SIMKINS V GENERAL MOTORS CORPORATION (AFTER REMAND)
Docket No. 102150
Supreme Court of Michigan
Argued October 10, 1996. Decided December 30, 1996.
453 Mich. 703
In an opinion by Justice RILEY, joined by Chief Justice BRICKLEY, and Justices LEVIN, CAVANAGH, BOYLE, and MALLETT, the Supreme Court held:
Under the Worker‘s Disability Compensation Act,
1. An employee who seeks worker‘s compensation must show by competent evidence not only the fact of an injury, but also that the
2. When an employee is going to work or coming from work, an injury that occurs on property not owned, leased, or maintained by the employer is in the course of employment if the employee is traveling in a reasonably direct route between the parking area owned, leased, or maintained by the employer and the worksite itself. However, there is no recovery for an employee who is injured on a public street or other property not owned, leased, or maintained by the employer while traveling to or from a nonemployer parking lot because this injury is not in the course of employment. Recovery is limited to a situation in which the employer has some control or responsibility over the area, i.e., when it anticipates that employees will travel between the worksite and the parking lot it provided because it has implicitly created or designed a path for its employees.
3. In this case, the plaintiff originally drove to a parking lot maintained by the defendant, left the lot, and traveled to a private lot with a coemployee before traveling to her worksite. The stipulation is silent regarding her reason for traveling to the private lot and does not explain whether this was a reasonably direct route from the employer-provided lot to her worksite, requiring remand to the WCAC for further proceedings.
Vacated and remanded.
Justice WEAVER, concurring in part and dissenting in part, stated that the reversal by the Court of Appeals of the Worker‘s Compensation Appeal Board‘s decision to award plaintiff worker‘s compensation benefits should be affirmed. The case should not be remanded to the WCAC for further fact finding because the standard articulated by the majority, that an employee does not suffer an injury that occurred in the course of employment while traveling to work, when injured on a public street, not maintained by the employer, while walking from a private parking lot to the worksite, was appropriately applied by the Court of Appeals to the facts as stipulated by the parties.
208 Mich App 453; 528 NW2d 775 (1995) vacated.
Hanba, Lazar & Ackerman, P.C. (by Michael D. Smith), for the plaintiff.
John R. Parnell and Warren C. Droomers for the intervening plaintiff.
Groves, Decker & Wyatt (by Harvey R. Groves) and Braun, Kendrick, Finkbeiner, P.L.C. (by Scott C. Strattard), for General Motors Corporation.
AFTER REMAND
RILEY, J. In this appeal, this Court is asked to clarify when an employer has an obligation to pay worker‘s compensation to an employee who is injured while traveling to work under the “going and coming” provision,
FACTS AND PROCEEDINGS
The parties stipulated the facts of the case. Because the parties dispute what reasonable inferences may be drawn from the stipulation, we provide the full text of the stipulation:
Elizabeth A. Simkins is an employee of the Fisher Body Flint Plant of General Motors Corporation. She worked on the first shift, which started at 6:18 A.M.
At some time before 6:00 A.M. on September 4, 1984, Mrs. Simkins drove her car to the Fisher Body Flint Plant and parked on the Fisher Body premises North parking lot. She exited her car and, after an unknown period, got into the car of a fellow employee, Perry Mitru. They drove onto Saginaw Street, a public street bordering the east side of the Fisher Plant, headed south to Hemphill and turned right, or west, onto Hemphill. Hemphill is a public street bordering the Fisher Plant on the south side. It has four lanes, two each for west and east bound traffic.
Mr. Mitru drove his car into a privately owned parking lot on the south side of Hemphill and parked. He and Mrs. Simkins alighted and, after paying the parking attendant, started across Hemphill to the Plant Gate at Post 11. The lot in which Mr. Mitru parked was located almost directly across the street from the Plant Gate and about in the middle of the block.
At about 5:58 A.M., twenty minutes before her shift was to start, Mrs. Simkins was struck by an automobile driven by Tonya D. Anderson. At the moment that she was struck, Mrs. Simkins was going north across Hemphill and was in the east bound inside lane near the double yellow center line.
The parties agree that this Court must rely on this stipulation alone in order to resolve whether plaintiff‘s injury arose out of and in the course of her employment.
