McKISSACK v. COMPREHENSIVE HEALTH SERVICES OF DETROIT
Case Details
- Citation
- 447 Mich. 57
- Judge(s)
- Cavanagh, C.J., and Boyle and Mallett, JJ., concurred with Levin, J.; Griffin, J., concurred with Riley, J.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Michigan Supreme Court reversed the Court of Appeals and reinstated the Worker's Compensation Appeal Board's finding that the plaintiff sustained a continuing work-related disability to her left elbow that precluded her from performing her medical technologist job, entitling her to wage-loss benefits despite her resignation under pressure from her employer.
Excerpt
McKISSACK v COMPREHENSIVE HEALTH SERVICES OF DETROIT Docket No. 96458. Argued May 5, 1994 (Calendar No. 3). Decided August 30, 1994. Rehearing denied post, 1202. Clara McKissack sought worker’s compensation for injuries sustained in the course of her employment as a medical technologist with Comprehensive Health Services of Detroit. A hearing referee found that she sustained a work-related disability, but concluded that it was not a continuing disability because she wás able to return to her job. The Worker’s Compensation Appeal Board reversed, holding that she had a continuing disability because she was not able to perform her duties adequately, and that this had led her employer to become dissatisfied and demand her resignation. The Court of Appeals, Murphy, P.J., and Gribbs and Fitzgerald, JJ., reversed in an unpublished opinion per curiam (Docket No. 141512). The claimant appeals, limited to the question whether there was sufficient evidence to support the wcab’s finding of continuing disability. In an opinion by Justice Levin, joined by Chief Justice Cavanagh, and Justices Boyle and Mallett, the Supreme Court held: There was sufficient evidence to support the wcab’s finding that the claimant was suffering from a continuing disability. 1. There was evidence that the speed with which plaintiff could carry out her job duties was below the minimum acceptable by Comprehensive Health Services, contravening the statement by the Court of Appeals that the record was wholly void of such evidence. Further, evidence that the work was painful was properly considered by the wcab in determining that the plaintiff was disabled from performing it. Clearly there is a difference between pain resulting from illness or disease not caused or aggravated by the work or working conditions, and pain resulting from a work-related injury. Worker’s compensation benefits may not be awarded simply because a worker is unable by reason of pain to continue with the work if the cause of the pain is illness or disease not caused or aggravated by the work or working conditions, but if the wcab finds that pain is caused or aggravated by a work-related injury, and the worker cannot by reason of pain resulting from the injury continue to work, the worker can be found to be disabled and awarded benefits. 2. The Court of Appeals exceeded its authority in finding as fact that the plaintiff was not fired because of inability to keep pace with the demands of her employer. It is one thing for the Court of Appeals to find that there is insufficient evidence to support a finding of fact made by the wcab; the Court exceeds its authority when it makes its own findings of fact. The wcab found that Comprehensive Health Services had not shown to the satisfaction of the wcab that the plaintiff was asked to resign for a reason other than her inability to keep up with the work, an inability that the wcab found to have been caused by her work-related injury. 3. Although MCL 418.301(5)(a); MSA 17.237(301)(5)(a) provides that an employee is to be deemed voluntarily removed from the work force and no longer entitled to any wage-loss benefits during a period of a refusal of a bona fide offer of reasonable employment, that stricture is not applicable unless the employee refuses the employment without good and reasonable cause. Clearly an employee, such as the plaintiff, may be found by the wcab to have good and reasonable cause to refuse even a bona fide offer of reasonable employment where the employee has refused the employment or refused, by resigning, to continue in the employment because she was disabled from doing the work demanded by the employer. 4. The wcab found by a preponderance of the evidence that the work-related disability to the claimant’s left elbow precluded her from performing her medical technologist job as the job existed before her injury, establishing that she was disabled within the meaning of the worker’s compensation act, which, at the time, defined "disability” as a limitation of an employee’s wage-earning capacity in the employee’s general field of employment resulting from a personal injury or work-related disease. Reversed and remanded. Justice Riley, joined by Justice Griffin, dissenting, stated that proper resolution of this case requires an answer to the question whether it was the alleged disability or the mistakes in blood testing that led to the defendant’s decision to terminate the plaintiff. To date, causation questions ordinarily resolved by the worker’s disability