Lamoria v. Health Care & Retirement Corp.

593 N.W.2d 699 (1999) 233 Mich. App. 560

Barbara Ann LAMORIA, Plaintiff-Appellant,
v.
HEALTH CARE & RETIREMENT CORPORATION, Sun Valley Manor, Inc. and Marilyn K. Martin, Defendants-Appellees.

Docket No. 199795.

Court of Appeals of Michigan.

Submitted October 15, 1998, at Lansing. Decided January 29, 1999 at 9:10 a.m. Released for Publication April 5, 1999.

Howard & Howard Attorneys, P.C. (by Michael J. Brown ), Lansing, for the plaintiff.

Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Eric J. Pelton and Noel D. Massie), Birmingham, for the defendants.

Clark Hill P.L.C. (by Duane L. Tarnacki and J. Walker Henry), Detroit, Amicus Curiae for Michigan Manufacturers Association.

Before: CORRIGAN, C.J., and MICHAEL J. KELLY, GRIBBS, McDONALD, DOCTOROFF, MARK J. CAVANAGH and MARKEY, JJ.

PER CURIAM.

This Court convened this special panel under MCR 7.215(H)(3) to resolve the conflict between the prior vacated opinion in this case, Lamoria v. Health Care & Retirement Corp., 230 Mich.App. 801, 584 N.W.2d 589 (1998), and Rymar v. Michigan Bell Telephone Co., 190 Mich.App. 504, 476 N.W.2d 451 (1991), regarding the "reasonable time to heal" doctrine under the Handicappers' Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq.; MSA 3.550(101) et seq. The original Lamoria panel, in compliance with MCR 7.215(H)(1), followed this Court's holding in Rymar that an employee who on the date of his discharge is unable to perform the requirements of his job because of a disability may still have a claim under the HCRA if he would have regained the capacity to do the work within a reasonable time. If not for the precedential effect of Rymar, the Lamoria majority^[1] would have affirmed the trial court's grant of summary disposition for defendants regarding plaintiff's HCRA claim. We agree with the Lamoria majority and hold for the reasons it expressed that the HCRA does not require that an employer allow a disabled employee a reasonable time to heal. We therefore affirm the trial court's grant of summary disposition regarding plaintiff's HCRA claim. In all other respects, we adopt the opinion of the prior Lamoria panel as our own.

Affirmed in part, and reversed in part. Plaintiff, as the prevailing party, may tax costs under MCR 7.219.

MARK J. CAVANAGH, J. (concurring).

I concur in the result reached by the majority. Even assuming that a temporary disability constitutes a handicap within the meaning of the Handicappers' Civil Rights Act, M.C.L. § 37.1011 et seq.; MSA 3.550(101) et seq., I believe that the "reasonable time to heal" doctrine is too vague to give either employers or employees any meaningful guidance in making decisions in situations such as that presented in the instant case.

NOTES

[1] Judge Fitzgerald concurred, but wrote separately to express his belief that Rymar was correctly decided.