Pappas v. Sports Services, Inc.

• Citation: 68 Mich.App. 423,243 N.W.2d 10
• Decision Date: 06 April 1976
• Docket Number: Docket No. 23212
• Parties: Louis PAPPAS, Plaintiff-Appellant, v. SPORTS SERVICES, INC., and Continental Casualty, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

Page 10

243 N.W.2d 10

68 Mich.App. 423

Louis PAPPAS, Plaintiff-Appellant, v. SPORTS SERVICES, INC., and Continental Casualty, Defendants-Appellees.

Docket No. 23212.

Court of Appeals of Michigan.

April 6, 1976.

Released for Publication June 21, 1976.

Leave to Appeal Denied July 14, 1976.

Frank P. Langton & Associates by Cynthia J. Boyer, Warren, for plaintiff-appellant.

Plunkett, Cooney, Rutt & Peacock by H. William Reising, Southfield, for defendants-appellees.

Before V. J. BRENNAN, P.J., and MAHER and BRITTEN, ^* JJ.

BRITTEN, Judge.

Plaintiff, denied workmen's compensation benefits by both the hearing referee and the Workmen's Compensation Appeal Board, asks this Court to rule that he is entitled to compensation for injuries suffered in an automobile accident of August 2, 1970. We decline plaintiff's invitation to extend an employer's liability for travel-related injuries and we affirm the administrative decisions below.

Plaintiff was a cook employed by defendant, a concessionaire at Detroit area race tracks. When first hired as a full time employee at the Hazel Park race track, located five minutes from his house, plaintiff received a $165 per week salary. His overtime pay averaged $25 per week. When the Hazel Park racing season closed, defendant asked plaintiff to work at its Northville Downs restaurant for the 60-day racing season there. Plaintiff, reluctant to undertake the 50-mile round trip without an increase in pay and convinced that his labors were worth more than $190 per week, negotiated a new salary of $225 per week. Although no sum was specifically allotted as recompense for the increased travel burden, testimony indicated that the increased salary was at least partially attributable to the increased commuting distance.

On August 1, 1970, plaintiff worked exceptionally long hours, from noon until one a.m. of the next day. During the day, in addition to his regular duties, he prepared food, some donated by defendant, for a race track employees party that was to be held off the premises of the employer in the early morning hours of August 2. Defendant gave its permission to use company trays and tableware for serving the food at the festivities, and indicated that, if plaintiff were to attend the party, he was to look after defendant's equipment. Plaintiff attended the community party, arriving at one a.m. Plaintiff cleaned the equipment and made sure that it was loaded in a car for return to defendant. Plaintiff left the party at three a.m. for the 25-mile drive home. Plaintiff fell asleep at the wheel, ran into a highway abutment, and suffered extensive injuries. He sought, and was denied, workmen's compensation.

Plaintiff advances three theories of eligibility for workmen's compensation: (1) because plaintiff received extra compensation for the increased commuting distance, his highway travel was part of his work and hence his injury arose out of and was in the course of employment; (2) because plaintiff was furthering his employer's interests and was performing a special overtime assignment in attending the community party, his subsequent homeward trip must be considered as arising out of and in the course of employment; and (3) the lengthy working day, combined with the attendance at and participation in the community party, markedly increased the plaintiff's fatigue, making the trip home more hazardous, and that the increased hazard arose out of and was in the course of employment.

We must approach these three theories with a preliminary recognition of the well-settled principle that injuries sustained while going to and from work are not compensable. E.g., Dent v. Ford Motor Co., 275 Mich. 39, 265 N.W. 518 (1936). However, as was pointed out in Stark v. L. E. Myers Co., 58 Mich.App. 439, 442--443, 228 N.W.2d 411, 413 (1975):

'This general rule however has been repeatedly riddled with exceptions to the extent that it seems to have become an exception to the exceptions. From this consequent erosion of the general rule, it would appear that there is arising through evolution a new rule which compensates where 'there is a sufficient nexus between the employment and the injury' so that it may be said that the injury 'was a circumstance of the employment." (Citations omitted.)

The Stark opinion listed four variables to consider in assessing the 'sufficiency of the nexus':

'1. Whether employer paid for or furnished employee transportation, * * *.