compensation system have involved the issue whether employment causes or aggravates an injury or disease that qualifies for compensation. In this case, whether plaintiff’s injury made her disabled under the terms of the Worker’s Disability Compensation Act is not appropriately reached unless it is clear that her injury-related work performance rather than her alleged mistakes caused the termination. Thus, proper resolution of this case would be to remand to the wcac to determine whether it has jurisdiction to decide whether the plaintiff was terminated for poor performance unrelated to her injuries, or for work slowdown as a consequence of them, and, if so, whether there are facts on record to permit the wcac to reverse what is in reality a credibility determination made by the hearing referee. Justice Brickley, dissenting, stated that the issue is whether, as a matter of law, the plaintiff’s evidence that she could not perform her work to her former employer’s satisfaction is sufficient under the standard required by MCL 418.301(4); MSA 17.237(301)(4). The defining standard regarding whether a worker is disabled is broader than work history with one employer. The statute requires an impairment in the employee’s general field of employment rather than employability with one specific employer. Absent any evidence regarding the plaintiff’s general employability as a medical technologist, the evidence presented, as a matter of law, did not meet the plaintiff’s burden of proof. Even if the plaintiff has proven a work-related disability, the case should be remanded for a redetermination of whether the injury is partial or total. Sachs, Waldman, O’Hare, Helveston, Hodges & Barnes, P.C. (by Granner S. Ries), for the plaintiff. Conklin, Benham, Ducey, Listman & Chuhran, P.C. (by Martin L. Critchell), for the defendants. Amici Curiae: Glotta, Rawlings & Skutt, P.C. (by Richard M. Skutt), and Monica Farris Linkner and Jeffrey T. Meyers, for Michigan Trial Lawyers Association. Lacey & Jones (by Gerald M. Marcinkoski) for Chrysler Corporation and Michigan Mutual Insurance Company. Levin, J. This is a worker’s compensation case. The hearing referee found that plaintiff Clara McKissack sustained a work-related disability to her left elbow, but concluded that it was not a continuing disability because she was able to return to her job as a medical technologist with defendant Comprehensive Health Services of Detroit. The Worker’s Compensation Appeal Board reversed, holding that McKissack had a continuing disability because she was not able to perform her duties adequately, and that this had led her employer to become dissatisfied and to demand her resignation. The Court of Appeals reversed. This Court granted leave to appeal limited to the question whether there was sufficient evidence to support the Wcab’s finding that McKissack was suffering from a continuing disability. We reverse because we find that there was sufficient evidence. I McKissack, a fifty-four-year old senior medical technologist, commenced employment with Comprehensive Health Services in 1977. She fell while walking across an employee parking lot on June 20, 1983. She sustained a fracture of the right knee and left elbow, and was hospitalized initially for two weeks, and returned for an additional week in September. After casts were removed from her right knee and left elbow, she was placed on a regimen of physical therapy. McKissack’s attending physician acquiesced in her request to return to work, but imposed restrictions against prolonged standing or walking, strenuous use of the left arm, repetitive bending, and heavy lifting. She returned to her full duties as a medical technologist on January 18, 1984. She walked with a marked limp. She often resorted to the use of a cane to assist her in ambulation. She had a limitation of motion in her left arm, her elbow being frozen at the fracture site. She testified that she moved slowly in performing her duties because of right leg, left shoulder, and left arm pain, and that she could not move her arm upward more than forty degrees. A The hearing referee found that McKissack resigned on November 26, 1984, after she was asked to do so because she had failed to carry through to conclusion certain ana tests, and, as a result, two patients were placed in intensive care, exposing Comprehensive Health Services to possible litigation. The hearing referee concluded,, on the basis of the testimony of physicians who examined McKissack for Comprehensive Health Services, that McKissack was able to perform her normal occupational duties on her last day of work, November 26, 1984, and that she did not leave work because of her injuries of June 20, 1983, "but as a result of an unfortunate series of incidents in which she neglected to follow through on ana testing procedures which she, herself, had been instrumental in establishing.” McKissack had thus failed to sustain the burden of proving disability beyond January 18, 1984. B The wcab reversed, stating that, on the basis of the testimony of the treating and examining physicians, the testimony of McKissack, and of lay witnesses, McKissack was "unable to continue to perform her job as a medical technologist due to the physical residuals of the injury . . . .” The wcab found as facts that McKissack’s "arm limitations affected her ability to perform her job, to the extent that the job was painful,” that "her performance was slower than prior to the injury,” that her supervisor asked her "to work more quickly,” and that the mistake was due to the "speed up” required by McKissack’s "supervisor when she was unable to work quickly.” The wcab added that McKissack "was not able to perform the work” at Comprehensive Health Services, and that, even if she were able to perform the work, Comprehensive Health Services "has not shown a violation of company rules which would normally result in termination of a non-disabled employee.” The wcab explained that McKissack’s direct supervisor "did not feel the test performance was grounds for termination; and in fact blamed herself for part of the problem.” c The Court of Appeals reversed the decision of the wcab. It acknowledged that it "is bound by findings of fact made by the [wcab], which are conclusive in the absence of fraud. Const 1963, art 6, § 28” and that its "authority is to review only questions of law . . . .” The Court of Appeals said that there was competent evidence to support the wcab’s determination that McKissack "could perform her duties as a medical technologist more slowly after injury than before, and only with .pain.” It said that that finding failed to establish, however, that Mc-Kissack is " 'disabled’ as statutorily defined. After injury, plaintiff returned to her regular employment and suffered no diminution of remuneration. The record is wholly void of evidence that, after injury, the speed with which plaintiff could carry out her job duties was below .the minimum acceptable for a medical technologist employed by” Comprehensive Health Services. The Court of Appeals said that while McKissack "could only work with pain,” she "could perform and was performing her duties when she resigned from her employment. Merely because her work was painful does not establish that she could not perform it or that she was disabled from performing it. Kostamo v Marquette Iron Mining Co, 405 Mich 105, 116 [274 NW2d 411] (1979).” The Court of Appeals in effect found that McKissack had not "been fired because of inability to keep pace with the demands of her employer . . . .” It said, assuming that McKissack "established a disability,” she was nevertheless precluded from receiving benefits because "she had not yet been fired, she was working under a 'bona fide offer of reasonable employment from the previous employer’ ” within the meaning of § 301(5)(a) of the Worker’s Disability Compensation Act: "Whatever the motivation for plaintiff’s resignation, whether it was under pressure or not, even assuming she was disabled, she nonetheless resigned.” ii The Court of Appeals erred in stating —that there was no evidence that "the speed with which plaintiff could carry out her job duties was below the minimum acceptable” by Comprehensive Health Services; —that evidence the work was painful does not establish that McKissack "was disabled from performing it”; —that McKissack was not "fired because of inability to keep pace with the demands of her employer”; and —assuming that McKissack "had established a disability,” § 301(5)(a) precludes her from receiving benefits because she had not been fired but rather, "[w]hatever the motivation for plaintiff’s resignation, whether it was under pressure or not, even assuming she was disabled,” she had resigned from a " 'bona fide offer of reasonable employment from the previous employer.’ ” A There was evidence that "the speed with which plaintiff could carry out her job duties was below the minimum acceptable” by Comprehensive Health Services. McKissack testified that she "didn’t have the speed that [she] had before” her injury. She "was coping with pain,” and "couldn’t handle the load that [she] previously could handle.” Her supervisor complained about the speed of her work. "[She] was constantly told [by her supervisor] that [she was] not holding up [her] end. The employees work[ed] extra to save [her] job for [her], and [she was] not holding up [her] end. This was constantly brought to [her] attention” by her supervisor. A coworker testified that on a number of occasions she overheard the supervisor so remonstrating with McKissack about her failure to hold up her end of the work. McKissack’s testimony and the testimony of her co-worker contravene the statement by the Court of Appeals that the "record is wholly void of evidence” that the speed with which McKissack could carry out her duties was below the minimum acceptable by Comprehensive Health Services. B Evidence that the work was painful was properly considered by the wcab in determining that McKissack "was disabled from performing it.” The Court of Appeals said, citing this Court’s decision in Kostamo v Marquette Iron Mining Co, supra at 116, that "[m]erely because her work was painful does not establish that she could not perform it or that she was disabled from performing it.” In Kostamo, this