*1 1971]
HITE v. EVART PRODUCTS COMPANY op
Opinion the Court Compensation Compensation —-Workmen’s Act— 1. Workmen’s Construction. statutes, Compensation Act, should be as other The Workmen’s light purpose in reasonably construed of the which it pur- accomplish; a court must determine the act’s seeks first pose apply test of reasonableness. then Compensation Compensation 2. Workmen’s Act— —Workmen’s Purpose. theory Compensation Workmen’s Act is that consuming public public, charity, private, must foot injuries. the bill for work-incurred Compensation Compensation 3. Workmen’s —Workmen’s Act— “Compensation” —Construction. “Compensation”, as in Compensation Act, found the Workmen’s sense; must be in carry understood its broader in order to legislative intent, light out the the Act must be in construed objectives purposes. its humanitarian and beneficent Compensation “Weekly Wages” 4. Workmen’s — —Economic Gain —Construction. Weekly “wages” “earnings” used the Workmen’s Com- pensation upon compen- Act as the basis which the amount of computed, is all compensation sation includes items of advantage agreed upon in the contract for hire which are money, measurable whether the form of cash or as an gain employee (MOLA economic §412.11). [2] [4] [5-7,15] [9] [8] [1, [10-14] 43 Am 58 Am Am58 58 Am Am Workmen’s 58 Am Jur, Jur, Jur, Jur, Am Jur, References Jur, Workmen’s Public Officers 369. Workmen’s Workmen’s Jur, Workmen’s Compensation Compensation Compensation Compensation Points Compensation § §§ § Heaknotes 2. 308. §§ 26-31. §§ 328. 308-310. Compensation Weekly Wage Employer’s 5. Workmen’s — — Pen- Payment. sion weekly wage A workmen’s claimant’s includes an *2 money put weekly by her employer amount aside into a pension employee though fund for the benefit the even employee only the would obtain a vested in fund interest the years employment, after employee ten the worked for the employer years, for employee two and the did not eon- fund, tribute to the because credits to fund the reflect the employee’s and, therefore, services and wage worth increased capacity; employee’s injury the requires her to make other provisions (MCLA §412.11). for retirement Compensation Weekly Wage Employer 6. Workmen’s — — Contri- to bution Insurance Premiums. compensation A weekly workmen’s wage claimant’s includes weekly by employer amounts contributed pre- towards the covering employee; mium on insurance the the fact that employee chose premium not to her share of the after her injury not given occurred does mean that she should not be wages for form (MCLA 412.11). credit of increased § Compensation Weekly Wage 7. Workmen’s — —Vacation and Holi- day Pay Weekly— Credit. compensation weekly A wage workmen’s claimant’s includes holiday amounts set aside for vacation and portion holiday computed that or vacation pay to be earned week, in a holiday pay something because vacation and are employee earned each week of work to be en- joyed and, in the employee future because of her injury, advantage lost an recompensed which was to be and measured money (MCLA 412.11). Compensation Transportation 8. Workmen’s —Medical Services — Expenses. Compensation employer The Workmen’s requires Act that furnish injured employee; medical for services the medical obligation requires services that reimburse the employee transportation for expenses reasonable incurred securing (MCLA 412.4). medical services Employees Transportation— 9. Work and Labor —State —Private Regulations Standard Travel —Judicial Notice. Michigan Regulations The pur- Standard Travel have as their pose providing reimbursement, loss, gain state provide required transportation their employees who are own 24.80). (MCLA [h], 18.4 §§ Compensation Services —Private Trans- 10. Workmen’s —Medical Regulations. Expenses portation Travel —Standard expenses incurred for the travel The rate of reimbursement using private compensation by a claimant when workmen’s transportation receive medical treatment the covered Regula- injury the Standard Travel is the rate set forth designed Regulations Travel tions, the Standard are because gain (MCLA 412.4, reimbursement, not provide loss §§ 24.80, [h]). 