Summary
In Stallworth, supra, the plaintiff returned to his employment with the defendant after suffering a work-related injury, but was unable to perform his old job.
Summary of this case from Jones v. Auto SpecialtiesOpinion
Docket No. 77618.
Decided August 6, 1985. Leave to appeal denied, 424 Mich ___.
Kelman, Loria, Downing, Schneider Simpson (by James P. Harvey), for plaintiff. Lacey Jones (by Gerald M. Marcinkoski), for defendant.
Defendant appeals by leave granted from the award of benefits granted plaintiff by the Workers' Compensation Appeal Board.
Plaintiff was injured on February 24, 1978, while working at the defendant's McGraw Glass Plant as a glass seamer. He sustained a laceration of his right wrist resulting in injury to his tendons, radial artery and median nerve. Defendant began voluntarily paying plaintiff full compensation.
On January 30, 1979, Dr. Ned Winkleman of the division of plastic surgery at Henry Ford Hospital indicated that plaintiff could return to light work with certain restrictions. Plaintiff reported to work on February 29, 1979, but was apparently unable to perform his old job. However, defendant terminated plaintiff's workers' compensation benefits on the basis of Dr. Winkleman's report and gave plaintiff an indefinite layoff effective February 19, 1979.
On September 10, 1979, plaintiff secured work as custodian of the Venoy Continuing Care Center. His duties included mopping and buffing the floors and general maintenance, for which he received an average weekly wage of $116.25. Plaintiff claimed that the buffing was difficult because of his hand injury, but conceded that he would have continued working at the center if he had not been fired on January 15, 1980, for watching television during working hours.
Plaintiff was unable to find employment after his discharge from the center.
The appeal board found, and defendant does not dispute, "that because of his work-related injury, plaintiff was no longer able to compete with the able-bodied in the field of common labor, where the injury occurred, to the extent that he could prior to the injury". Defendant does dispute, however, the board's conclusion that plaintiff's job at the Venoy Continuing Care Center did not establish a post-injury wage-earning capacity.
The majority opinion of the appeal board states:
"As to plaintiff, the work that he performed at Venoy Continuing Care Center was, at best, favored work as to him. Favored employment in a regularly recognized job involving less physical exertion does not establish, as a matter of law, an unimpaired wage earning capacity in common labor. Evans v United States Rubber Co, 379 Mich. 457; 152 N.W.2d 641 (1967)."
We find that the board's conclusion involves application of an incorrect legal standard and, hence, presents a reviewable question of law. Const 1963, art 6, § 28; MCL 418.861; MSA 17.237(861).
Typically, "favored work" is used to describe work offered by the employer to a disabled employee which accommodates the employee's limitations. Ayoub v Ford Motor Co, 101 Mich. App. 740; 300 N.W.2d 508 (1980), lv den 411 Mich. 871 (1981). So it was in Evans, supra, which involved only a single employer. See also Bower v Whitehall Leather Co, 412 Mich. 172; 312 N.W.2d 640 (1981); Powell v Casco Nelmor Corp, 406 Mich. 332; 279 N.W.2d 769 (1979); Markey v SS Peter Paul's Parish, 281 Mich. 292; 274 N.W. 797 (1937); Porter v Ford Motor Co, 109 Mich. App. 728; 311 N.W.2d 458 (1981); Tury v General Motors Corp, 80 Mich. App. 379 ; 264 N.W.2d 2 (1978), lv den 402 Mich. 908 (1978). We find that the appeal board's application of the "favored work" doctrine to work given by a second employer is unprecedented and not in keeping with the rationale for the doctrine stated in Bower, supra, p 182:
"The favored-work doctrine is a purely judicial creation. Favored, or light, work can be loosely defined as less strenuous post-injury work. Wages from favored work may be used as a setoff against an employer's compensation liability, MCL 418.361(1); MSA 17.237(361)(1), but favored-work wages do not establish an earning capacity, and when such wages cease, they neither suspend nor bar compensation. Powell v Casco Nelmor Corp, 406 Mich. 332; 279 N.W.2d 769 (1979).
"The primary purpose of the doctrine is that of mitigation. It allows an employer to reduce or completely eliminate compensation payments by providing work within the injured employee's physical capacity. At the same time, it encourages the employee to return to productive employment rather than to remain idle, thus also serving a rehabilitative function. Pulley v Detroit Engineering Machine Co, 378 Mich. 418; 145 N.W.2d 40 (1966)."
It seems apparent that a second employer would have no reason to offer favored work since it would not be liable for the compensation payments; mitigation would not be an objective in offering work. Accordingly, we hold that the appeal board erred as a matter of law in concluding that plaintiff's job with a second employer was favored work.
It follows that the board's determination that plaintiff, as a matter of law, had not established a post-injury wage-earning capacity is also legally erroneous. Since his post-injury wages were not from favored work, plaintiff's wage-earning capacity is a question of fact. Frammolino v Richmond Products Co, 79 Mich. App. 18, 26; 260 N.W.2d 908 (1977). Accordingly, we remand to the appeal board for a determination of plaintiff's wage-earning capacity.
We decline plaintiff's request for a supplement for total disability while unemployed. Plaintiff did not raise this issue by claim for review before the appeal board, Nelson v General Motors Corp, 122 Mich. App. 499; 332 N.W.2d 514 (1983), lv den 417 Mich. 1098 (1983), nor by cross-appeal to this Court, Bush v Oscoda Area Schools, 109 Mich. App. 373, 383; 311 N.W.2d 788 (1981).
Remanded. We retain jurisdiction.