On August 21, 1985, plaintiff, through her guardian Thomas Simkins, filed an amended petition seeking worker‘s compensation under § 301 of the WDCA against defendants General Motors and the Second Injury Fund.1 There is no dispute that plaintiff suffered severe, permanent injuries, including a closed-head injury, that resulted in weakness in her arms and legs. She cannot walk without the aid of a walker or wheelchair. In an opinion dated April 11, 1986, the hearing referee concluded that plaintiff was eligible for worker‘s compensation:
[Plaintiff] had entered the “premises” [of General Motors] when she entered the company-owned parking lot. The mere fact that she was given a ride to a closer, non-company lot, did not remove her from the scope of her employment. The injury sustained when crossing the street to the plant gate is compensable.2
In an opinion filed on June 26, 1991, the WCAB, in a two-to-one decision, affirmed the referee‘s ruling to award plaintiff worker‘s compensation benefits:
We find that plaintiff‘s slight deviation in her route from one parking lot controlled by defendant to another not controlled by defendant, but directly across the street from the plant entrance, kept plaintiff within the zone, environment, and hazards of her employment. [1991 WCABO 1399, 1412.]4
Ancillary to compensability is the claim for nursing services. Medical testimony and plaintiff‘s own testimony show a continuing need of such care as is being presently provided by the automobile insurance carrier. This remains the responsibility of the employer[,] and General Motors Corporation is ordered to ascertain that such care continues to be provided, and, if it is not paid for by the other insurance, to pay for said care until further order of the bureau. [Emphasis added.]
Thus, it appears that according to this ruling General Motors would only be responsible for plaintiff‘s medical expenses if Valley Forge did not pay for them.
The parties agree that plaintiff is totally and permanently disabled. In the event that a final appellate determination is made that the disability is work-related, the Second Injury Fund will voluntarily pay differential benefits in accordance with the [worker‘s compensation] act on a [total and permanent] date of October 18, 1989.
I find that defendant‘s provision for an on-premises parking lot which was not shown by plaintiff to deny any reasonable safe access to its plant, with her leaving those premises to park in an undesignated private lot and to cross a street not shown to be under defendant‘s control or the protection against street traffic presumably provided by defendant‘s parking lot, placed plaintiff beyond the “zone, environment and hazards” of defendant‘s premises, thus depriving her of the presumption afforded by Section 30[1](3) of the Act. [Id. at 1409.]
General Motors appealed in the Court of Appeals, which denied leave.5 On September 9, 1992, this Court denied General Motors application for leave.6 On reconsideration, this Court remanded the case to the Court of Appeals as on leave granted.7
On remand, the Court of Appeals reversed the WCAB and ruled that plaintiff was not eligible for worker‘s compensation. The Court reasoned that previous Michigan cases only allow compensation for employees injured while traveling to work from a parking area maintained by the employer, not from a private parking area. 208 Mich App 453, 457; 528 NW2d 775 (1995). The Court concluded:
In this case, there was no employer connection with plaintiff‘s accident. She was injured while crossing a public
onstrating that she was entitled to the cost of all medical, hospitalization, and nursing care services that were being provided by her no-fault insurer, Valley Forge, from defendants General Motors and Second Injury Fund.
Plaintiff filed an application for leave, which this Court granted.8
ANALYSIS
A
Under the worker‘s compensation act,
[a]n employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act. [
MCL 418.301(1) ;MSA 17.237(301)(1) .]
It is well settled that an employee who seeks worker‘s compensation must show by competent evidence not only the fact of an injury, but also that the injury occurred in connection with his employment, arising out of and in the course of that employment. Hills v Blair, 182 Mich 20, 26; 148 NW 243 (1914). As remedial legislation, this Court construes the act liberally
The primary purpose of the worker‘s compensation act is to provide benefits to the victims of work-related injuries by allocating the burden of these payments to the employer, and, therefore, ultimately, to consumers.9 An employee who suffers an injury arising out of and in the course of his employment will be eligible for compensation regardless of whether the employer was at fault.10 In return, the employer is immunized from tort liability because the worker‘s compensation act, under
The right to the recovery of benefits as provided in this act shall be the employee‘s exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive remedy is an intentional tort.
When the workmen‘s compensation law was studied and legislatively considered, prior to and during the year of enactment (1912), it would seem that the primordial intent of all participants was that the quo to be received by the employer in return for his quid would be outright and absolute immunity from liability (except as provided in the act) stemming from each compensable injury.
As a general rule, an employee who is injured while going to or coming from work cannot recover worker‘s compensation. Bush v Parmenter, Forsythe, Rude & Dethmers, 413 Mich 444, 451; 320 NW2d 858 (1982). The statute‘s going-and-coming provision furnishes an exception to the general rule:
An employee going to or from his or her work, while on the premises where the employee‘s work is to be performed, and within a reasonable time before and after his or her working hours, is presumed to be in the course of his or her employment. Notwithstanding this presumption, an injury incurred in the pursuit of an activity the major purpose of which is social or recreational is not covered under this act. Any cause of action brought for such an injury is not subject to section 131. [
MCL 418.301(3) ;MSA 17.237(301)(3) .]