Court said that the worker’s compensation act "does not provide compensation for a person afflicted by an illness or disease not caused or aggravated by his work or working conditions. Nor is a different result required because debility has progressed to the point where the worker cannot work without pain or injury.” Id. Clearly there is a difference between pain resulting from "illness or disease not caused or aggravated” by the work or working conditions, and pain resulting from a work-related injury. As indicated in Kostamo, worker’s compensation benefits may not be awarded simply because a worker is unable by reason of pain to continue with the work if the cause of the pain is illness or disease not caused or aggravated by the work or working conditions. But contrariwise, if the wcab finds that pain is caused or aggravated by a work-related injury, and the worker cannot by reason of pain resulting from the injury continue to work, the wcab can find that the worker is disabled and award benefits. c The Court of Appeals exceeded its authority in finding in effect as a fact that McKissack was not "fired because of inability to keep pace with the demands of her employer . . . .” It is one thing for the Court of Appeals to find that there is insufficient evidence to support a finding of fact made by the wcab; the Court of Appeals exceeds its authority when it makes its own findings of fact. Thomas v Griffin Wheel Co, 8 Mich App 35, 45; 153 NW2d 387 (1967). Moreover, the wcab found that Comprehensive Health Services had "not shown a violation of company rules which would normally result in termination of a non-disabled employee.” The wcab thus found that Comprehensive Health Services had not shown to the satisfaction of the wcab that McKissack was asked to resign for a reason other than her inability to keep up with the work, an inability that the wcab found to have been caused by her work-related injury. D Although § 301(5)(a) provides that an employee shall be deemed voluntarily removed from the work force and no longer entitled to any wage-loss benefits during a period of a refusal of a bona fide offer of reasonable employment from a previous employer, such as Comprehensive Health Services, or, indeed, another employer, or through the Michigan Employment Security Commission, that stricture is not, by the terms of § 301(5)(a), applicable unless the "employee refuses that employment without good and reasonable cause.” Clearly an employee, such as McKissack, may be found by the wcab to have "good and reasonable cause” to refuse even a "bona fide offer of reasonable employment” on a finding that the employee refused the employment or refused, by resigning, to continue in the employment because she was disabled from doing the work demanded by the employer. Such a finding by. the wcab is implicit in its other findings. See Thomas v Griffin Wheel Co, supra. The wcab found that McKissack was disabled from doing the work demanded by Comprehensive Health Services; it said: "we find plaintiff has proven by a preponderance of the evidence that the work related disability to the left elbow precludes her from performing her medical technologist job as the job existed prior to injury.” That finding is supported by the wcab’s findings of fact that McKissack’s "arm limitations affected her ability to perform her job, to the extent that the job was painful,” that "her performance was slower than prior to the injury,” that she "was told by her supervisor to work more quickly,” and that the "mistake” made by her was due to the "speed up” required by her supervisor when she was unable to work quickly. The wcab’s finding that McKissack was disabled from doing the work demanded by Comprehensive Health Services established that she was disabled within the meaning of the worker’s compensation act, which, at the time, defined "disability” as "a limitation of an employee’s wage earning capacity in the employee’s general field of employment resulting from a personal injury or work related disease.” As set forth at the outset of this opinion, we conclude that there was sufficient evidence to support the wcab’s finding that McKissack was suffering from a continuing disability. hi The wcab found that McKissack was totally disabled from January 19, 1984, the day after she returned to Comprehensive Health Services and resumed her full duties as a medical technologist. Comprehensive Health Services declares in its brief in this Court that this is mind boggling: "It is an oxymoron to declare at once and the same time that an injured employee is totally disabled from a field of endeavor upon resuming work in that field!” (Emphasis in original.) Comprehensive Health Services contends that if McKissack was disabled at all, she was partially, not totally, disabled, and that the wcab should in all events be required to determine a residual wage-earning capacity for McKissack as a partially disabled person pursuant to this Court’s decision in Trask v Modern Pattern & Machine Co, 222 Mich 692; 193 NW 830 (1923), and the decision of the Court of Appeals in Sob
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