Opinion
Docket No. 54173.
Decided December 16, 1981.
Rappleye, Wilkins Arcaro, for plaintiff.
Cholette, Perkins Buchanan (by Edward D. Wells), for defendant.
The plaintiff, Opal C. Hamlin, was injured from exposure to a toxic chemical used in making glue. This chemical, known as Toluene Diisocyanate (TDI), was used in the manufacturing process of Michigan Seat Company's plant where plaintiff was employed. The result was that plaintiff suffered a sensitized condition which caused severe reaction from even small exposure. The company offered plaintiff work with Jackson Canvas Company, a wholly owned subsidiary of the defendant, at benefits equal to those which she had been receiving at defendant's plant. TDI was not used at the Jackson Canvas Company plant. The plaintiff refused the proffered employment solely because Jackson Canvas Company was not a union plant. It was shown that plaintiff was capable of performing the proffered work. Since her refusal to accept the proffered work was unrelated to her capacity to perform, she was denied benefits from the date of her refusal. Kolenko v United States Rubber Products, Inc, 285 Mich. 159, 162; 280 N.W. 148 (1938), Frammolino v Richmond Products Co, 79 Mich. App. 18; 260 N.W.2d 908 (1977). She appealed to the Workers' Compensation Appeal Board (WCAB), which denied her benefits because she refused work which she was capable of performing. She has appealed to this Court.
In absence of fraud, this Court's review of the WCAB decision is limited to the issue of whether the board applied the correct legal standard. Mansfield v Enterprise Brass Works Corp, 97 Mich. App. 736, 740; 295 N.W.2d 851 (1980).
At issue is the "favored work" doctrine. This is a doctrine allowing the defendant-employer to mitigate weekly benefits by offering a disabled employee work which he is capable of performing in a disabled state. The result is that the disability award is reduced by the present and future earning capacity of the employee so employed in the "favored work".
The set-off provision reads as follows:
"The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury." MCL 418.371(1); MSA 17.237(371)(1). (Emphasis added.)
The "favored work" doctrine developed to fill the obvious statutory hole left by this section. See Sims v R D Brooks, Inc, 389 Mich. 91, 94; 204 N.W.2d 139 (1973).
In order to invoke the doctrine, the defendant-employer has the burden of proving that a specific and definite offer of employment was made and that the employee was capable of performing the work offered. Ayoub v Ford Motor Co, 101 Mich. App. 740, 745; 300 N.W.2d 508 (1980), Kolenko, supra, Sims, supra, 94. Once having met these criteria, a refusal by an employee to accept favored work for other than health reasons or a refusal to make a good-faith effort to perform the favored work will terminate benefits payable to the employee. Christiansen v Eaton, Yale Towne, Inc, 89 Mich. App. 440, 444; 280 N.W.2d 463 (1978), Brown v Premier Manufacturing Co, 77 Mich. App. 573, 577; 259 N.W.2d 143 (1977).
The Michigan Supreme Court has ruled that subsequent events, independent of the original injury, even though not the fault of the employer, will not justify the denial, reduction, or suspension of disability benefits because they cannot be attributed to the employee. Powell v Casco Nelmor Corp, 406 Mich. 332, 353; 279 N.W.2d 769 (1979), Todd v Hudson Motor Car Co, 328 Mich. 283, 286-287; 43 N.W.2d 854 (1950), Lynch v Briggs Manufacturing Co, 329 Mich. 168, 172; 45 N.W.2d 20 (1950).
Where independent, supervening events, unrelated to the employee's capacity to perform, are involved, a present earning capacity of the employee must be established. MCL 418.371(1); MSA 17.237(371)(1). However, if the intervening event is one related to the employee's capacity to perform, the employee is entitled to restitution of his benefits. Powell, supra, 354.
The general rule is that an injured employee who refuses an offer of employment for "favored work" which the employee is capable of performing is not entitled to workers' compensation benefits. Bower v Whitehall Leather Co, 93 Mich. App. 257; 286 N.W.2d 877 (1979). A unilateral decision to refrain from employment for reasons other than capability of performance may terminate benefits under the Worker's Disability Compensation Act. Frammolino, supra, 27.
Had plaintiff Hamlin accepted the offered employment with Jackson Canvas Company, she then could have determined the difference, if any, between her present earning capacity and her pre-injury earning capacity. This course of action would not have barred a reinstitution of benefits had she been fired or laid off unreasonably. Pigue v General Motors Corp, 317 Mich. 311; 26 N.W.2d 900 (1947).
Nor does this result exceed a state's authority to regulate an employee's rights under § 7 of the National Labor Relations Act, 29 U.S.C. § 157. Although such authority to regulate is very limited under the act, the fair and efficient administration of Michigan's workers' compensation system is of such local concern as to take such action outside of the act, absent a strong and compelling congressional mandate to preempt. See San Diego Building Trades Council v Garmon, 359 U.S. 236, 244; 79 S Ct 773; 3 L Ed 2d 775 (1959), Silkwood v Kerr-McGee Corp, 637 F.2d 743, 746 (CA 10, 1980), cert den ___ US ___; 102 S Ct 132; 70 L Ed 2d 9 (1981). No such mandate exists.
For the reasons stated in this opinion, we find that the Workers' Compensation Appeal Board applied the correct legal standard to the case at bar and that sufficient facts exist to support the result. Const 1963, art 6, § 28; MCL 418.861; MSA 17.237(861).
Affirmed. Costs to appellees.