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Sam Clendion Jr., Plaintiff
County of Kent Self-Insured, Defendant
Docket No. 1996 ACO #330
Workers' Compensation, Appellate Commission
July 11, 1996
James M. Joyce, for Plaintiff
Marshall W. Grate, for Defendant.
Magistrate Anderson

40.020 Employee Improper Conduct Drug or Alcohol Use

50.057 Computation of Awards Voluntary Removal from Labor Market

50.082 Computation of Awards Reasonable Employment


Following a work-related injury plaintiff an employee at a juvenile detention center was terminated for failing a random drug test which he was required to submit to following his admission one year prior to a drug rehabilitation program. The Magistrate denied benefits finding that plaintiff's discharge was for just cause. A majority of the Commission affirmed noting that the concept of constructive refusal also applied to situations where there was no favored work being performed. The dissent argued that plaintiff was not performing reasonable employment at any time after his work-related injury and therefore the caselaw cited by the Magistrate was inapplicable.

After June 12, 1992, hearing and by decision mailed July 14, 1992, the magistrate, Richard J. Anderson, found as stipulated that plaintiff received a December 23, 1989, specific-event work-related injury. However he denied compensation because October 3, 1990, discharge was for just cause. An order should enter reversing the denial.

Plaintiff born November 2, 1953, began working for defendant in December 1982, as a part-time group worker. After about three years he began doing the job full time. He described this work with juveniles in detention: Well we run a routine--we get them up we you know get them for breakfast get them ready for school we're to be involved in activities with them play basketball or you know if we're outside baseball or we're supposed to get them physically involved and get them to exercise. And as the staff you're supposed to be involved with them and compete with them.

As the magistrate noted plaintiff "checked himself into a drug rehabilitation program at Metropolitan Hospital on October 31, 1989. His employer agreed to take the Plaintiff back to work with the provision that he would submit to random drug testing for a period of two years."

Plaintiff did return to defendant and received the injury for which he claims compensation; the magistrate outlined his testimony about it: "Plaintiff testified that on 12/23/89 while playing basketball with the staff and residents he injured his right knee. After the injury he sat on the floor for a period of time and then could not walk." Plaintiff testified that his "knee just kind of exploded." There is as I noted at the outset no dispute about his having been injured at work.

Plaintiff was able to drive to an employer-designated industrial clinic but it was closed so he went to Butterworth Hospital. A knee brace was dispensed and he was referred to private physicians a Dr. Ribbe, in practice with William Wilson Schwab, M.D., Board-certified orthopedic surgeon. Dr. Ribbe saw plaintiff on January 2, 1990.

Dr. Schwab first saw him on January 8, 1990, and found marked effusion exquisite tenderness and swelling. The doctor recommended arthroscopy accomplished January 12, 1990. He testified that it was an arthroscopic lateral meniscectomy and Clancy ACL reconstruction of the right knee.

As of the end of April 1990, Dr. Schwab considered plaintiff's condition satisfactory but that he certainly had to continue with physical therapy. He noted plaintiff's concern "as far as work goes yet in that with the type of boys he is with he often times might end up getting in altercations and is concerned that he can re-injure his knee." The doctor considered this "a valid concern. At this point the graft is still quite weak and certainly the strength is not such that we could get him back to any type of sporting activities nor would I want him to be in any significant altercations because he might rupture the graft."

Dr. Schwab released plaintiff to return to work at the end of May 1990, but clearly with restrictions: At that point in time certainly the graft will not be at full strength but I think it would be strong enough that it would be unlikely for him to get any further injury there. Basically as far as sporting activities go playing with the boys he should not play basketball with them until 9 months after surgery. He could do some lesser activities starting at about 6 months such as tennis if they were to play something like that. Biking would be fine for him to do at 4 1/2 months. Straight ahead jogging would be fine but no sprinting twisting pivoting or quick start/stops.

Plaintiff returned to regular work on May 29, 1990, although he had asked for light duty; the magistrate explained: Initially the Plaintiff requested the third shift where his duties would be easier but this request was denied. Plaintiff continued working with dangerous residents. Plaintiff's knee continued to be unstable and a large knee brace was prescribed and worn. Plaintiff testified he was put on restrictions of no strenuous physical activities no running or other activities which would place additional stress on the knee. Plaintiff was paid workers' compensation benefits from 1/4/90 to 5/28/90 at the rate of $ 274.39 per week. These benefits were terminated on his return to work on 5/29/90.