18.4 Transporta- 11. Services — —Medical op Transportation. Expenses Type tion — private transportation applicable rate of reimbursement expense awarded a workmen’s claimant will not be securing expense incurs such medical services for the who nothing in rec- of a covered where there is treatment public transportation at a lower indicate available ord to unreasonable; will be reimbursement rate would have been *3 public transportation (MCLA awarded for the cost of the 412.4). Compensation 12. Workmen’s Trans- —Medical Services —Public Transportation. portation —Private compensation be re- A claimant who was entitled to workmen’s securing public transportation used imbursed for the cost injury, and who was for the covered not medical treatment private on the rate for trans- entitled to reimbursement based portation was, nevertheless, reimbursement based entitled to private transportation on between rate the distance public transportation the claimant’s home and the terminal city doctor’s office and for the distance between the her and city where public transportation terminal the doctor’s unreasonable for claimant to walk these distances it was 412.4). (MCLA § Compensation Services —Meal Allow- 13. —Medical ance —Reasonableness—Factors. compensation bought by a workmen’s An allowance for meals a clinic medical treatment at who travels to receive claimant is, hospital outpatient under certain office or as doctor’s reasonable; deter- circumstances, factors to be considered are the time mining meal allowance the reasonableness of the habits, of ne- employee’s and day, travelled, distance
eessity, whether meal in fact had been (MCLA consumed 412.4). Compensation 14. Workmen’s —Medical Services —Meal Allow- ance —Reasonableness. pursuant A meal allowance employer’s medical services obligation Compensation under the Workmen’s Act will not record be allowed where the does not show that claimant even consumed one meal her travel services, for medical appointments but show her does were 4 p.m. at and that could have been she home between 6 and 6:30 p.m. (MCLA §412.). by Holbrook,
Dissent P. J. Compensation Weekly Wages 15. Workmen’s — —Vacation Holiday Pay. weekly wage A workmen’s claimant’s does in- not holiday clude and vacation aside set on money was basis where the set aside to allow claimant holidays days days off, to have certain and vacation when employer’s plant closed, paid regular still be her weekly pay, arrangement, days the vacation and the holidays coming employer’s plant when the did was closed working allow claimant work and double days off. Appeal Compensation Ap- from the Workmen’s peal Board. Submitted Division 3 7, 1970, October Rapids. (Docket 8358.) at Grand No. Decided June appeal 21, 1971. Leave to denied, 386 Mich Barbara Hite submitted claim for workmen’s compensation against Company. Evart Products appeals by granted Plaintiff leave from the deci- Appeal sion of the Workmen’s Board. cross-appeals. Defendant Decision modified. *4 McCroskey, Marcus, Libner, Reamon, <& Williams Dilley (by Welch), plaintiff. Edward M. (Edward
Gholette, Perkins & Wells, Buchanan D. counsel), of for defendant. and R. B. P. and J., Before: Burns Holbrook, JJ. J.
J. Jr.,* Kelley, August, received 1960, In J. Kelley, which, of the course of and arose out which caused by and employment defendant, had hand. She her left use of loss of industrial Disputes support. dependent her for on children six average plaintiff’s the amount over arose mileage entitled to wage whether she as to and travelling neces- secure to allowances meal and sary care. medical al- hearing to consider refused referee
After a totalling fringe determined leged $7.91, benefits wage average weekly al- plaintiff’s $60, expenses. part travel of the claimed lowed Appeal Compensation appeal Workmen’s On including decision Board modified the referee’s plaintiff’s wage pension average weekly the value of rejec- payments, group affirmed but insurance holiday pay. The vacation and tion the value of appeal award of referee’s board also affirmed the and awarded an additional for travel cents mile per trip as a meal allowance. granted appeal court. leave to this Plaintiff was appellate cross-appealed. Apparently Defendant court of no presented. State decided has the issues other stat- The Workmen’s Act, light reasonably utes, should be in the construed purpose Benjamin accomplish. the v. which it seeks
Huntington (1957), Woods 349 Mich purpose Our task, is therefore, to determine the apply the Act then test reasonableness. Upon pro- its enactment, the act was right claimed aas means of determination of to com- * judge, sitting Circuit assignment. on Appeals by the Court of *5 App 247 Mich 252 injuries upon for industrial of workmen pensation to the industry, relating trade risks the basis of Sheppard it of cost. part charged against be National Bank 577, 348 Mich 579. Michigan (1957), v. of is that consuming public, the act theory public must foot bill for private, not charity, Ballou injuries. Crilly (1958), work-incurred v. Mich 308. In order to out the 303, carry legislative intent and the act humani to construe its properly, and must objectives purposes1 tarian beneficent be in must be under kept mind, “compensation” sense. Munson v. Christie stood broader its 94, 99. (1935), 270
In I. determining employee’s weekly wage for the purpose workmen’s compensation should of value remuneration in the vacation pay, of form of holiday and the in- pay, employer’s contributions to surance pension plans included?
