ARLENE A RUSSELL V WHIRLPOOL FINANCIAL CORP
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STATE OF MICHIGAN
COURT OF APPEALS
ARLENE A. RUSSELL,
UNPUBLISHED
Plaintiff-Appellant,
v
WHIRLPOOL FINANCIAL CORPORATION and
GALLAGHER BASSET,
No. 191892
WCAC
LC No. 94-000955
Defendants-Appellees.
Before: Saad, P.J., and Neff and Reilly, JJ.
NEFF, J. (dissenting).
I respectfully dissent and would reverse and remand for reinstatement of the magistrate’s award
of benefits.
I
The majority opinion of this Court and the WCAC committed legal error in applying the
principles of favored work to the facts of this case, or more accurately, in failing to apply well
established rules of favored work to the facts of this case.
The majority opinion casts this case as one of discharge for misconduct, when it is nothing more
or less than an unreasonable refusal on the part of plaintiff to continue favored work. Under those
circumstances, plaintiff is entitled to benefits because she can demonstrate that she suffers a work
related disability and there has been no offer of favored work within her ability to perform.
Accordingly, her refusal of favored work is no longer unreasonable. Derr v Murphy Motor Freight
Lines, 452 Mich 375, 387, 392; 550 NW2d 759 (1996); Nederhood v Cadillac Malleable Iron Co.,
445 Mich 234, 241, 248; 518 NW2d 390 (1994); McJunkin v Cellasto Plastics Corp, ___ Mich
App ___; ___ NW2d ___ [Docket No. 198732, issued 10/31/97].
There is no dispute that plaintiff was attempting to perform favored work when she began to
experience additional physical problems. There is a dispute whether the additional problems were
work-related. The magistrate determined that plaintiff’s disability was work-related although she left
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work for a combination of work-related and non-work-related physical problems. Plaintiff’s lone
failure was in leaving work when she could not continue and not providing her employer with the proper
medical documentation of her inability to continue the favored work until a month later.
In setting aside the magistrate’s award of benefits after the disqualification period the
WCAC majority operated within the wrong legal framework, an error the majority opinion here
perpetuates. In Nederhood our Supreme Court clearly held that dismissal from favored work for
misconduct (in that case a strike) will not serve as a permanent bar to receipt of workers’ compensation
benefits, but only as a suspension. The Supreme Court in Derr reconfirmed this concept. Even if
plaintiff’s conduct in leaving work without a medical excuse can be construed as misconduct she was
only subject to a suspension of her benefits until she remedied the omission a month later. The attempt
to distinguish controlling precedent is not persuasive: Derr and Nederhood mandate that benefits be
reinstated. Plaintiff left work at least in part because of continuing work-related problems and provided
medical proof within a month when her doctor supported her claim that she could no longer perform the
offered favored work. She is subject only to suspension of benefits, not permanent loss of them.
II
In addition to the legal error, I find that the WCAC also exceeded its standard of review in
rejecting the factual findings of the magistrate. As noted in the WCAC opinion, the magistrate’s opinion
is very thorough (running to 18 pages) and reached the conclusion that plaintiff left work for both work
related and non-work-related reasons. Her testimony and medical records supported this conclusion:
she told her physician that she was missing work because of hand problems (her underlying disability is
based on carpal tunnel syndrome for which she has had surgery) and gastrointestinal problems related to
work-place stress. While the WCAC reviewed plaintiff’s testimony at length, its opinion failed to
mention her statements that her left hand was worsening and that her other physical problems were
related to stress on the job. Plaintiff’s testimony leaves the undeniable conclusion that her problems
were at least partially caused by her job and, as a result, the conclusion of the WCAC to the contrary is
not supported by competent evidence.
I would reverse and reinstate the magistrate’s award of benefits.
/s/ Janet T. Neff
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