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Carnoskes v. Aetna Industries11/16/2001
UNPUBLISHED
This case is again before this Court pursuant to the Supreme Court's remand order for consideration as on leave granted in light of Russell v Whirlpool Financial Corp, 461 Mich 579; 608 NW2d 52 (2000). We reverse and reinstate the magistrate's decision.
I.
Defendant hired plaintiff as a production welder immediately following his high school graduation in July of 1992. Although plaintiff suffered an injury to his left knee during high school that required surgery, the surgery was successful and there was no dispute that his knee was in excellent condition when he began working for defendant.
On April 13, 1993, plaintiff re-injured his left knee when he slipped and fell in a puddle of hydraulic fluid at work. Conservative treatment failed to resolve instability in the joint. Consequently, on June 15, 1994, plaintiff underwent reconstructive surgery on his knee to repair torn tendons. Plaintiff was voluntarily paid workers' compensation benefits from April 14, 1993 through February 13, 1995. He attempted to return to work in December 1994, but his knee swelled significantly, and he underwent six more weeks of physical therapy.
Plaintiff again attempted to return to work on February 14, 1995, but no sit-down work was available. He attempted to perform a stand-up job, but his knee began to swell again. He was sent home. The following day, plaintiff neither reported for work nor called in to advise of his absence. Plaintiff testified that on February 17, 1995, he went to the corporate health clinic, where his knee was treated with ultrasound and massage. He did not return to work, but went to see his own doctor on February 23, 1995. Apparently, plaintff did not call in or return to work until someone from work called him on March 5, 1995. At that time, plaintiff's employer told him to come in because a sit-down job was available. Plaintiff, however, was instructed to go to the clinic and obtain a release before returning.
Plaintiff testified that he went to the clinic the next morning, March 6, 1995, between eight and nine in the morning and did not get out until after one o'clock in the afternoon. He called into work, but claimed that the plant manager told him not to come in until the next day. Plaintiff reported for work on March 7, 1995, and was given a desk job. That same day, plaintiff was presented with a warning letter for three unexcused absences on February 15, 16 and 17, 1995. Plaintiff had previously received two written warnings for unexcused absences in December 1992 and January and March 1993. Plaintiff continued to work at the desk job, but received a second written warning on May 5, 1995 for unexcused absences on March 6, April 12 and April 24, 1995. At a counseling session during which he was given the letter, plaintiff claimed that these absences were due to problems with his knee. Finally, on September 8, 1995, plaintiff was given a discharge notice after unexcused absences on June 21, August 14, August 23 and August 25, 1995.
Plaintiff filed an application for hearing with the workers' compensation bureau on October 26, 1995. Magistrate Richard J. Zettel found that plaintiff proved a partial disability by a preponderance of the evidence. He acknowledged recent decisions holding that an employee working under restrictions may be terminated for just cause and lose his entitlement to benefits if his intentional actions are the type that a reasonable employee would realize will result in the loss of his employment. However, the magistrate determined that defendant did not have just cause to terminate plaintiff because on February 15-17, 1995, " laintiff was still suffering residuals from his left kne
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