This exception only creates a presumption that the injury was “in the course of [the employee‘s] employment,” not that it “aros[e] out of” his employment under subsection 301(1).14 We, therefore, will only
B
Despite the apparent clarity of the statute requiring that the injury occur “on the premises where the employee‘s work is to be performed,” this Court has traditionally construed this phrase in a way that would allow recovery under the appropriate circumstances even where the injury occurred on property that was not owned, leased, or maintained by the employer.
The first sentence of the going-and-coming provision was first enacted in 195415 to ensure that the worker‘s compensation act would provide protections for an employee for a “reasonable time and space for the employee to approach and leave the locality or zone of his work.” Dyer v Sears, Roebuck & Co, 350 Mich 92, 95; 85 NW2d 152 (1957) (BLACK, J., plurality opinion).16 In other words, an employee‘s course of employment is not limited to the performance of the very job itself:
causal connection between the employment and the injury....” This Court has more recently stated that this analysis from Whetro was not precedential. See Dean v Chrysler Corp, 434 Mich 655, 660-661; 455 NW2d 699 (1990). Regardless, Michigan cases have not employed this distinction and have generally used the entire phrase to refer to the connection between the injury and employment. Welch, Worker‘s Compensation in Michigan: Law & Practice (3d ed), § 4.1, pp 4-1 to 4-2. We do not address this question regarding whether the two phrases require a separate test.
“The employment is not limited by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment. . . .
“The protection of the law extends to a reasonable time and space for the employee to leave the locality or zone of his work and while he is in proximity, approaching or leaving his place of employment by the only means of access thereto.” [Id. at 96-97, quoting Brink v JW Wells Lumber Co, 229 Mich 35, 37-38; 201 NW 222 (1924).]17
The substance and wording of the subsection‘s first sentence were taken from Brink, supra, and, by adopting its language, the Legislature intended to restore the state of the law as interpreted by the Court in Brink. Dyer, supra at 95-96 (BLACK, J.). The Legislature wished to remedy the situation from Daniel v Murray Corp of America, 326 Mich 1, 3; 39 NW2d 229 (1949), in which this Court had denied relief to an employee who suffered an injury in the employer‘s parking lot because he was no longer actually performing his job but rather was leaving for the day.18 Freiborg v Chrysler Corp, 350 Mich 104,
Following Freiborg and Dyer, this Court, in Lasiewicki v Tusco Products Co, 372 Mich 125, 131; 125 NW2d 479 (1963), examined a case in which an employee slipped and fell when she was leaving for lunch while she was walking on the unpaved portion of a public right of way, which was used by employees for parking cars near the plant worksite. This Court applied the going-and-coming provision under 1948 CL 412.1, the predecessor of subsections 301(1), (3), and explained that an employee need not strictly be on the employer‘s “premises” in order to be presumed to be in the course of his employment:
“One of the tests sometimes applied is whether the workman is still on the premises of his employer. This, while often a helpful consideration, is by no means conclusive. A workman might be on the premises of another than his employer, or in a public place, and yet be so close to the scene of his labor, within its zone, environments, and hazards, as to be in effect at the place and under the protection of the act.
“It is not a sufficient test that the workman should be on the premises of the employer; but it may be sufficient that he is in such a state of proximity as may be treated as a reasonable margin in point of space.” [Lasiewicki, supra at 131, quoting Hills, supra at 27-28 (emphasis added).]
From this reasoning, in Lasiewicki, supra at 127, 129-131, this Court held that the employee could recover, even though the parking area was a public right of way, because the parking area was “used and maintained” by her employer and therefore she was on the “premises of [the] employer [ ] within the meaning of the statute. . . .” Id. at 131. In this way, the Court expanded the meaning of “premises” under the statute to include more than merely the employer‘s property.
In 1980, the Legislature enacted several reforms of the worker‘s compensation act under 1980 PA 357, including an amendment of subsection 301(3), previously subsection 301(2), by adding its second and third sentences prohibiting recovery under worker‘s compensation for an injury that occurs during the pursuit of a recreational activity in order to eliminate certain “abuses” in the law. Senate Analysis Section, SB 1044, adopted as 1980 PA 357, January 7, 1981. Through these 1980 amendments, the Legislature intended to narrow and restrict the eligibility qualifications for injured workers under worker‘s compensation. Dean v Chrysler Corp, 434 Mich 655, 667; 455 NW2d 699 (1990).