'2. Whether the injury occurred during or between working hours, * * *.

'3. Whether the employer derived a special benefit from the employee's activities at the time of the injury, * * *.

'4. Whether the employment subjected the employee to excessive exposure to traffic risks, * * *.' (Citations omitted.) 58 Mich.App. 439, 443, 228 N.W.2d 411, 414.

With these variables in mind, we turn to plaintiff's first theory of recovery. There is authority in Michigan for the proposition that injuries incurred while travelling are compensable when the employee is given a travel allowance. Lemanski v. Frimberger Co., 31 Mich.App. 285, 187 N.W.2d 498 (1971). We find the legal analysis in the Lemanski opinion quite sparse and we are hesitant to rely on it without some further thought.

The Lemanski Court merely ratified the determination of the Workmen's Compensation Appeal Board that an employee receiving a ten-cents-per-mile travel allowance was within the course of employment. The Court, apparently concluding that review was limited because the question was a factual one, ¹ cited with approval an excerpt from the appeal board opinion:

"Defendant's position is that this is merely a going to and from work situation and therefore excluded from coverage. This board does not agree. The payment of mileage pusuant to agreement is obviously intended to cover a special situation entailing more than a mere trip between home and shop and is a recognition that this employment has placed demands outside the ordinary on plaintiff in order to fulfill the requirements of his job for defendant, that highway travel is a necessary and routine part of the work assigned." 31 Mich.App. 285, 286, 187 N.W.2d 498, 499.

In the present case, the majority of the appeal board apparently concluded that plaintiff was not paid a specific sum for mileage, but was given a salary increase partially because of the increased inconvenience of travel. ² As the nature of this travel allowance is much diferent than that in Lemanski, we need not rely on Lemanski. We are compelled to analyze the competing policies on the issue of compensation for commuting injuries when the employee has received a salary increase that is at least partially attributable to increased travel time.

Other than Lemanski, there do not seem to be any Michigan cases close to this issue. A number of cases have awarded compensation for travel accidents where the employer has provided the employee's transportation rather than a cash transfer for travel. Konopka v. Jackson County Road Comm., 270 Mich. 174, 258 N.W. 429 (1935), and Chrysler v. Blue Arrow Transport Lines, 295 Mich. 606, 295 N.W. 331 (1940), do not involve a travel allowance but concern instead an express or implied undertaking by the employer to provide transportation. As was stated in Chrysler:

'While generally speaking, normal traffic hazards encountered while traveling to and from the place of work are deemed to be risks common to all and are not connected with the employment status, industry must bear the loss from injuries sustained from such common risks when the task subjects the worker to 'excessive exposure to the common risk' * * *. In the case before us, Travel itself was the employment, imposing abnormal risk of travel mishaps, not only while driving a loaded truck but in returning to the starting point of a journey after the allowed free time.' (Emphasis added.) (Citations omitted.) 295 Mich. 606, 609, 295 N.W. 331, 332.

We do not find Lemanski or the provision of transportation cases controlling in our consideration of the particular question plaintiff poses. Where the employer provides a vehicle, guarantees transportation, reimburses identifiable travel expenses, or provides an identifiable sum for travel time, it is probable that the employer has contracted for the employee's travel and that, as the Chrysler case notes, the travel itself is employment. However, where the employer merely gives a salary increase to an employee to induce him to work at a more distant job site, there is a lesser probability that the employer has contracted for travel. The defendant in this case simply made the position more attractive financially by increasing the salary. The employer received no benefit from the employee's travel other than the benefit all employers receive by the employees' presence at work.

The plaintiff was a cook, not a travelling salesman, a truck driver, or a journeyman worker moving from site to site. His employment at Northville for two months is of sufficient duration to remove his case from one of the possible bases for the Lemanski decision, for, unlike Lemanski, the plaintiff's position did not require extraordinary travelling because of turnover in job sites. ³

We do not believe that plaintiff's increased salary can be attributed to the employer's contracting for the plaintiff's travel. The employer had no control over, nor particular desire for, plaintiff's travel. The extra money paid merely amounts to additional compensation necessary to attract plaintiff's services, rather than a special arrangement...