CAVANAGH, C.J.
I
In this worker's compensation matter, we must construe MCL 418.301(5)(a); MSA 17.237(301)(5)(a), and determine what constitutes "good and reasonable cause" justifying an employee's refusal of a bona fide offer of reasonable employment.
If an employee receives a bona fide offer of reasonable employment from the previous employer, another employer, or through the Michigan employment security commission and the employee refuses that employment without good and reasonable cause, the employee shall be considered to have voluntarily removed himself or herself from the work force and is no longer entitled to any wage loss benefits under this act during the period of such refusal.
Plaintiff disputes the conclusion that the job offered met the statutory definition of "reasonable employment." We find that this issue is not properly preserved because plaintiff failed to cross appeal on this issue. See Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich. 211, 234; 507 N.W.2d 422 (1993). We assume, without deciding, that the offer was indeed a bona fide offer of reasonable employment.
We hold that "good and reasonable cause" is the statutory equivalent of the similar requirement found in the judicially created favored-work doctrine. Since the Legislature incorporated this common-law requirement into the worker's compensation act without specifically defining it, we assume that the Legislature did not intend to change the common law.
Whether an employee's refusal of reasonable employment is for good and reasonable cause is a question of fact. Questions of fact are committed to the discretion of the WCAC. In the absence of fraud, the WCAC's findings of fact are binding on the courts of this state if there is any competent evidence supporting them.
And formerly, as in this case, the WCAB.
II
It is undisputed that plaintiff suffered a compensable injury to her wrist in August 1984. It is also undisputed that she suffers an ongoing total disability.
Plaintiff's injury initially caused her to miss five days of work. She eventually returned to her job and worked until March 1985 with various medical restrictions. Her last day was March 5, 1985, at which time defendant began paying benefits.
Corrective surgery was performed on her wrist that March, but she never regained the complete use of her hand. After the surgery she saw several doctors and therapists, but could not return to work because defendant failed to offer work suitable to her medical restrictions. Plaintiff regularly called defendant regarding the availability of work. Defendant regularly informed her that none was available.
Plaintiff's treating physician concluded that she was permanently disabled in October 1985. Unhappy with this diagnosis, defendant sent her to one of its doctors. Defendant's doctor examined her and placed her on disability for six additional weeks.
Approximately six weeks later, plaintiff returned to work and received "favored work" — sweeping floors. She quickly discovered, however, that she could not perform this job without aggravating her wrist. Defendant and plaintiff's union came to an agreement, and plaintiff was sent home that day with the understanding that defendant would continue to pay benefits.
On May 27, 1986, defendant sent plaintiff to see another doctor. That doctor concluded that plaintiff could not return to her former job and that it was very likely that she was permanently disabled.
Shortly after this diagnosis, and after having tried to secure work within her restrictions for well over a year, plaintiff decided to move to Florida. This allowed her to be closer to her family, and she believed the warm weather was better for her wrist. On June 27, 1986, she notified defendant in writing that she was moving and that any further correspondence could be directed to her new address in Florida or to her attorney. Plaintiff sold all of her belongings and left.
Both the WCAB and Court of Appeals noted an unfortunate communication problem between the parties that led to defendant's failure to realize that plaintiff had permanently relocated to Florida.
In a letter mailed July 15, 1986, and received July 28, 1986, defendant notified plaintiff that a job within her restrictions was now available. After first stalling for time to consult her attorney, she eventually rejected this offer because she now considered herself a permanent resident of Florida. Defendant stopped paying benefits and plaintiff began this action.
Defendant failed to place the proper postage on the letter.
At the hearing, the magistrate held that plaintiff's refusal of defendant's bona fide offer of "favored work" was reasonable. On appeal, the WCAB affirmed.
It is clear that this case should have focused on the statutory requirements of reasonable employment because this case is governed by MCL 418.301(5); MSA 17.237(301)(5). For the purposes of this opinion, however, we will ignore this error.
[W]e find from the facts that plaintiff had relocated to Florida in June of 1986 and intended to stay in Florida on a permanent basis. Plaintiff was attempting to seek work in Florida, had signed a lease with the condominium association, and was reliant upon family members as she had sold all of her possessions prior to leaving Toledo, Ohio. We find that plaintiff was credible in her testimony and accept that she planned to reside in Florida on a permanent basis. The record discloses that there was nothing to her knowledge that would have her return to Michigan since at the time of her move she did not know that defendant was seeking favored work for her. [Unpublished decision of the WCAB, mailed December 20, 1990 (Decision No. 1617), slip op at 6.]
The WCAB concluded, as did the magistrate, that defendant had made a bona fide offer of "favored work," but that plaintiff's refusal was reasonable.