Nevertheless, relying on the phrase “zone, environments, and hazards” quoted in Lasiewicki, the Court of Appeals has ruled that an employee may recover
C
Plaintiff argues that this Court‘s most recent examination of a worker‘s injury that occurred while the
In writing for the plurality, Justice RYAN did not apply the going-and-coming provision of § 301, but rather distinguished Howard v Detroit, 377 Mich 102; 139 NW2d 677 (1966),24 which had served as the basis for the holding in the first McClure decision. Justice RYAN reasoned that, unlike Howard,
In his concurrence, Justice LEVIN specifically did not rely on the going-and-coming provision to resolve the question. See id. at 218, n 18. Rather, he noted that there is an argument that an employee could recover for a lunchtime motor vehicle accident for an “off-premises injur[y]” under the logic of Haller v Lansing, 195 Mich 753, 761; 162 NW 335 (1917).26
When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going-and-coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself. [1 Larson, Workmen‘s Compensation, § 16.11, p 4-204.]
We do not address the merit of the Howard Court‘s application of the rule to its particular facts.
We decline to continue the ongoing dilution of the legislative requirement that, as a condition of compensability, an employee‘s injury must be suffered “out of and in the course of his employment” by first equating “circumstance of employment” with “out of and in the course of employment,” and finally substituting the newly created judicial standard for the longstanding legislative norm. [Id. at 204.]
From an examination of cases cited by defendant, and others we have examined in which it has been held that an employee injured on the premises of his employer during the noon hour or other temporary suspension of work was not under the act, we think it manifest that the controlling reason for denying an award in those cases rests upon the proven facts that the employee broke the so-called nexus between workman and employer by some manifestly reckless and unreasonable hazard, amounting to intentional and
A decision in favor of coverage for such injuries, then, would cause § 3109(1)28 of the no-fault act to work a reallocation of the cost of insurance reparations for lunchtime motor vehicle accidents, one probably not anticipated by the Legislature when § 3109 was enacted. This Court should not disturb the allocation of the burden of providing such reparations struck by the Legislature when it enacted the no-fault act. [Id. at 229.]
Even though this Court did not examine McClure as a case governed by the going-and-coming provision of subsection 301(3), the plain language of the statute indicates that it applies because when an employee returns from lunch or leaves for it, he is “going to or from his or her work ....” There is no requirement that he must be going to work at the beginning of his work day or leaving from work at the end of his work day. Moreover, this Court has applied the going-and-
wilful misconduct, or by disregarding, or disobeying, some warning of danger at the place of injury or prohibition relating to the thing being done, either addressed to the workman or promulgated as a general rule of conduct while on the premises. [Id. at 761.]
Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.
The no-fault insurer may reduce its no-fault payments by the injured party‘s worker‘s compensation benefits under subsection 3109(1). Mathis v Interstate Freight, 408 Mich 164, 176; 289 NW2d 708 (1980).
D
In holding that plaintiff did not suffer an injury that was compensable under worker‘s compensation, the Court of Appeals examined Michigan case law on the “going to work” parking lot cases and concluded that
[W]hen the employee has a definite place and time of work, and the time of work does not include the lunch hour, the trip away from and back to the premises for the purpose of getting lunch is indistinguishable in principle from the trip at the beginning and end of the work day, and should be governed by the same rules and exceptions.
Cases allowing compensation for employees injured while going to work involved travel from a parking area owned, leased, or maintained by the employer. . . .31 Compensation has been denied, however, when the injury occurred off the employer‘s premises, including private parking areas . . . .32 [Id.]
This analysis accords with Professor Larson‘s examination of state case law for the United States for an injury that occurs between an employer‘s parking lot and the employer‘s worksite:
[M]ost courts, but by no means all, hold that an injury in a public street or other off-premises place between the plant and the parking lot is in the course of employment, being on a necessary route between the two portions of the premises. But if the parking lot is a purely private one, the principle of passage between two parts of the premises is not available, and an employee crossing a public street to get to the parking lot is not protected. [1 Larson, Workmen‘s Compensation, § 15.14(b), pp 4-60 to 4-70 (emphasis added).]
This analysis is also consistent with the result in McClure (the employee was injured while crossing a public street when he was traveling from work to a restaurant).
[The employer] had no control over or responsibility for the route taken by plaintiff or the condition of the parking lot [where the injury occurred]. There is no logical justification for expanding the premises concept to this situation.
The Court of Appeals noted that this analysis may conflict with Fischer v Lincoln Tool & Die Co, 37 Mich App 198; 194 NW2d 476 (1971), but this case has been previously questioned. See Tedford v Stouffer‘s Northland Inn, 106 Mich App 493, 501-502; 308 NW2d 254 (1981), citing 1 Larson, Workmen‘s Compensation Law, § 15.12, p 4-10. We do not address the validity of this case.