The magistrate found as fact that plaintiff was not on favored work--reasonable employment--at any time after his work-related injury: "On return to his former job Plaintiff was restricted in the amount of physical activity he could perform. But he was performing his regular job. I find that Plaintiff was not on favored work at the time he was fired. He continued working in his capacity as a group worker until his termination on 10/3/90."

The finding that defendant never honored restrictions imposed by Dr. Schwab and never accommodated the limitations they reflected is so well supported that there is really no evidence for a contrary finding.

The magistrate outlined plaintiff's unrebutted testimony about continuing care and continuing problems back at defendant: Plaintiff continued to see Dr. Schwab even though he was working. Plaintiff worked from 5/29/90 to 10/3/90 during which time he had continuing problems with his knee. He stated that from time to time he would have physical confrontations with the residents. These confrontations did place additional stress on his knee. More specifically plaintiff testified as follows:

I got into maybe three or four physical confrontations with the residents there and you know a couple of times I strained a knee I missed work you know I went over to the county clinic and you know they told me don't stoop or bend or try to walk up any steps or anything like that.

As I noted at the outset plaintiff was terminated by defendant on October 3, 1990, for failing a drug test. He denied using drugs and asserted that the test results were invalid. As I explained earlier defendant had agreed in 1989 to continue plaintiff's employment but only if he submitted to random drug testing for two years. It was just such random testing that resulted in termination. As the magistrate noted "Jack Roedema the Director of the Juvenile Detention Center testified as to the reason for the Plaintiff's termination on 10/3/90. Al[fred] Stremler Plaintiff's supervisor at the juvenile detention facility described the incidents of Plaintiff's termination."

Plaintiff argues that defendant did not meet its burden of proving the accuracy of the drug testing. He also argues that the magistrate improperly allowed defendant to take depositions of lay witnesses post-hearing. There does not appear to be any reference to these depositions in the magistrate's opinion however and given the result reached in this opinion there seems no need to rule upon whether defendant established the accuracy of its testing and whether the magistrate complied with Rule 408.40f.

Much of defendant's brief is given over to establishing (successfully) its need for personnel that abstain from illicit drug use a point accepted by the magistrate:

The reason for termination was a positive result on a drug screen for cocaine. Employees were forbidden to use drugs. Plaintiff violated employment policy. I find eminently reasonable the County's desire to forb[id] its juvenile detention workers the use of drugs and to effectuate this policy through the sanction of dismissal. The discharge then was reasonable in view of all circumstances.

Citing Todd v. Hudson Motor Car Co., 328 Mich. 283 (1950); Calvert v. General Motors Corp., 120 Mich. App. 635 (1982); and Porter v. Ford Motor Co., 109 Mich. App. 728 (1981), the magistrate held that plaintiff's discharge for just cause discharged as well defendant's obligation to pay compensation. It is not entirely clear from his opinion whether or not the magistrate was relieving defendant of the obligation to pay medical benefits along with relieving it of its obligation to pay weekly benefits but defendant advises that it has paid medical.

The flaw in the magistrate's reasoning for denial is that every single one of the cases he has cited and every such one ever decided has had at its very foundation the fact that the claimant in question was discharged from favored work. These cases and all other cases involving favored work until the enactment of MCL 418.301(5), to (9), and MCL 418.401(3), to (7), constitute Court-made law and reflect nothing in the Act. What they do reflect is the concept that favored work is a two-way street and that the employer who provides it has a right to acceptable behavior from the employee who accepts it. Bower v. Whitehall Leather Co., 412 Mich. 172 (1981). These cases have no bearing whatsoever on rights and obligations of parties not involved in a favored-work situation.

That Elmore Todd was on favored work at the time of his discharge is part and parcel of the holding of Todd supra its sine qua non:

The sole question raised is whether a partially disabled employee who had been given lighter work is entitled to be awarded compensation after his discharge for gambling. We limit our opinion to the sole question propounded the effect of discharge for gambling. The discussion of this matter will be predicated upon a factual premise that plaintiff was partially disabled and was engaged in favored employment at the time of his discharge. [Emphasis added.] 328 Mich. 283, 284, 285-286.

