Moore v. Gundelfinger, Docket No. 18092

• Decision Date: 09 October 1974
• Docket Number: No. 3,Docket No. 18092,3
• Citation: 56 Mich.App. 73,223 N.W.2d 643
• Parties: Betty MOORE, Plaintiff-Appellant, v. Jan GUNDELFINGER and W. T. Gundelfinger, a Michigan partnership, d/b/a Gundel's Hairdressers, and Continental Casualty Company, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 643

223 N.W.2d 643

56 Mich.App. 73

Betty MOORE, Plaintiff-Appellant, v. Jan GUNDELFINGER and W. T. Gundelfinger, a Michigan partnership, d/b/a Gundel's Hairdressers, and Continental Casualty Company Defendants-Appellees.

Docket No. 18092.

Court of Appeals of Michigan, Division No. 3.

Oct. 9, 1974.

Released for Publication Dec. 13, 1974.

Peter P. Patrick, Patrick & Johnson, Cheboygan, for plaintiff-appellant.

Thomas O. Wood, Grand Rapids, for defendants-appellees.

Before HOLBROOK, P.J., and T. M. BURNS and SMITH,* JJ.

HOLBROOK, Presiding Judge.

This case arises as an appeal from determination of the Workmen's Compensation Appeal Board ¹ which upheld a decision of a compensation referee denying benefits to plaintiff.

In early 1970 plaintiff Betty Moore, who had recently finished a beautician's course in Petoskey, Michigan, was contacted, at her home in Levering, Michigan, by defendant Jan Gundelfinger concerning possible employment with Gundel's Hairdressers (a partnership of defendant Jan Gundelfinger and her husband defendant W. T. Gundelfinger) in Battle Creek, Michigan. Plaintiff went to Harbor Springs, Michigan, where she demonstrated her skills by working on Mrs. Gundelfinger's hair. After having completed this step, a trip to defendants' shop in Battle Creek was necessary to determine if the employment of plaintiff would be harmonious with the manager of the shop and the employees.

On February 1, 1970, the two left for Battle Creek in a car owned and driven by Jan Gundelfinger. Plaintiff had been informed that all costs of the trip would be borne by Jan Gundelfinger. On February 2, plaintiff was shown the defendants' shop. On the 3rd and 4th, plaintiff again demonstrated her skills by working on the hair of one of defendants' employees. Thereafter, plaintiff was told that should she so desire she could start work the following week. To this plaintiff agreed.

Returning north, the ladies were involved in an automobile accident on Michigan highway M--66 in Ionia County. Jan Gundelfinger was driving. Plaintiff suffered head injuries and a fractured patella. On the next day (February 6) plaintiff was taken by her father from the Ionia Hospital to the Little Traverse Hospital in Petoskey. Plaintiff underwent knee surgery.

Plaintiff did not return to work until August 1, 1970, when she worked in a part-time position as a cashier in a restuarant. On September 1, 1970, plaintiff began working full time at a beauty shop in Mackinaw City.

Later in September, plaintiff by her father as next friend filed suit against defendants for damages. On October 19, 1970, defendant Jan Gundelfinger filed an employer's basic report of injury with the Workmen's Compensation Bureau. Plaintiff filed a petition therein for hearing dated December 11, 1970. On December 2, 1971, a hearing was held on the petition of plaintiff. Prior thereto the civil suit was settled for $4,000. On November 30, 1971, a release was signed which specifically excluded release from any claim for workmen's compensation benefits. By decision signed December 2, 1971, the referee denied plaintiff's petition. Plaintiff appealed from this ruling and on August 3, 1973, the referee's denial of benefits was affirmed by the WCAB. After briefly stating the facts of the case, the WCAB found:

'Within a year plaintiff initiated both a guest passenger liability suit against defendants and a workmen's compensation claim against defendant partnership's compensation carrier.

'Her legal pleadings throughout the circuit court action specifically denied any employer-employee relationship. Upon settlement of that claim for $4,000.00, the workmen's compensation case was brought up for hearing--now with the claim of employment status. The Hearing Referee denied same with plaintiff bringing this appeal.

'Specifically excluding the above-referred-to prior litigation, we find the Referee's decision supportable on the facts of this case. Plaintiff was never employed or paid wages. She had agreed to employment with that employment to commence five days After the accident. She had not even taken such preliminary steps as completion of Social Security information. Cases cited by plaintiff center around highway risks or non-work-location injuries arising out of employment already established. Here employment was contemplated, not consumated (sic). It would be difficult for this Board to find an auto accident involving a beautician on her way home as compensable. How much more difficult when that beautician hasn't even entered into an employment situation.' (Emphasis in original.)