Defendant appealed, again arguing that plaintiff's refusal was unreasonable. Plaintiff failed to cross appeal on the issue whether the job offer was a bona fide offer of reasonable employment. A divided Court of Appeals reversed the WCAB.
The only disputed issue properly before us in this appeal is whether plaintiff unreasonably refused
defendant's bona fide offer of favored work. We conclude that the appeal board's decision that plaintiff is entitled to continuing benefits because her refusal of favored work was reasonable is based on an error of law and should therefore be reversed.
* * *
[I]t is clear that, inasmuch as plaintiff did not have employment in Florida, her choices, when favored work was offered by defendant, were to accept such work or have her disability benefits terminated. Any other resolution would be contrary to the purpose of the act, as interpreted by our Supreme Court and as enacted, in acquiescence to that interpretation, by the Legislature. [
196 Mich. App. 91, 93-94;
492 N.W.2d 778 (1992). Citation omitted.]
Dissenting, Judge WAHLS held:
The WCAB found that plaintiff intended to reside in Florida permanently and that she had been seeking employment there. These findings are supported by competent evidence on the record and no fraud has been alleged. This Court may therefore not disturb those findings. . . .
* * *
I would affirm the WCAB's conclusion that the plaintiff's refusal was for good and reasonable cause. [
Id. at 95-96. Citation omitted.]
III A
The Legislature partially codified the judicially created favored-work doctrine in the reasonable employment provisions of the worker's compensation act. MCL 418.301; MSA 17.237(301), and MCL 418.401; MSA 17.237(401). However, these provisions are far more than a simple compilation of this Court's prior favored-work decisions. While building on some of those decisions, some of these provisions have significantly changed others. Although the Legislature has made significant changes in the favored-work doctrine, this Court need not ignore all of its prior favored-work decisions in their entirety.
1981 PA 200 and 1981 PA 199, respectively.
Obviously, if there is a conflict between the common law and a statutory provision, the common law must yield.
For example, it is a well-established rule of statutory construction that the Legislature is presumed to be aware of judicial interpretations of existing law when passing legislation. Dean v Chrysler Corp, 434 Mich. 655, 667, n 18; 455 N.W.2d 699 (1990). Therefore, when the Legislature codifies a judicially defined requirement without defining it itself, a logical conclusion is that the Legislature intended to adopt the judiciary's interpretation of that requirement.
This conclusion is also supported by the associated rule of construction that provides that words and phrases that have acquired a unique meaning at common law are interpreted as having the same meaning when used in statutes dealing with the same subject. Thornton v Allstate Ins Co, 425 Mich. 643, 648; 391 N.W.2d 320 (1986); MCL 8.3a; MSA 2.212(1). The statutory requirement of "good and reasonable cause" is analogous to the common-law requirement of "good faith or reasonableness." Bower v Whitehall Leather Co, 412 Mich. 172, 178; 312 N.W.2d 640 (1981). The statutory requirement is too similar to the common-law requirement to be dismissed as coincidence.
Applying these basic rules of construction to the statute at hand, we think it obvious that the Legislature did not, nor did it intend to, change the common law for this specific requirement. Accordingly, we turn to an examination of the common law.
B
This Court examined an offer of favored work and the reasonableness of its refusal in Kolenko v United States Rubber Products, Inc, 285 Mich. 159; 280 N.W. 148 (1938). In that case, the plaintiff suffered a compensable injury to her arm. After paying compensation for a short period, the defendant stopped. The plaintiff sued, and at the subsequent hearing the defendant alleged that the plaintiff had refused an offer of substitute employment.
The offer was in the form of a request by the defendant that the plaintiff come to the plant where she would be given work. The plaintiff, accompanied by her attorneys, went to the plant to see what type of job the defendant intended to give her. The defendant, however, refused to provide any details of the job. The defendant also refused to allow the plaintiff's attorneys into the plant to determine whether she was capable of performing the unspecified job.
The defendant maintained that these events demonstrated the plaintiff's unreasonable refusal to cooperate with the defendant. Thus, the defendant argued, her benefits should be denied. This Court flatly rejected the defendant's argument that the plaintiff had acted unreasonably.
The burden was on the defendant to show that it offered plaintiff work which she could perform. . . . Plaintiff was under no obligation to comply with the unreasonable and arbitrary demand
of defendant that she accept whatever work the company thought suitable for her. Plaintiff in her attitude and conduct with regard to the proposed job clearly appears to have been actuated by good faith. The law does not compel her to submit to the capricious dictates of an employer with regard to the kind of work she must accept in order to show cooperation. The only lack of cooperation that appears from the record in this case is on the part of defendant. [
Id. at 162.]