The applicable of the portion workmen’s compen- sation law2 effect in 1960 provided: “The weekly loss referred to wages in this act shall of consist such of percentage week the average ly earnings the injured employee computed ac cording to the of this provisions section as shall fair ly represent proportionate extent the impair ment of earning his in the capacity employment which he was working at the time of the injury, same to be fixed as the time of the but to injury, be determined in view of the nature and extent of * # * the injury. The compensation payable, when added his wage earning capacity after 1 Sheppard Michigan Bank, v. supra, National 582, 1948, CL present 412.11. At MCLA (Stat § 418.371 Ann § Supp Cum 17.237[371]), being Compensa tion 1969, Act of PA 317, provides No “average weekly * * * wage means weekly wage overtime, pre- inclusive of mium pay living adjustment, cost any and exclusive of fringe ** * or other benefits which continue disability Products employment, or another shall in the same earnings average weekly at the time of his exceed injury. such wage’, ‘average weekly in this act, as used term “The *6 weekly wage by earned em- the the to be is defined injury ployee at the time his but in no case less of earning.” hourly wage rate of or than 40 times his problem of a Faced with the of construction simi enlightened de court of another state lar statute, “wage” “earnings” that deemed termined must be advantage to include all items of hiring agreed upon in a of are meas contract which money, form of cash or urable in whether employee. Reynold gain an Leslie v. economic (295 (1956), 1076, 1083). P Kan 2d We approve definition. personnel manager
Testimony of defendant’s es- pursuant employment contract, to her tablished that plaintiff weekly plus her received additional dollar benefits of value as follows: payment Pension $2.60 Group insurance 2.63 1.13 Vacation Holiday pay 1.55
Total $7.91 injury. of the All have ceased because these Payment (a) Pension plaintiff’s employment her em-
For each week of pension ployer for her into a fund bene- $2.60 years employment of would fit. After ten obtained a interest in the fund. have vested argues Defendant this item should not be con- plaintiff, began work sidered who less than because nothing years injury, had two before contributed the fund and had no in it at the time of interest injury. her earning capacity who com-
pletes year employment be- tenth thus eligible pension, thereby comes denly does not sud- by peri-
increase the amount of $2.60 pension payment. contrary, during odic theOn years ten reflects the em- work week ployee’s worth, service and and therefore, increased wage capacity, accruing credits that convert to sub- sequent pension benefits. may speculate
We whether years worked full have ten for defendant had she injured. not been However, the are that at the facts injury putting time her aside potential this prevented injury benefit and that potential
a continuation of this toward a vested interest. theAs result of her she must way providing find some other income for retire- *7 pension part payment ment. The ly was a of her week- wage. Group
(b) Insurance plaintiff’s employment For each week of the de- premium fendant contributed as one-half of the $2.63 group plan provided coverage for a which insurance plaintiff. paid for the Plaintiff other half of the premium. argues
The defendant that because the pay premium has chosen her share of the after injury, given she should not be credit compensation form of increased benefits. This con- tention cannot be sustained. employer weekly pay-
Had the not made these plaintiff, provide pro- ments, in order to the same required pay premiums tection, would have been therefor payments out of her own funds. These plaintiff’s defendant are likewise included in wage. Products Hite Pay Holiday and Vacation (c) a one-week and for holidays on seven Each year would close hut company defendant period, vacation An weekly pay. the usual employees its into dollars translated company defendant official which plain- and holiday the vacation cents and check. her weekly pay addition to received tiff week. was $2.68 The total of her part items represent claims these
Plaintiff actually which she days for the on should he included. therefore, worked, and, to include these items would says Defendant if base than she larger wage allow plaintiff be to and were still employed by injured had not been com- give and would her double defendant, actually holidays. for vacations pensation gears job employee usually obtaining Upon plans and future obligations monetary his recompense. holiday pay Vacation of his total a pension. in the same class as be considered must in- future. In each an employee’s All three involve he worked week the every stance to be something enjoyed earned future. time the did not work
