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McJunkin v. Cellasto Plastic Corp.10/31/1997
ON REMAND
In this worker's compensation case we are called on to decide two separate issues related to the statutory concept of a reasonable offer of employment by an employer to an employee who is otherwise entitled to benefits as a result of a work-related injury that has resulted in disability. MCL 418.301(5)(a); MSA 17.237(301)(5)(a). This statute partially codifies the common-law concept of favored work. Pulver v Dundee Cement Co, 445 Mich 68, 74; 515 NW2d 728 (1994). The present case has been remanded to us by our Supreme Court for consideration as on leave granted and in light of Derr v Murphy Motor Freight Lines, 452 Mich 375; 550 NW2d 759 (1996), and Price v City of Westland, 451 Mich 329; 547 NW2d 24 (1996). 453 Mich 911 (1996). After a careful review of the record and the applicable legal authorities, we affirm in part, reverse in part, and remand to the Worker's Compensation Appellate Commission for further proceedings consistent with this opinion.
I.
Plaintiff had a number of jobs before he began working for defendant in December 1988 at a full-time production job. In January 1991, he injured his back while lifting something at work. The injury kept him off work for the most part until August 1991, when he was placed in a light-duty job designated as "net assembly" for four hours a day, with the remaining half day spent in a work-hardening program. Plaintiff's back problems continued, and in October 1991, a myelogram disclosed a herniated disc at L4-L5 with nerve-root compression on the right side. Surgery involving a right hemilaminectomy and discectomy was performed in December 1991.
The surgery kept plaintiff off work until June 1992, when he was offered a modified version of the light duty, "net assembly" job. Plaintiff made a brief, one-time attempt to perform the offered job, but discontinued his efforts, complaining of severe back pain. Within a week, plaintiff returned to his surgeon, who provided him with a slip indicating that he was to remain off work until further notice.
In July 1992, plaintiff saw a doctor on referral by defendant and magnetic resonance imaging (MRI) studies were ordered. Defendant's doctor reviewed the results of the MRI and concluded that they revealed a residual extruded herniated disc fragment at L4-L5 on the right side and that this finding substantiated plaintiff's subjective complaints of back pain. Epidural steroid injections were recommended for pain relief, but the doctor suggested that further surgery would be indicated if the injections did not serve their purpose. The record does not disclose whether plaintiff received the injections recommended by defendant's doctor, who also indicated that plaintiff could return to work with numerous restrictions. In reliance on the latter, defendant again offered plaintiff the light duty, "net assembly" job within the restrictions outlined. Plaintiff declined, relying on his surgeon's slip indicating that he was not to return to work until further notice.
In February 1993, plaintiff's surgeon was deposed. During the deposition a videotape demonstration of the modified light-duty, "net assembly" job offered to plaintiff in June and July of 1992 was shown. The doctor opined that plaintiff was probably capable of performing the job, although plaintiff would suffer pain in doing so and would have to be given the opportunity to move gradually into full-time work. The doctor noted that plaintiff had to go about daily living with a certain amount of pain and that he could just as well perform the job under these circumstances, given the numerous accommodations that defendant had made in the job duties of the "net assembly" position to account for the
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