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Swafford v Bronson Methodist Hospital 12.80

Section 29(1)(b)

MISCONDUCT, Insubordination, Medical test

CITE AS: Swafford v Bronson Methodist Hospital, Allegan Circuit Court, No. 96-19617-AE (September 23, 1996); lv den Mich App No. 198426 (March 25, 1997)

Appeal pending: No

Claimant: Dean J. Swafford

Employer: Bronson Methodist Hospital

Docket No. B94-10537-133439W

CIRCUIT COURT HOLDING: Claimant's conduct cannot be found to evince wilful or wanton disregard of the employer's interest where the record does not establish that the spirometer test did not contravene the advice of the employee's physician or that he did not reasonably and in good faith believe that compliance would jeopardize his safety.

FACTS: Claimant worked as a security guard in the employer's parking lot. In October of 1993, the claimant began working inside as a greeter due to a respiratory problem. Exhaust fumes and cold temperatures irritated his respiratory system causing illness. The claimant was off work part of January due to illness. The employer arranged for the claimant to undergo a spirometer test to determine which temperatures the claimant could tolerate. The employer's physician initially secured permission from the claimant's physician to perform the test. Later the claimant's physician withdrew his permission due to concern over subjecting the claimant to adverse conditions. Claimant's physician gave the claimant a note restricting him from taking the test. The claimant attempted to submit the note to the employer, but it was refused. On February 21, 1994, the employer made taking the test a condition of employment. Claimant refused and the employer discharged him.

DECISION: The claimant is not disqualified for benefits under Section 29(1)(b).

RATIONALE: Employee refusals to comply with an order are justified where such order contravened the advice of the employee's physician or where the employee established he reasonably and in good faith believed that compliance would jeopardize his safety. The claimant testified his physician advised him not to take the test. This was confirmed by the testimony of the employer's physician. The testimony of the employer's physician established the test was potentially dangerous, since he intended to test the claimant ten feet away from an emergency room in case of problems.


24, 16,d22: N/A

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