I

As is often the case, one party, here the defendants, confronts this Court with one basic assertion, Viz., that the determination of the appeal board was one of fact and that, in the absence of fraud, that finding is conclusive. Const.1963, art. 6, § 28 states that findings of fact made by the WCAB are conclusive in the absence of fraud. M.C.L.A. § 418.861; M.S.A. § 17.237(861) provides:

'The findings of fact made by the board acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have power to review questions of law involved in any final order of the board, if application is made by the aggrieved party within 30 days after such order by any method permissible under the rules of the courts of the laws of this state.'

It is apparent that the Legislature never manifested any intention that this Court should not review any and all legal determinations of the WCAB. In the past, this writer has pointed out that the task of this Court is to examine the board's application of legal standards. Medacco v. Campbell, Wyant & Cannon Foundry Co., 48 Mich.App. 217, 220--221, 210 N.W.2d 360, 363 (1973).

The courts of this state are not triers of fact in workmen's compensation cases, but rather review findings to determine whether there is evidence to support the giving or denial of an award. Carter v. Kelsey-Hayes Co., 386 Mich. 610, 615, 194 N.W.2d 326, 328 (1972). This Court must affirm if there is any evidence in the record to support the findings. Lamb v. John's Tavern, 37 Mich.App. 678, 681, 195 N.W.2d 278, 279 (1972). However, in order to properly review these cases, the appeal board must indicate the testimony adopted, the standard followed, and the reasoning used in reaching its conclusion. McClary v. Wagoner, 16 Mich.App. 326, 328, 167 N.W.2d 800, 801 (1969); Lamb v. John's Tavern, Supra. In reference to this, Justice O'Hara has recently written:

'(A)n administrative tribunal clothed with the awesome power to award or deny benefits in finality on facts found absent fraud should make those findings clear and unequivocal. Whenever possible transcript references should be made to the testimony it accepts or rejects. By so doing it will insure the effectuation of the legislative intent of severely limiting judicial review.' Couch v. Saginaw Malleable Iron Plant, Central Foundry Div. of GMC, 51 Mich.App. 317, 321--322, 214 N.W.2d 885, 887--888 (1974).

We are unable to say under the circumstances present herein that the opinion is clear and unequivocal. The only testimony was that of plaintiff, so reference to the testimony accepted or rejected was unnecessary. While no standard is explicitly set out, it appears that the WCAB, having found as a matter of act that no employment relationship existed, concluded that the injury was not compensable as a matter of law. As will appear herein, the legal standard of a no-employment relationship is not controlling and is inapplicable. The facts in this case raise an issue of first impression in this jurisdiction.

II

The novel question is whether a tryout period is so covered as to fall within the confines of the workmen's compensation law if an injury should occur during that period.

Professor Larson has written:

'Since workmen's compensation law is primarily interested in the question when the risks of the employment begin to operate, it is appropriate, quite apart from the strict contract situation, to hold that an injury during a try-out period is covered, When that injury flows directly from employment activities or conditions.

'If all the facts are present which would justify the conclusion that a trip or activity prior to formal hiring was sufficiently connected with the employment to support compensability, this conclusion should not be retroactively undone if the case happens to present evidence that the hiring for some reason would not have taken place.' (Emphasis supplied.) 1 Larson's Workmen's Compensation Law, § 26.20, pp. 5--202, 5--203.

In Smith v. Venezian Lamp Co., 5 A.D.2d 12, 168 N.Y.S.2d 764 (1957), an individual claiming workmen's compensation benefits had sought a job as a polisher with the defendant manufacturer of lamps. The man in charge of the company's polishing operations told claimant that he would 'try him out'. The claimant was given part of a lamp to polish which he attempted to do with a buffing machine. The lamp slipped off the spool upon which it was placed, struck, and caused injuries to the claimant. The New York Court wrote at 5 A.D.2d 14, 168 N.Y.S.2d 766: 'A tryout is for the benefit of the employer, as well as the applicant, and if it involves a hazardous job we see no valid reason why the applicant should not be entitled to the protection of the statute'. ²

Also involving the question of whether injuries occurring during a tryout period are compensable is the case of Laeng v. Workmen's Compensation Appeals Board, 6 Cal.3d 771, 100 Cal.Rptr. 377, 494 P.2d 1 (1972). While participating in an obstacle course, as a phase of a physical agility test, the petitioner Laeng fell from a raised horizontal telephone pole and fractured his right foot. The workmen's compensation referee found that the complainant was precluded from workmen's compensation recovery because, at the time of the injury, he had not become an employee of the respondent City...