Order Michigan Supreme Court
Lansing, Michigan
March 31, 2006 Clifford W. Taylor,
Chief Justice
129469 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
JIMMY D. RUTHRUFF, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 129469
COA: 262073
WCAC: 02-000197
TOWER HOLDING CORPORATION/TOWER
AUTOMOTIVE, INC., and AMERICAN
MANUFACTURERS MUTUAL INSURANCE
COMPANY,
Defendants-Appellants.
_________________________________________/
On order of the Court, the application for leave to appeal the August 3, 2005 order
of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we REMAND this case to the Court of Appeals for
consideration as on leave granted. The Court of Appeals shall include among the issues
addressed whether the Workers’ Compensation Appellate Commission misapprehended
its appellate function by disregarding the factual findings of the magistrate, and whether
it disregarded the Court of Appeals express instruction on remand to resolve this case by
determining whether plaintiff was “required to bring a lunch” to work.
CAVANAGH, J., would deny leave to appeal.
KELLY, J., dissents and states as follows:
I would deny leave to appeal. In addition, I point out that the order incorrectly
characterizes the Court of Appeals express instruction in its judgment remanding this
matter. The remand was not to resolve this case by determining whether plaintiff was
required to bring a lunch to work. The Court of Appeals remanded “for an application of
the statutory presumption and a determination of whether plaintiff’s injury arises out of
his employment.” The record was to be reopened to “allow a determination of the exact
nature of the risk involved in this case.” The Court directed that the magistrate
“determine the nature of the risk present in light of the evidence and apply the
2
appropriate test for determining whether plaintiff’s injury is one arising out of
employment.”1 Ruthruff v Tower Holding Corp (On Reconsideration), 261 Mich App
613, 622-623 (2004).
1
If plaintiff was not required to bring a lunch, then the risk was of a personal nature. If
he was required to bring a lunch, then it might be considered a neutral risk case. In
addition, this might be viewed as a mixed risk case, where “compensability exists if the
employment was a contributing factor . . . .” Id. at 622.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 31, 2006 _________________________________________
t0328 Clerk