The Court held that the actions of both the employer and the employee must be judged against standards of good faith and reasonableness. This type of analysis suggests that these questions are questions of fact and, as such, they are committed to the discretion of the factfinder. The Kolenko Court said as much when it held:
The findings of fact of the department were supported by evidence and according to the provisions of the statute are conclusive. These, together with the conduct of defendant regarding plaintiff's reemployment, require that the award of the department of labor and industry be affirmed, with costs to plaintiff. [
Id. at 163.]
The Court reached this conclusion by examining the conduct of the parties. An examination of the conduct of the parties is, by its very nature, a factual examination.
The Kolenko decision was essentially reaffirmed by this Court in Bower, a case decided only weeks before the enactment of 1981 PA 200. In Bower, the plaintiff suffered a compensable work-related injury. Aggravations of the injury over a span of three-years resulted in the plaintiff quitting his job and moving to Florida. The plaintiff found suitable employment in Florida, but was notified by the defendant nine months after his arrival there, and on the eve of trial, that favored work was now available at the defendant's plant in Michigan.
This Court held that the primary purpose of the favored-work doctrine is mitigation. The common-law doctrine of mitigation is founded on reasonableness, and application of a reasonableness standard requires the factfinder to examine the facts and circumstances of each case. The reasonableness of the employee's actions as well as the employee's good faith, or lack thereof, are factors that must be considered in determining whether the employee's refusal of favored work will result in a forfeiture of benefits.
This Court is presently examining the issue of mitigation in Marquis v Hartford Accident Indemnity, 444 Mich. 638; 513 N.W.2d 799 (1994). In that opinion, Justice GRIFFIN, writing for the majority, observes that mitigation also plays a similar role in the no-fault automobile insurance act:
This policy [of mitigation] promotes cost savings for consumers as well as insurers by encouraging those injured in an auto accident to rehabilitate themselves. . . . Reasonableness is the touchstone of this obligation and, ordinarily, reasonableness of mitigation is a question for the factfinder. [
Id. at 655.]
In reaching our decision, we find that the good faith or reasonableness of a worker's actions must be taken into account in determining whether the forfeiture penalty should be imposed, and, further, that factors other than those relating to the physical capacity to perform favored work may be considered in assessing the reasonableness of the refusal. [
Bower at 178-179.]
Refusal is justified if it is reasonable and furthers the policies underlying the act.
In applying this standard in Bower, this Court held:
Denial [of benefits] would encourage an injured
worker to stagnate, awaiting the possibility that the original employer might offer a job sometime in the future. Certainly the employee would hesitate to seek or accept a job in another city, when he or she could be faced with the no-win choice of incurring the expense and emotional upheaval of returning or suffering a cutoff of benefits.
Denial would also discourage employers from hiring disabled workers. Few employers would be willing to take the risk of employing, and perhaps retraining, injured persons, only to have them forced to quit when called upon by the former employer. [
Id. at 192-193.]
This Court noted that allowing Bower to collect benefits could encourage injured workers to move away, in an attempt to avoid having to accept favored work while continuing to receive benefits. However, the high cost of relocation, both financially and emotionally, makes this an unlikely danger. Furthermore, this Court realized that the "rare" employee who moves in a bad-faith effort to avoid having to accept favored work would be denied benefits.
This Court emphatically rejected a blanket rule denying benefits whenever an employee moves away from the locale of the employer. "[A]n employer should [not] be able to exert such control over an individual without an assessment of the unique factors in each case." Id. at 194.
Bower, like Kolenko, makes clear that the reasonableness of an employee's actions are questions of fact. Although not made explicit in Bower, this proposition permeates the entire discussion in that case.
[F]actors other than a claimant's physical ability to perform the work may be taken into account in assessing the reasonableness of the refusal, our function as a reviewing court is
extremely limited. The findings of fact of the WCAB are
conclusive in the absence of fraud and will not be disturbed if supported by competent evidence in the record. [
Id. at 197. Emphasis added and citations omitted.]
Such a finding was explicitly made by the WCAB in Bower, an opinion this Court affirmed. Chairman Gillman, writing for a unanimous appeal board, stated:
[T]he dispositive questions are not ones of law but of fact: Was the offer reasonably made, or was it a ploy to avoid payment of benefits? Was plaintiff's refusal to accept the offer reasonable under the circumstances? [1977 WCABO 3920, 3921.]