The Todd Court gave its reasons for confining so closely its holding to favored-work situations:

It is the duty of a disabled employee to co-operate not only by accepting tendered favored employment which he is physically able to perform (Kolenko v. United States Rubber Products Inc., 285 Mich. 159) but also by refraining from criminal conduct destructive to the morale of his fellow employees and his employer's business. Where he engages in criminal gambling activities while at work and is discharged for that cause he will not be entitled to compensation for the resultant loss of earnings. His favored employment has ceased through his own volition and turpitude and not by reason of his accidental injury. In the case at bar lighter work at earnings equal to or greater than received at the date of injury was made available to plaintiff. It was not through physical inability to perform the work arbitrary caprice of the employer or some ordinary cause for dismissal that the employment was terminated. Plaintiff was discharged for gambling activities forbidden by law which were in no wise in furtherance of the duties of his employment. Id. at 289.

Todd is based in effect upon a constructive refusal to perform favored work. In the absence of such work Todd and all its progeny have no logical application. Indeed Todd expressly excludes the instant situation of physical inability to perform the work; the instant plaintiff had asked for lighter work was denied it and performance of his regular work gave him a lot of problems; it was beyond what Dr. Schwab would have had him do and doing it resulted in visits to a clinic and lost time.

As Plaintiff points out he was on restrictions when he was terminated and the work he had been doing hardly accommodated them. Mr. Stremler testified that plaintiff worked without restriction and he actually saw him participating fully in all the job's activities including the basketball at which he was originally injured.

These are not the facts of Todd or of Garrett v. Chrysler Corp., 337 Mich. 192 (1953). Garrett citing Todd also points out that were it not for James W. Garrett's voluntary drunkenness an act of moral turpitude it is reasonable to assume that he could have continued doing the light work that he had demonstrated the ability to do. Id. at 193. Neither the assumption nor the underlying premise--light work--obtains here.

When Dr. Schwab saw plaintiff on November 15, 1990, not long after defendant terminated him the doctor considered plaintiff totally disabled:

The patient has been having a lot of increased pain laterally in his knee. Apparently he had a couple of altercations with kids at work which has aggravated this. His exam today demonstrates nice stable ligaments: and x-rays today do not show anything specific. At this point I think that he cannot work. I will plan to see him back in 2 weeks to see how he is doing. We may have to consider doing an arthroscopy to see if he tore a meniscus. I would certainly think that this is Workers' Compensation.

Since plaintiff was no better on December 3, 1990, Dr. Schwab decided on surgery:

Sam returns today with continued problems with his right knee. He is having pain from his hardware (screw & staple from Clancy procedure) & possibly some scarring from his previous surgery. I think we should go ahead with the arthroscopy & hardware removal at this point & try to improve these symptoms. This problem would be a direct result [of] the original injury on 12/23/89 as the hardware was put into the knee & any scarring would be a result of the prior surgery done to repair damage done on 12/23/89.

Plaintiff had this second operation on December 21, 1990. Afterward as the magistrate noted "Plaintiff was on crutches for about a month and a half during which time he could not bend his left [sic] knee or climb stairs or do any work which required any activity. Plaintiff testified that he could not go back to work at the County due to pressure recurring in his knee." Certainly plaintiff on crutches was totally disabled and that was not even the end of surgery. According to Dr. Schwab as of January 28, 1991, plaintiff "cannot begin to do his usual job."

The doctor continued to see plaintiff and continued physical therapy. Although he hated to do it Dr. Schwab decided on a third operation:

With the persistent significant pain and inability to work I think we should go ahead with a TAS. He would like to have the screw removed from the femur and I will attempt to do this but I did tell him that it is possible I may not be able to get it out in which case we will have to leave it.

The surgery was performed on May 1, 1991, and the intra-articular screw was indeed removed from the femur. The doctor advised plaintiff though that "we probably won't be able to get him back to his previous job." Of course plaintiff had long before lost that job.

When plaintiff saw Dr. Schwab on June 6, 1991, the doctor was of the impression that plaintiff "will never return to his previous occupation and he would have to do something where he would be up walking to some degree and sitting part of the time and for sure not to have to be in a situation where he would be in any altercations." The magistrate noted plaintiff's testimony to the effect "that after this third surgery he was on crutches for about two months during which time he could not climb or walk without assistance. Plaintiff testified that following the third surgery he could not return to work at Kent doing the type of work he was doing before his original injury."