If any particular at therefor, holiday, yet paid on vacation she had thereto, that, prior reason it was time under the terms of her free earned with her at the rate of working agreement week. work could look she continued she long As *8 free time each Her year. forward days prospect. pleasant obliterated this cannot be with a equated A these day such as day unable to work and en- physically on which she is and for which she receives com- pursuits other joy less amount than substantially pensation Mich injured. wages if had not been In could earn she she advantage respect, plaintiff an also lost which this recompensed employment contract under the day money. measurable Nor can such be equated day for with a which receives lay-off.3 compensation on Holiday and vacation credits have in- should been determining plaintiff’s average weekly cluded in wage. weekly hourly earning, Plaintiff’s rate $60, plus fringe totalling per benefits made week, plaintiff’s average weekly wage the sum of $67.91 expenses
II. Should he allowed travel at per trips 8 cents mile and a meal allotvance taken care¶ to receive medical (Stat 17.154) MCLA 412.4 Ann 1968 Rev re quired that “The shall furnish, cause **# surgical furnished, medical, reasonable hospital services medicines other attend recognized by ance treatment the laws of this legal, they state as when are needed”.
(a) Mileage
Plaintiff received medical treatment at Evart and Rapids. at practical Grand There was no form of public transportation over the miles from 18-1/2 points her home to Evart. Between these she made trips via automobile, total 3996 miles. the cost of presented Plaintiff no evidence as travel. arbitrarily
The referee allowed 8 cents mile. appeal board confirmed on the basis that did not exceed the 9 cents mile then allowed state employees under Regulations. the Standard Travel parties Corporation Both General Motors cited Unemployment Compensation Commission (1951), 331 authority contrary positions. their *9 257 injury, 15 Rule of the Workmen’s At the time required Compensation Department Rules the em- ployer expenses to travel incident to em- ployee’s examinations treatments. expenses
Defendant claims that travel do not con- expenses medical and that an stitute allowance of per improper. 8 mile cents is It that the Fed- states government eral 5 cents a allows mile com- puting expenses deductible medical for income tax purposes compute that and, further, to deductions govern- for an automobile used in business, same taxpayer ment allows to use “the mile- standard age per rate 15,000 cents mile for the first miles and 7 cents in excess thereof”. furnishing requires of medical act serv-
The injured employee nothing were un- If an less. ices— transpor- required money reasonably to out then receive services tation to these something receiving than that which he less present requires. the act Under the circumstances plaintiff require here it would be to unreasonable expense travel 37 at her own each miles to receive medical treatment at Evart. judicial
We take notice this state’s Standard Regulations having Travel and of their been de- signed provide gain reimbursement, or loss, employees required provide to state who are their transportation. (Stat 18.4(h), §§ own MCLA 24.261 3.560[161]). §§ Ann In 3.516[4][h], the absence any specific they showing unreasonable, that we are adopt receiving here med- them. While regulations ical treatments allowed cents these trips is mile for travel. For Evart she en- totalling titled 9to cents mile, $359.64. trips
Via took 28 automobile round Rapids. medical record es- treatment to Grand City, tablishes that she lived from miles Reed 5-1/2 public transportation bus—was that available —a Rapids, from there to Grand it was miles place from treatment the bus station in *10 Rapids. plain- already paid Grand Defendant has trip tiff the fare round via bus between $5.45 City Rapids Reed terminal. and Grand Since bus nothing suggesting the record contains even that such travel bus would have been unreasonable, plaintiff is allowed for each of 28 $5.45 these trips, against round which is credited the $5.45 trip. which defendant for each expect It be would unreasonable to that would City have walked between her home and Reed hospital and between the bus station or doc- Rapids. points tor’s officein Grand Between these Rapids on visits to Grand she travelled miles via automobile, for which she is entitled 9to cents mile.
