Chilcote v. Cadillac Malleable Iron Co. ( 1993 )

198 Mich. App. 166 (1993) 497 N.W.2d 211

CHILCOTE
v.
CADILLAC MALLEABLE IRON COMPANY

Docket Nos. 128893, 129002.

Michigan Court of Appeals.

Submitted August 12, 1992, at Lansing. Decided February 1, 1993, at 9:50 A.M.

Timothy J. Bott Law Offices, P.C. (by Timothy J. Bott), for the plaintiff.

Russell & Carowitz (by Rodney W. Fagerman), for the defendant.

Before: MacKENZIE, P.J., and WAHLS and SULLIVAN, JJ.

MacKENZIE, P.J.

In these consolidated appeals, the parties appeal by leave granted from an order of the Workers' Compensation Appeal Board that found plaintiff entitled to continuing benefits for partial disability from autumn of 1984 onward. We reverse.

The facts are undisputed. Plaintiff worked for defendant from 1954 until September 30, 1981, when a labor dispute resulted in a union strike against defendant. On January 18, 1982, defendant refused the union's offer to return to work. Apparently, the strike has never been resolved.

In June 1984, plaintiff sought workers' compensation benefits, claiming specific work-related pulmonary and orthopedic injuries. In the fall of 1984, plaintiff began working as a Christmas tree guard and then as a checkout clerk at a convenience store. Plaintiff testified that he did not think he could return to the foundry work he performed for defendant.

A hearing referee found that plaintiff was partially disabled in unskilled employment, that he had established injury dates of October 19, 1979, March 3, 1981, and September 30, 1981, and that he was entitled to a continuing award of benefits commencing June 11, 1982, two years before he filed his petition.

The WCAB modified the date compensation was to commence. Like the hearing referee, the board found plaintiff partially disabled, but it found that he had forfeited his right to compensation during the strike, citing Pigue v General Motors Corp, 317 Mich. 311; 26 NW2d 900 (1947), and Jones v Auto Specialties Mfg Co, 177 Mich. App. 59; 441 NW2d 1 (1988). Nevertheless, the board concluded that if plaintiff could show that he was no longer refusing to perform work that was within his capacity to perform and that he had an actual loss of wages due to his limitation in earning capacity that was clearly attributable to his prior work-related injury, he could collect compensation benefits. The board then found that plaintiff had made such a showing, citing his testimony that he had found a job guarding Christmas trees in the fall of 1984. It therefore held plaintiff entitled to compensation from the fall of 1984.

In its appeal, defendant first contends that the proofs were insufficient to show that plaintiff had a work-related orthopedic or pulmonary disability. Specifically, defendant contends the WCAB'S decision should be reversed because the board failed to find that plaintiff had proven work-related aggravation of his condition "in a significant manner." This argument is without merit. The "in a significant manner" test was added to § 301(2) of the Workers' Disability Compensation Act, MCL 418.301(2); MSA 17.237(301)(2), by 1980 PA 357, effective January 1, 1982. The amendment did not apply retroactively. Norwin v Ford Motor Co, 132 Mich. App. 790; 348 NW2d 703 (1984). There was no requirement before the 1980 amendment that the appeal board find that employment had contributed to the disability "in a significant manner." Rather, it was sufficient for imposition of liability if the employment contributed "even slightly" to the causation of the disabling condition. Dressler v Grand Rapids Die Casting Corp, 402 Mich. 243; 262 NW2d 629 (1978); Mullins v Dura Corp, 46 Mich. App. 52; 207 NW2d 404 (1973). See also Arnold v General Motors Corp, 84 Mich. App. 713; 270 NW2d 504 (1978), and Gibbs v General Motors Corp, 114 Mich. App. 1; 318 NW2d 565 (1982).

The parties' remaining arguments focus upon whether the WCAB erred in concluding that plaintiff's participation in the union strike did not permanently bar him from receiving compensation benefits and, if plaintiff was not permanently barred, whether the WCAB erred in its determination of when his compensation should commence.

In Pigue, supra, the Supreme Court held that an employee who had been injured but performed favored work was not entitled to workers' compensation benefits for the period of his union's strike, in which he voluntarily participated. The Court reasoned that the employee's loss of earnings was not due to injury, but rather the employee's refusal to work. Both parties contend that the WCAB improperly applied Pigue to the facts of this case.

Plaintiff contends that the Pigue Court's holding, that an employee is not entitled to compensation during his union's strike, does not apply because he was not performing favored work when the strike was called. Plaintiff further contends that, even if Pigue is applicable, it was wrongly applied by the WCAB because his union's January 18, 1982, offer to return to work was a constructive articulation of his willingness to return to work. Thus, plaintiff reasons that he was entitled to compensation on January 18, 1982, when he was constructively an involuntary striker. Defendant, on the other hand, contends that the WCAB erred as a matter of law in concluding that the Pigue forfeiture provisions applied only until the fall of 1984, when plaintiff sought alternative employment guarding Christmas trees. According to defendant, plaintiff's attempts to perform alternative employment did not suspend the forfeiture provisions of Pigue, and the Pigue forfeiture provisions continued to apply until plaintiff indicated a willingness to return to work within his capacity for defendant.

Plaintiff's claim, that Pigue should not apply because he was not performing favored work when he went on strike, is without merit. In Jones, supra, this Court expressly found that Pigue applies equally to disabled workers not performing favored work. Nevertheless, neither the Pigue nor the Jones decision directly indicates the correct result in a case such as this where the strike never ends. We agree with the appeal board that the rationale of those cases does not require that plaintiff be barred forever from receiving compensation during the strike period. However, we disagree with the appeal board's contention that it is sufficient to end the period of suspension to have the plaintiff simply no longer refuse to perform some work for some other employer that was within his capacity to perform. We think that at a minimum plaintiff, in order to be entitled to compensation benefits while a strike is ongoing and in which he is a voluntary participant, must show that he informed his strikebound employer of his willingness to return to work for that employer. Working for other employers is not evidence that plaintiff is willing to return to work for his strikebound employer.

In conclusion, we believe that the appeal board erred in its attempt to extend the application of the Pigue and Jones decisions to this case, where the strike never ended and plaintiff never notified defendant employer that he was willing to return to work. We are not suggesting that plaintiff could not still obtain compensation benefits from defendant for his partial disability; we do hold that he must notify defendant that he is willing to return to work before he is entitled to compensation.

Reversed.