Paschke v. Retool Industries , 197 Mich. App. 650 ( 1992 )

197 Mich. App. 650 (1992) 496 N.W.2d 804

PASCHKE
v.
RETOOL INDUSTRIES

Docket No. 131280.

Michigan Court of Appeals.

Decided December 29, 1992, at 9:15 A.M.

Goodman, Eden, Millender & Bedrosian (by Roderick V. MacNeal), for the plaintiff.

Ulanoff, Ross & Wesley, P.C. (by Carmen C. Tice), for the defendants.

Before: WEAVER, P.J., and WAHLS and TAYLOR, JJ.

PER CURIAM.

Plaintiff Raymond R. Paschke worked for defendant Retool Industries from 1956 until 1983. As office manager, plaintiff was in charge of funding, billing, payroll, and similar matters. In 1981, the owner of the business sold it to Mr. Wilson, who discharged plaintiff's assistant office manager and replaced him with Mr. Wilson's live-in companion. Plaintiff alleges preferential raises were handed out on the basis of personal favoritism, some benefits were reduced, and there was a problem with vacation pay. Plaintiff claims he became depressed and hypertensive over the way things were handled under the new owner.

By March 1983, plaintiff became "tired and drawn out" and was experiencing chest pain, headaches, and sleeping difficulties. Plaintiff's last day of work was March 22, 1983, when he stayed home on the advice of his wife. Plaintiff never saw a psychiatrist for treatment, though he did receive medical assistance in the form of antidepressants, blood pressure medication, and diuretics.

Plaintiff indicated his intention to return to work in June 1983. His employer informed him he could continue as assistant office manager at a lower wage. Plaintiff never returned to work. Plaintiff sought and received unemployment compensation benefits, which were opposed by defendant. To receive them, plaintiff represented that he was willing and ready to return to employment.

Plaintiff then initiated proceedings for workers' compensation benefits. The Workers Compensation Appeal Board, in reversing a decision by a hearing referee, determined plaintiff's employment to have been skilled, adopted medical testimony indicating that plaintiff might be ill-advised to return to work, and granted plaintiff an open award of benefits on the basis of both a psychiatric and a hypertensive disability.

Defendant now appeals. We reverse, finding plaintiff is judicially estopped from making a claim for workers' compensation.

In applying for and receiving unemployment benefits, plaintiff asserted that he was able to continue to engage in gainful employment. The Court will not allow a party to assert a position and receive a benefit on one side of the ledger, then make a contrary assertion on the other. Allen v Zurich Ins Co, 667 F2d 1162 (CA 4, 1982); SCA Services, Inc v General Mill Supply Co, 129 Mich App 224; 341 NW2d 480 (1983); Murdock v Michigan Health Maintenance Organization, 434 Mich 851; 450 NW2d 264 (1990).

We reverse the order below and remand for entry of an appropriate order denying plaintiff workers' compensation benefits.