(b) Meal Allowances appeal
The board for a allowed meal plaintiff’s trips Rapids. each of to Grand By country par- generally custom residents this fairly regular take of three at meals intervals each day. Without doubt the here and the claim- employer- ants other similar cases have received in-patients. hospital furnished meals while Pre- sumably employers believe it unreasonable object thereto. Under certain it circumstances grant would be reasonable to a meal allowance injured employee who travels to receive medical treatments at a clinic doctor’s aas hos- office, pital out-patient. Some of the circumstances which would determine reasonableness would be the time day, employee’s distance travelled, the habits, and, necessity, whether a meal had fact been con- grant sumed. It is not reasonable to a meal allow- that someone other than the the sole basis anee on employee will bill. foot the plain- record in case does not that
The show one tiff consumed even meal her travels Rapids, that but does show she herself Grand sched- appointments p.4 m. and uled that she could city from have returned home between being 6:30 o’clockin the afternoon. There no facts reasonably which inferences established that she partook of no allowance for it food, should have Corpora- been made. Coates v. Continental Motors (1964), tion Compensation Ap- of the decision
peal Board is modified as indicated herein. Ño party having fully prevailed. costs, neither R. B. Burns, J., concurred. *11 (concurring part P. in J. and dissent- Holbrook,
ing part). It is with this reluctance that writer anything excellently-written opinion adds to the Judge expression Kelley. The reason for the upon depart views herein is based desire to construing from the Workmen’s Act liberally for the benefit of the claimant herein, but holiday pay because it is difficultto visualize and va- pay pay cation weekly earnings as in addition to the of the claimant. Judge points
Now it is true, Kelley out his opinion, company well-written the aside set per holiday pay week $2.68 and vacation for the pen- herein. However, this was not like the sion fund or insurance fund which was set aside every week in weekly pay addition to the for the benefit per of the claimant. The week $2.68 was set aside holidays to allow the claimant have certain days paid vacation off from work and still to be wages paid regular weekly pay. The to the
the writer understands were on the it, as this claimant, hourly rate. hours week at the of 40 This basis year period of 52 weeks and in the is for the each holiday event there was one the the weeks, days, although would be for five she only working days. during four Likewise, shop the that she was on when the week vacation shut the that had been down, set aside each $2.68 year week the would be used to take care of arrange- paying her for this vacation time off.1 Such by ments are commendable whether contract or voluntary arrangement employer between the employees providing good in the interests of relationship. employer good from benefits relationship pay employee any but it does not pay. more than 52 weeks of In other words, holidays claimant does have off vacation time holidays from If work. the claimant worked on the for the onor off vacation time for the employer, say then this writer could that it should majority opinion be included as the does so include arrangement provide it. However, does not pay during holiday double time off or double during vacation off, time and in the absence of such arrangement, this writer dis- is constrained to part prevailing opinion sent from that of add- ing compen- figure week base payments Compensa- sation under the completely tion Act. This writer concurs with balance prevailing of the decision contained opinion. majority
that were not employees’ wages concurs), $2.68 per This practice week to the actual opinion i.e., insurance and actually paid. based *12 does not addition being on the included increase the wages paid, pension benefits, The other benefits as wages employee’s wages. rate. we would in effect add employer’s However, were (to considered which this writer actually gross amount of if we add the wages out