Forgach v. George Koch & Sons Co., Docket No. 95390

• Decision Date: 19 April 1988
• Docket Number: Docket No. 95390
• Citation: 167 Mich.App. 50,421 N.W.2d 568
• Parties: George FORGACH, Plaintiff-Appellant, v. GEORGE KOCH & SONS COMPANY, and U.S. Fidelity & Guaranty Company, Defendants-Appellees. 167 Mich.App. 50, 421 N.W.2d 568
• Court: Court of Appeal of Michigan — District of US

Page 568

421 N.W.2d 568

George FORGACH, Plaintiff-Appellant, v. GEORGE KOCH & SONS COMPANY, and U.S. Fidelity & Guaranty Company, Defendants-Appellees.

Docket No. 95390.

167 Mich.App. 50, 421 N.W.2d 568

Court of Appeals of Michigan.

Submitted Jan. 12, 1988.

Decided March 8, 1988.

Released for Publication April 19, 1988.

[167 MICHAPP 51] Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen by A.T. Iverson, Jr., Bloomfield Hills, for plaintiff-appellant.

Nystrom, Nystrom & Hitchcock by Marsha M. Woods, Bloomfield Hills, for defendants-appellees.

Before J.H. GILLIS, P.J., and WEAVER and ALLEN, ^* JJ.

ALLEN, Judge.

In this matter on leave granted from an August 25, 1986, opinion and order of the Workers' Compensation Appeal Board, we are asked to determine whether a flat per diem travel stipend, computed on a zone basis and paid pursuant to a union contract, in and of itself determines that an employee injury, occurring while returning en route from work to home, arises "out of and in the course of employment." The hearing referee and Workers' Compensation Appeal Board held that it did not. We affirm. The issue raised is of first impression in Michigan.

Plaintiff, born July 10, 1924, is a journeyman sheet metal mechanic with thirty years experience in all phases of sheet metal work. Customarily, he obtained jobs through his union, Local 80 of the [167 MICHAPP 52] Sheet Metal Workers International Association. In the Spring of 1978, Local 80 received a request for more sheet metal workers from another union local, Local 292, since Local 292 did not have sufficient workers to fill a job for defendant, George Koch & Sons Company, at the General Motors Hydramatic Plant at Willow Run in Ypsilanti. Pursuant to this request, plaintiff was employed by defendant at the Willow Run job site.

Under the terms of the collective bargaining agreement between Local 292 and George Koch & Sons Company, plaintiff was paid an hourly wage plus $2.50 per day for travel. Travel was not based on actual distance traveled but was based on zone mileage, calculated using the Detroit City Hall as the starting point. The first thirty miles from the starting point were a free zone, for no mileage was paid. After that, the mileage rate increased by zone, according to the distance from the starting point. The GM Hydramatic Plant fell in the $2.50 per day zone.

Plaintiff's home was in St. Clair Shores and it was from there that he proceeded to the job site through a car pool arrangement. He would drive his own car to a nearby designated spot at Twelve Mile and I-94 where he would meet with three fellow employees. Each employee took turns driving his own car to the job site and was not paid by the others for gas. This arrangement had been going on since the job commenced some two months previous to the date of the accident.

On June 6, 1978, plaintiff rode to the job site as a passenger in the car pool. After working the scheduled shift, the four employees started back home on I-94. At a point approximately twenty-three miles from the job site (Livernois and I-94), the car in which plaintiff was riding was sideswiped, struck the guardrail, rolled over and [167 MICHAPP 53] caught on fire. Plaintiff sustained serious injuries to his left arm, resulting in six major operations and making it impossible for him to resume his job as a skilled sheet metal mechanic.

At the hearing before the referee, plaintiff testified that he was performing no special service to his employer on that date, that he did not receive an hourly rate of pay for travel to and from work and that he was not paid per actual miles traveled. However, ten separate weekly pay checks to plaintiff in amounts ranging from $5 to $17.50, each designated "Travel Pay," were introduced into evidence. No medical testimony was presented since the parties agreed this would not be offered until the threshold question of whether plaintiff was in the scope of his employment was resolved.

On April 9, 1981, the hearing referee ruled that no benefits were payable:

"Plaintiff's injuries did not arise out of, nor occur in the course of his employment. It is significant that the transportation or 'travel expense' was a sum based on a zone and paid pursuant to, or as prescribed by a union contract and was thus in the nature of a fixed additional expense to the defendant and not a 'travel expense' provided to compensate for an additional or unusual risk of injury. Consequently, the case of Lemanski v Frimberger Co [31 Mich.App. 285, 187 N.W.2d 498 (1971) ] appears inapplicable to support plaintiff's position and, in addition, the facts herein do not satisfy those requirements to satisfy compensability as prescribed in the case of Stark v L E Meyers Co [58 Mich.App. 439, 228 N.W.2d 411 (1975), lv. den. 394 Mich. 814 (1975) ]."