The underpinning of both the magistrate's decision and of defendant's arguments at appeal is that plaintiff is disabled. It is beyond question that for many months while deprived of weekly benefits he was totally incapacitated. Both Todd and Garrett are integrally tied to findings of partial disability and performance of favored work at the time of the discharge used to relieve the employer of the obligation to pay weekly benefits. Had the instant plaintiff refused to return to regular work, work never shown, and never found within his capacity to perform and then flunked a drug screening he could not short of incarceration MCL 418.361(1) have been cut off compensation.

After nearly a quarter of a century Todd and Garrett were resurrected and expanded by Court of Appeals in Scott v. Kalamazoo College, 77 Mich. App. 194 (1977). But the premise--favored work--remains. Scott was followed by Porter and Calvert cited by the magistrate. Porter sets forth the following criteria which it attributes to Scott. We agree with the standard established in Scott. Furthermore where there is a question as to whether plaintiff could perform the favored work Scott established a two-step analysis. First was plaintiff able to perform the favored work? If not the plaintiff is entitled to receive disability benefits. If plaintiff was able to perform the work the next question is whether plaintiff was fired for any reason connected with his disability or whether he was fired for just cause. If defendant can show that plaintiff was fired for violation of company rules which would normally result in termination of a non disabled employee and that the violation was not caused by plaintiff's disability then benefits may properly be denied. 109 Mich. App. 728, 731-732. Our plaintiff requested but was not given favored work and his regular job as I have explained at length was and remains beyond his capacity to perform. "If plaintiff was unable due to the residuals of his injury to perform the favored work the inquiry is ended and plaintiff is entitled to benefits." Id. at 732.

Porter recites the rationale for its holding the fact of performance of favored work at its root and core:

By establishing the second prong of this test both parties are protected. The employee is guarded against termination or harassment leading to voluntary termination as a pretext to denial of benefits. The employer is insulated against unacceptable behavior which normally would result inn termination of other employees. A disabled employee who can perform the favored work yet violates company rules to the extent that discharge is justified in actuality is refusing to perform the favored work and thus creating a bar to compensation. See Lynch v. Briggs Manufacturing Co., 329 Mich. 168; 45 NW.2d 20 (1950). Ibid. This concept of constructive refusal of which I earlier spoke to perform favored work obviously entails the supplying of favored work.

In July 1991, plaintiff found work at Manpower. However he stipulated that he would do only light work with no stooping or bending and he was accommodated. Subsection 301(5).

In about October 1991, plaintiff moved to Texas where he found work as a salesman at Tandy Corporation for no more than four weeks. He then worked at Vita Living Incorporated where he remained as of hearing. The job involves working with mentally retarded adults and entails no physical activity. It is within his capacity to perform. Subsection 301(5).

On February 3, 1992, plaintiff was examined in Texas by Larry Likover, M.D. Board-certified orthopedic surgeon. He did not consider plaintiff in need of further treatment. "He appears to have reached the point of maximal medical improvement." Dr. Likover had the following impression:

This man has an objectively good result from anterior cruciate ligament surgery. He has a slight persisting Lachman. He has no apparent functional instability of his knee. He continues to have complaints of arthralgia about the knee. At this point in time this man appears capable of working as he is doing. He probably will find it difficult to compete in high velocity sports. He is capable of performing the usual duties of a juvenile group worker or other psychotherapeutic worker. I would rate his disability as 25% of the lower extremity related to this injury or 10% of the total body.

The magistrate noted Dr. Likover's testimony to the effect that plaintiff was "capable of returning to work as he had been doing but that he should be careful about high velocity sports." The work plaintiff was doing when he saw Dr. Likover did not involve any such activity but work at defendant necessitated it. Moreover when Dr. Likover saw plaintiff it was with the benefit of three operations; when plaintiff was terminated by defendant he had had the benefit of only one and that one led to the next two.