C
Given the timing of Bower, decided November 23, 1981, some may question the effect it may have had on the reasonable employment provisions of the worker's compensation act that took effect January 1, 1982. That question need not be answered here. Bower does not represent a change in the law; rather, it represents a consolidation of the favored-work doctrine. It solidified and made clear that a reasonableness analysis must be undertaken when examining an employee's refusal of favored work. This conclusion was not, and is not, revolutionary. This type of analysis has been a part of the favored-work doctrine since Kolenko was decided over fifty years ago.
See Li v Feldt (After Second Remand), 439 Mich. 457, 472; 487 N.W.2d 127 (1992) (opinion by CAVANAGH, C.J.), stating that the date a law takes legal effect is the relevant date for interpretive purposes.
The Legislature incorporated this Court's common-law requirement of reasonableness into the worker's compensation act when it mandated that a refusal of reasonable employment must be for good and reasonable cause. This requirement, as developed in Kolenko and Bower, calls for case-by-case analysis.
In determining whether a refusal of reasonable employment is for good and reasonable cause, the dispositive questions are questions of fact, not law. Findings of fact in worker's compensation proceedings, if supported by any competent evidence, are conclusive on the courts of this state in the absence of fraud or unless otherwise provided by law. Const 1963, art 6, § 28; Holden v Ford Motor Co, 439 Mich. 257, 262; 484 N.W.2d 227 (1992); MCL 418.861a(14); MSA 17.237(861a)(14).
We do not attempt to define what "good and reasonable cause" is. What is reasonable in one situation may not be in another. Therefore no exhaustive definition could ever be formed to encompass the varied nuances of such a deceptively simple legal principle as "good and reasonable cause." The case at bar does, however, provide examples of some of the factors that may be considered in gauging the reasonableness of an employee's actions.
Those factors may include: (1) the timing of the offer, (2) if the employee has moved, the reasons for moving, (3) the diligence of the employee in trying to return to work, (4) whether the employee has actually returned to work with some other employer and, (5) whether the effort, risk, sacrifice or expense is such that a reasonable person would not accept the offer.
An attempt to avoid accepting a bona fide offer of reasonable employment by moving would never constitute good and reasonable cause.
We provide these factors merely as examples. Not every personal consideration will constitute good and reasonable cause entitling an employee to continued benefits after a refusal of an offer of reasonable employment. It is left to the sound discretion of the factfinder to carefully examine the facts and circumstances of each case to determine what is good and reasonable cause in any given situation.
IV
The date of injury in this case is after the effective date of MCL 418.301(5)(a); MSA 17.237(301)(5)(a); therefore, that statute controls.
Whether this Court believes that plaintiff's refusal of the offer was for good and reasonable cause is immaterial. Our only concern is whether the WCAB applied the correct legal test and whether there is any competent evidence to support its factual findings.
Even though the WCAB failed to substantively develop its analysis, it did apply the correct legal test.
The question before us is whether a good-faith bona fide offer of favored work was made by defendant and whether plaintiff reasonably refused to perform the offer of favored work if such offer was reasonable.
Bower v Whitehall Leather Co, 412 Mich. 172 (1981),
Powell v Casco Nelmor Corp, 406 Mich. 332;
279 N.W.2d 769 (1979), and
Kolenko v U S Rubber Products, Inc, 285 Mich. 159 (1938). In the case at hand, we find that plaintiff was not unreasonable in her refusal to return to Michigan from Florida to perform a bona fide offer of favored work. [Unpublished opinion of the WCAB at 5.]
Furthermore, a review of the record indicates that there is competent evidence to support the WCAB's factual findings. The evidence shows that plaintiff called defendant repeatedly over a one-year period inquiring into the availability of work suited to her physical limitations. There was evidence that she tried to return to work as demonstrated by her failed attempt to perform the sweeping job. The WCAB found as a matter of fact that plaintiff was credible and that she moved to Florida in a good-faith effort to improve her health, be closer to her family, and to find suitable work. She signed a one-year lease and paid a security deposit, thus substantiating her claim that she intended to live there permanently. Significantly, the WCAB found, again as a matter of fact, that plaintiff did not move to avoid accepting the job offer.
V
We hold that "good and reasonable cause" is the statutory equivalent of the same requirement found in the judicially created favored-work doctrine. Whether an employee's refusal of an offer of reasonable employment is for good and reasonable cause is a question of fact. Our constitution gives considerable discretion to factfinders in worker's compensation proceedings. Neither this Court nor the Court of Appeals should usurp that discretion. Because the correct legal test was applied, we hold that the Court of Appeals should not have disturbed the factual findings of the WCAB.
We reverse the judgment of the Court of Appeals and reinstate the decision of the WCAB. We remand this case to the WCAC for proceedings consistent with this opinion.
LEVIN, BOYLE, and MALLETT, JJ., concurred with CAVANAGH, C.J.