E
In the instant case, the Court of Appeals reversed the WCAB and denied plaintiff worker‘s compensation benefits.
Plaintiff argues that the Court of Appeals decision cannot be reconciled with the earlier Court of Appeals decision to reverse the WCAB‘s denial of grant in Smith v Greenville Products Co, 185 Mich App 512; 462 NW2d 789 (1990). In Smith, an employee was struck by a car on a public street while walking from the employer-provided parking lot to his worksite. The Court noted that the employee could recover
[W]hen a court has satisfied itself that there is a distinct “arising out of” or causal connection between the conditions under which claimant must approach and leave the premises and the occurrence of the injury, it may hold that the [“]course of employment[“] extends as far as those conditions extend. [1 Larson, Workmen‘s Compensation, § 15.15, p 4-73 (emphasis added).]
In the instant case, Simkins originally drove to a parking lot maintained by General Motors, left this lot, and traveled to a private lot with a coemployee before she traveled to her worksite. The stipulation is silent regarding her reason for traveling to this private lot, and the stipulation also does not explain whether this was a reasonably direct route from the employer-provided lot to her worksite. Rather than resolve these factual questions on appeal, we remand this matter to the WCAC for further proceedings. We also direct the commission to provide the parties a full opportunity to present additional facts regarding these issues to ensure a proper resolution of the matter.
We conclude that under the going-and-coming provision of § 301 of the worker‘s compensation act, an employee is injured in the course of his employment while traveling to or from work when either (1) the injury occurred on property owned, leased, or maintained by the employer, or (2) the injury occurred while the employee was traveling on a reasonably direct path between the worksite and an employee parking lot owned, leased, or maintained by the employer. This framework is consistent with the way this Court has interpreted the going-and-coming provision, fulfills the statute‘s purposes, generally fits Michigan case law, and reflects the general rule articulated by Professor Larson. We vacate the Court of Appeals decision reversing the WCAB‘s decision to uphold the hearing referee‘s grant of worker‘s compensation benefits and remand to the WCAC for further proceedings.
BRICKLEY, C.J., and LEVIN, CAVANAGH, BOYLE, and MALLETT, JJ., concurred with RILEY, J.
WEAVER, J. (concurring in part and dissenting in part). I agree with the majority opinion that the standard under
An employee going to or from his or her work, while on the premises where the employee‘s work is to be performed, and within a reasonable time before and after his or her working hours, is presumed to be in the course of his or her employment. Notwithstanding this presumption, an injury incurred in the pursuit of an activity the major purpose of which is social or recreational is not covered under this act.
However, I write separately because I would affirm the Court of Appeals reversal of the Worker‘s Compensation Appeal Board‘s decision to award plaintiff worker‘s compensation benefits. I would not remand this case to the WCAC for further fact finding because the above standard articulated by the majority was appropriately applied by the Court of Appeals to the facts as stipulated by the parties. Therefore, there is no need to remand this case for further fact finding.
Furthermore, I would overrule Fischer v Lincoln Tool & Die Co, 37 Mich App 198; 194 NW2d 476 (1971), because that case conflicts with the principles set forth in the majority‘s opinion, parts A through D, and with the majority‘s standard. The Fischer Court awarded worker‘s compensation benefits to an employee, who was injured while walking to work after parking her car on a public street. The Fischer Court considered the street to be part of the employer‘s “premises,” as defined by the worker‘s compensation statute, because the employer failed to provide parking and therefore, expected its employees to park on the public street. Id. at 202.
This determination by the Court of Appeals was appropriately and persuasively criticized in Tedford v Stouffer‘s Northland Inn, 106 Mich App 493, 501-502; 308 NW2d 254 (1981), as follows:
The implicit trend in this manner of decision making is a steady dilution of legislative limitations on compensation.
The Supreme Court has specifically disapproved of such judicial “reform” of the compensation act. [McClure v General Motors Corp (On Rehearing), 408 Mich 191, 204; 289 NW2d 631 (1980).] While the statutory coming-and-going rule does not directly limit coverage to on-premise injuries... it must be remembered that the rule is an exception to the basic requirement that compensable injuries arise out of and in the course of the employment. [Id. at 502 (citations omitted).]
Fischer is an unnecessary expansion of the statutory coming-and-going rule of the worker‘s compensation act because it extends liability to situations that the employer has neither created nor controls. Id. at 502, citing 1 Larson, Workmen‘s Compensation Law, § 15.12, p 4-10. Because I agree with the majority‘s articulation of the standard under