Plaintiff appealed to the Worker's Compensation Appeal Board, arguing, inter alia, that in Collier v. J A Fredman Inc., 1983 WCABO 790, a flat rate travel allowance of $4.50 per diem based upon the [167 MICHAPP 54] distance between the union hall and the job site was held by the WCAB to be grounds for finding that plaintiff's injury on the way home from an assigned seminar arose out of plaintiff's employment. On August 25, 1986, the WCAB issued its opinion affirming the finding of the hearing referee.

The WCAB opinion states the general rule that injuries sustained by an employee going to or returning from work are noncompensable, but notes the rule has been "riddled with exceptions," one of which is whether the employer paid for or furnished employee transportation, citing Stark v. L.E. Myers Co., 58 Mich.App. 439, 228 N.W.2d 411 (1975), lv. den. 394 Mich. 814 (1975). The WCAB then noted that its decision in Collier, supra, was reversed and remanded to the board in an unpublished opinion of the Court of Appeals (Collier v. J A Fredman, Inc., Docket No. 74262, dated April 26, 1985); the Collier Court, relying on 1 Larson, Workman's Compensation, 16.30, pp. 4-180 to 4-181 and Stark, supra, concluded that a flat rate travel allowance is not in itself sufficient grounds to find that the employee is within the scope of his employment. Instead, three additional factors, viz: (1) whether the injury occurred during or between working hours; (2) whether the employer derived a "special benefit" from the employee's activities at the time of the injury; or (3) whether the employment subjected the employee to "excessive exposure to traffic risks," should be considered before concluding that the employee is or is not within the scope of employment at the time of the injury. The WCAB opinion summarized as follows:

"Adopting the premise of Collier, supra, that no one factor is in and of itself determinative, we decide from the total record whether the added [167 MICHAPP 55] travel stipend, when considered with these other factors, constituted 'a substantial part' of the service performed, per Larsen, supra, so as to create the required nexus.

"Plaintiff testified that he was called from another union hall to work for defendant under a similar or identical zone mileage agreement as his own local's. However, no showing was made that this solicitation from another local, that also allowed payment of zone mileage based on the same radius standards as plaintiff's, provided any special benefit to defendant through inducing plaintiff into its employment....

"The evidence did not show that plaintiff's route to and from defendant's job site exposed him to any excessive risk not borne by the regular traveller, or that his injury had resulted from such a risk. He was not shown to be on any special mission or engaged in any dual purpose employment through carrying some of his tools with him in the car, per Bush, [v. Parmenter, Forsythe, Rude & Dethmers, 413 Mich. 444, 452, 320 N.W.2d 858 (1982) ]. No suggestion was offered anywhere that his injury occurred during or between working hours. Nor was there any evidence that the car pooling was arranged by one of defendant's foremen or provided in a company vehicle, as in Torres v Armond Cassil Co, 115 Mich App 690 (1982), where such evidence was the basis for finding that a sufficient employment nexus existed.

"Given the failure of the instant record to clarify whether any of the other factors beyond a flat travel stipend could have provided a sufficient nexus between plaintiff's employment and his injury, we conclude that plaintiff has failed to bear his evidentiary burden of proving that his injury arose out of and in the course of his employment. Aquilina v General Motors Corp, 403 Mich 206 (1978). Stark, Bush, Collier, supra." 186 WCABO 657, 659-660.

On appeal plaintiff submits two grounds for [167 MICHAPP 56] reversal: (I) that the WCAB relied on an unpublished opinion of the Court of Appeals, as a result of which its decision should be reversed, and (II) because plaintiff's employer paid plaintiff for travel to and from the work place, plaintiff was in the course of his employment at the time of injury.

I

It is undisputed that an unpublished opinion of the Court of Appeals has no precedential value, should not be cited, and that trial courts and administrative tribunals are not "bound" by decisions without precedential value. Stine v. Continental Casualty Co., 419 Mich. 89, 95, 349 N.W.2d 127 (1984); Moultrie v. DAIIE, 123 Mich.App. 403, 333 N.W.2d 298 (1983). However, in the brief submitted on appeal to the WCAB, plaintiff argued that the board's earlier opinion in Collier "is exactly on point with the case at bar, and the same result must be reached." The board can hardly be faulted for stating in its subsequent opinion that the Court of Appeals had reversed the board and had ordered a four-factor consideration. More importantly, it is clear from the opinion itself that the board did not reach its conclusion solely on the basis of Collier. Instead, it was Larson's commentary and the four-factor formula in Stark, supra, which the...