employer's loss
from a work injury. As part of this obligation an employee may not engage in conduct which
forecloses an employment offer[,]" or the employee will be denied benefits for the duration of
the refusal); Rich v Cold Springs Farm, Inc, 2001 Mich ACO 134.
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disagree and hold that the WCAC did not commit an error in legal reasoning to the extent that
reversal is warranted. Indeed, the WCAC correctly observed that this case implicates MCL
418.301(4), rather than MCL 418.301(5)(a).3 The latter statutory provision proscribes an award
of benefits where a claimant "refuses" a bona fide offer of reasonable employment without good
and reasonable cause during the period of such refusal. In the instant case, the record is devoid
of any evidence of a bona fide offer of reasonable employment by another employer or of a
refusal by plaintiff of any such offer. Under such circumstances, we cannot conclude that the
WCAC's decision to award partially reduced benefits is inappropriate where there has not been
an overt refusal of reasonable employment, but instead only a failure to seek reasonable
employment. We defer to the WCAC's expertise because we are not persuaded that its decision
was based on erroneous legal reasoning. Mudel, supra at 703; Jones-Jennings v Hutzel Hosp
(On Remand), 223 Mich App 94, 105; 565 NW2d 680 (1997). On the basis of the foregoing, we
reject defendant's claim that plaintiff 's wage-loss benefits should have been completely
suspended.
Defendant next argues that the WCAC erred as a matter of law in affirming what
defendant characterizes as the magistrate's misapplication of the significant-contribution standard
of Gardner, supra. According to defendant, plaintiff 's psychological disability is compensable
only if the work contribution to this disability was greater than the nonwork contribution. We
reject defendant's interpretation of the standard.
MCL 418.301(2) provides in pertinent part: "Mental disabilities . . . shall be
compensable if contributed to or aggravated or accelerated by the employment in a significant
manner. Mental disabilities shall be compensable when arising out of actual events of
employment, not unfounded perceptions thereof."
To establish a compensable mental disability under the statute, a claimant must prove (1)
a mental disability, (2) which arises out of actual events of employment, not unfounded
perceptions thereof, and (3) that those events contributed to or aggravated the mental disability in
a significant manner. Gardner, supra at 52. To determine "whether specific events of
employment contribute[d] to, aggravate[d], or accelerate[d] a mental disability in a significant
manner, the factfinder must consider the totality of the occupational circumstances along with
3
MCL 418.301(5)(a) provides:
(5) 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.
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the totality of a claimant's mental health in general." Id. at 47. The Gardner Court further
explained:
The analysis must focus on whether actual events of employment affected
the mental health of the claimant in a significant manner. This analysis will, by
necessity, require a comparison of nonemployment and employment factors.
Once actual employment events have been shown to have occurred, the
significance of those events to the particular claimant must be judged against all
the circumstances to determine whether the resulting mental disability is
compensable. [Id.]
Defendant argues that for employment to have significantly contributed to or aggravated
or accelerated a mental disability, employment factors must outweigh nonemployment factors.
In other words, defendant claims that either occupational or nonoccupational factors, but not
both, may be deemed significant under MCL 418.301(2). We disagree.
As then Chief Justice Cavanagh explained in Gardner, supra at 46-47, the "significant
manner" requirement "forces a claimant to actually prove a significant factual causal connection
between the actual events of employment and the mental disability." The significant manner
requirement imposes a high standard of proof on the claimant. Id. at 47-48. We do not agree
with defendant's contention that the employment factors must necessarily outweigh other factors
to be deemed "significant." Because MCL 418.301(2) does not define the term "significant," we
may properly turn to the dictionary to ascertain its plain meaning. Ryant v Cleveland Twp, 239
Mich App 430, 434; 608 NW2d 101 (2000). The word "significant" is defined as "important;
[of] consequence." Random House Webster's College Dictionary (1992), p 1246. Further, "a" is
an indefinite article often used in the sense of "any" and applied to more than one individual
object. Allstate Ins Co v Freeman, 432 Mich 656, 698; 443 NW2d 734 (1989) (Riley, C.J.).
Accordingly, we are of the view that the phrase "a significant manner" in MCL 418.301(2)
means any important manner or any manner that is of consequence.
This definition conflicts with defendant's claim that the employment factors must make
more than a fifty percent contribution to the mental disability. Instead, the statutory language
indicates that it is sufficient that employment factors make an important or consequential
contribution to the mental illness. As our Supreme Court articulated in Gardner, supra at 50, the
relevant inquiry for the significant manner requirement has a "substantial subjective element,"
and focuses on whether, "[g]iven actual events and a particular claimant, with all the claimant's
preexisting mental frailties, can the actual events objectively be said to have contributed to,
aggravated, or accelerated the claimant's mental disability in a significant manner?" We are
satisfied that the magistrate and the WCAC correctly concluded that the pertinent employment
events bore a "significant relationship" to plaintiff 's ensuing mental disability. Zgnilec v
General Motors Corp (On Remand, After Remand), 239 Mich App 152, 156; 607 NW2d 755
(1999). Accordingly, the WCAC correctly applied the significant-contribution standard of
Gardner.
Finally, defendant seeks a remand for a factual determination whether plaintiff 's mental
disability arose out of and in the course of employment or whether it was due to brooding and
worrying over the effects of the injury. We are not persuaded that defendant is entitled to a
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remand. Indeed, defendant is correct that the mental disability must arise out of and in the
course of employment to be compensable. Corbett v Plymouth Twp, 453 Mich 522, 550-551;
556 NW2d 478 (1996). However, a review of the magistrate's opinion reveals that the magistrate
was aware of this rule and applied it. Because the magistrate found that the mental disability
arose out of plaintiff 's employment, defendant's argument lacks record support and the WCAC
did not err in rejecting defendant's appellate challenge.
Affirmed.
/s/ Peter D. O'Connell
/s/ Helene N. White
/s/ Jessica R. Cooper
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