KATHY PANCONE V MONROE CHARTER TWP
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STATE OF MICHIGAN
COURT OF APPEALS
KATHY PANCONE,
UNPUBLISHED
August 15, 1997
Plaintiff-Appellee,
v
MONROE CHARTER TOWNSHIP and CITIZENS
INSURANCE COMPANY,
No. 189298
WCAC
LC No. 91-000531
Defendants-Appellants.
Before: Cavanagh, P.J., and Gage and D.A. Burress,* JJ.
PER CURIAM.
Defendant Monroe Charter Township appeals by leave granted a decision on remand by the
Worker’s Compensation Appellate Commission (WCAC) granting plaintiff Kathy Pancone a maximum
award of benefits. We affirm.
Plaintiff worked for defendant as its treasurer. Her office duties required both sitting and
standing. On September 16, 1988 plaintiff injured her back while lifting a box. Although she continued
to work, she was required to sit down more frequently.
Plaintiff left office on November 20, 1988, when her term expired. Earlier in the year plaintiff
had decided to forego running for reelection as treasurer and sought election to the position of township
clerk. She lost the primary race for that position.
Plaintiff sought worker’s compensation benefits. She contended that she continued to
experience severe back pain, that she often had to lie down for a time, that she could not sit for more
than fifteen minutes at a time, and that her activities were limited. The magistrate found that plaintiff’s
injury resulted in a limitation of her wage-earning capacity in work suitable to her training and
qualifications, and entered an open award of benefits. On the green sheet the magistrate checked the
box indicating a finding of total disability; however, in the opinion the magistrate indicated that pursuant
* Circuit judge, sitting on the Court of Appeals by assignment.
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to MCL 418.361(1); MSA 17.237(361)(1), which addresses partial disability, defendant was to have
credit for wages earned.
The WCAC concluded that the magistrate’s reference to § 361(1) indicated that the magistrate
found that plaintiff retained some residual wage-earning capacity. The WCAC remanded the matter for
reassignment with instructions that the new magistrate was to calculate, in dollars and cents, plaintiff’s
residual wage-earning capacity. The WCAC retained jurisdiction.
In a decision on remand, the magistrate concluded that plaintiff retained no residual wage
earning capacity. The magistrate indicated that he was unaware of any employment opportunity that
would allow an employee to sit, stand, or lie down as necessary.
The WCAC vacated the magistrate’s decision on remand and modified the original decision.
Relying on medical testimony that plaintiff could perform her former duties, the WCAC found that
plaintiff was precluded from receiving benefits because she could earn the same wage after her injury as
she could before her injury.
Plaintiff sought leave to appeal to this Court (Docket No. 177305). We vacated the WCAC’s
decision and remanded for reconsideration in light of Sobotka v Chrysler Corp (After Remand), 447
Mich 1; 523 NW2d 454 (1994). In the order of remand, we stated that the WCAC could remand the
matter to a magistrate for the purpose of supplying a complete record if necessary. See MCL
418.861a(12); MSA 17.237(861a)(12).
The WCAC did not remand the matter to a magistrate. In its decision on remand, the WCAC
found that plaintiff was entitled to a maximum award. The WCAC relied on the following principles
gleaned from Sobotka. The employee need only show a link between wage loss and a work-related
injury. Once the employee has made such a showing, the factfinder may infer that the employee cannot
find a job due to the injury. If the factfinder is not so persuaded, other evidence regarding the link
between unemployment and the injury may be considered. The employer can introduce evidence to
refute the inference that can be made by the factfinder. This evidence must relate to real jobs in the real
world, and not to hypothetical jobs for which the employee’s ability to perform is nondescript. The
employee does not bear the burden of unfavorable economic conditions. If no jobs that the employee is
still capable of performing are available due to economic downturn, the employee is entitled to maximum
benefits, at least until economic conditions improve. If the employer produces evidence that real jobs
exist and that the employee could perform them, and the factfinder determines that lack of application,
refusal, or other factors caused the employee’s continued unemployment, then the factfinder is entitled
to find that the employee retains a post-injury wage-earning capacity.
Applying these principles to the instant case, the WCAC found that the only evidence
concerning a real job in the real world which plaintiff could perform was the job as defendant’s
treasurer. While some medical evidence indicated that plaintiff could perform clerical work if others
were tolerant of her condition, the WCAC found that such evidence did not meet the requirements of
Sobotka. The record did not show that clerical jobs that would allow plaintiff to sit, stand, or lie down
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as needed actually existed. Plaintiff was not unemployed due to malingering or an economic downturn.
The job that plaintiff was able to perform, treasurer for defendant, was not available to her; therefore,
she was entitled to maximum benefits.
Findings of fact made by a magistrate are conclusive on the WCAC if they are supported by
competent, material, and substantial evidence on the whole record. MCL 418.861a(3); MSA
17.237(861a)(3). Judicial review is of the findings of fact made by the WCAC, not those made by the
magistrate. The findings of fact made by the WCAC are conclusive if there is any competent evidence
in the record to support them. Holden v Ford Motor Co, 439 Mich 257, 263; 484 NW2d 227
(1992).
Initially, defendant argues that the WCAC erred by finding that plaintiff was entitled to an award
of maximum benefits. The WCAC found that while the job of treasurer was a real job in the real world,
and that plaintiff could perform the job, her situation was more similar to the economic layoff scenario
than circumstances in which an employee is unemployed due to malingering. Defendant emphasizes that
Sobotka does not hold that malingering is the only factor in determining whether a real job in the real
world is available. In this case, plaintiff left a job she was capable of performing.
We disagree. The WCAC previously found that plaintiff was capable of performing the job of
treasurer; therefore, the issue on remand was whether a real job in the real world that plaintiff was
capable of performing was available to her. In this case, plaintiff chose to not seek reelection to the
post of treasurer, and instead sought election to another post. Plaintiff lost the primary election for the
other post in August, 1988, prior to injuring her back in September, 1988. Plaintiff’s tenure in the
position of treasurer was limited prior to her injury. This is not a case in which plaintiff sustained an
injury, continued to work in a job within her capabilities, and then simply walked away from that job.
The job which plaintiff was capable of performing was unavailable to her. The WCAC properly applied
Sobotka and awarded maximum benefits.
Next, defendant argues that the WCAC erred by failing to remand this case for further
factfinding pursuant to § 861a(12). Defendant asserts that it showed that plaintiff retained the ability to
perform work within her qualifications and training. Specifically, it showed that plaintiff could perform
the job of treasurer and could do general clerical work. Defendant reasons that it could not have
anticipated the need to offer proofs regarding the availability of such clerical jobs because Sobotka had
not been decided at the time of the original trial in this case.
This issue is without merit. The proofs at the original trial established that plaintiff could perform
a clerical job if her needs to sit, stand, and lie down when necessary were accommodated. Defendant
presented no proofs that such jobs actually existed and were available to plaintiff. Had the proofs
shown that plaintiff was capable of performing clerical work without such restrictions, a remand would
have been appropriate. The WCAC applied its remand guides, as found in Whitaker v Whitaker
Electric Co, 1995 WCACO 256, consistently in this case.
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Affirmed.
/s/ Mark J. Cavanagh
/s/ Daniel A. Burress
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