Cross v Perfection Associates, Inc., 2013 ACO #95

The Michigan Compensation Appellate Commission recently issued a decision following the plaintiff’s appeal in the case of Cross v Perfection Associates, Inc.

At trial, Magistrate Tjapkes found that the plaintiff suffered a crushing injury to her left arm on April 26, 2011 and had an average weekly wage of $250.16.  However, he did not award the payment of weekly wage-loss benefits on the theory that the “disability” was not causally related to the injury because the plaintiff had not engaged in an appropriate job search.  Namely, she did not make an adequate effort to find subsequent employment post-injury.

The plaintiff advised the defendant’s expert vocational witness that she did not believe she should be looking for a job because of her injury, and she listed restrictions on her resume.  At trial, she testified that when she contacted a prospective employer, her first two questions were “are you hiring?” and “how much does it pay?” (according to her resume, she was seeking $18.00 - $20.00/hour to start).  Finally, according to the job search log submitted at trial, she did not start looking for work until 16 days before trial began.  According to the Magistrate and the MCAC, this did not constitute a good faith job search under the Act.

In support for his decision from a factual standpoint, the Magistrate stated, at page 29 of his Opinion:

I am also not persuaded that plaintiff made a genuine effort to find employment.  She certainly provided evidence that she put in applications at various places.  But even able-bodied people have to do more these days to secure employment.  Plaintiff limited her independent efforts to putting in her resume at Michigan Works, which is hardly a hotbed of employment possibilities.  Otherwise, she seems to have only contacted either places suggested by defendant’s vocational expert, which would have been information received after a delay under the best of circumstances, or a rather random sampling of local retailers and restaurants…Plaintiff also admitted she did not try to find work for some time.

When the December 19, 2011 amendments were ratified, we opined that the court’s definition of what constitutes a “good faith job search” would become a hot issue in the months and years ahead.  We will continue to monitor future decisions as this definition is refined, as well as monitor the anticipated future appeal of Cross.