The magistrate noted and apparently accepted plaintiff's testimony that even as of hearing he has constant knee pain and did not feel he could return to the work he had done at defendant. The magistrate outlined Dr. Schwab's testimony corroborating plaintiff's:

Dr. Schwab testified that as of 4/11/91 he continued restrictions on Plaintiff's use of his right leg. This physician in effect took the Plaintiff off of any type of work where altercations might occur that could be causative of additional knee injury. This physician testified that the Plaintiff should not be continual[ly] walking that he should be able to sit part of the time stand part of the time that he should not lift over thirty pounds and should not have to stoop down to lift. According to the treating surgeon the restrictions previously referred to were placed on the Plaintiff as a result of the original injury that occurred during the basketball incident at work. . . .Dr. Schwab did place restrictions on the Plaintiff after the surgery in January of 1990. This physician restricted the Plaintiff's ability to play basketball for a considera[ble] period of time in the future. Additionally there should be no sprinting twisting pivoting or quick starts or stops. These restrictions continued throughout the entire period of Dr. Schwab's treatment.

Defendant is not even arguing that plaintiff is unimpaired; indeed it ends its brief with the assertion that "the Act was not intended to grant greater rights to disabled as opposed to able-bodied employees who are guilty of misconduct." However it is also true that the Act and before it case law provide far greater rights to employers who provide favored work-reasonable employment--than to those who do not and defendant has supplied no authority for its position that in the absence of the providing of reasonable employment as defined by subsection 301(9) it has such rights. WYSZYNSKI COMMISSIONER CONTROLLING

MCL 418.301(5)(a) provides:

If an employee receives a bona fide offer of reasonable employment from the previous employer another employer or through the Michigan employment security commission and the employee refuses that employment without good and reasonable cause the employee shall be considered to have voluntarily removed himself or herself from the work force and is no longer entitled to any wage loss benefits under this act during the period of such refusal.

The dissenting opinion asserts that since defendant did not provide the plaintiff with the favored work he requested defendant is going to be held responsible for the payment of benefits even though plaintiff in effect voluntarily removed himself from the work force through his failure to pass a drug test. If this proposition were accepted why would any employee ever seek to return to favored work? They could simply go back to their regular job even if the pain were agonizing violate company policy get fired and receive benefits. We find such a situation to be untenable and in conflict with the Act.

The dissenting opinion cites a passage from Porter v. Ford Motor Co., 109 Mich. App. 728 (1981), as did the magistrate in his opinion:

By establishing the second prong of this test both parties are protected. The employee is guarded against termination or harassment leading to voluntary termination as a pretext to denial of benefits. The employer is insulated against unacceptable behavior which normally would result in termination of other employees. A disabled employee who can perform the favored work yet violates company rules to the extent that discharge is justified in actuality is refusing to perform the favored work and thus creating a bar to compensation. [Citation omitted.] Our colleague then goes on to state: "This concept of constructive refusal of which we spoke earlier to perform favored work obviously entails the supplying of favored work." However we read neither the case law nor the statutory language as requiring an opposite holding when favored work is not involved.

We believe the concept of constructive refusal can and does apply to situations where there is no favored work being performed. The magistrate found that plaintiff was not on favored work. He wrote:

We must determine whether Plaintiff's employment was terminated for "just cause." Clearly Plaintiff sustained an injury arising out of and in the course of his employment with the County of Kent on 12/23/89. He was paid workers' compensation benefits and after a period of recuperation returned to work on 5/29/90. On return to his former job Plaintiff was restricted in the amount of physical activity he could perform. But he was performing his regular job. I find that Plaintiff was not on favored work at the time he was fired. He continued working in his capacity as a group worker until his termination on 10/3/90. The reason for termination was a positive result on a drug screen for cocaine. Employees were forbidden to use drugs. Plaintiff violated employment policy. I find eminently reasonable the County's desire to forbade its juvenile detention workers the use of drugs and to effectuate this policy through the sanction of dismissal. The discharge then was reasonable in view of all circumstances.

We find no legal error in the magistrate's application of the law. His conclusion flows logically from the case law he cites even though that case law as the dissenting opinion points out is premised on the concept of favored work.

We affirm the decision of the magistrate and adopt his opinion. MCL 448.861a(10). Commissioner Garn, concurs.


This cause came before the Appellate Commission on appeal by plaintiff from the decision mailed July 14, 1992, of Magistrate Richard J. Anderson denying compensation. The Commission has considered the record and the briefs of Counsel and believes that the decision should be affirmed. Therefore

IT IS ORDERED that the magistrate's decision is affirmed.