Eversman v. Concrete Cutting & Breaking

Cavanagh, J.

I concur with the result of the majority opinion, though not its rationale. I write separately because the majority announces a rule that is impermissibly broad. Further, I would examine this case under MCL 418.301(1); MSA 17.237(301)(1)1 in addition to MCL 418.301(3); MSA 17.237(301)(3), and would address the issue whether the traveling employee doctrine should be adopted in Michigan.

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Specifically, I disagree with the majority’s statements that “it is not necessary for us to decide whether to adopt the traveling employee doctrine,” and that “[r]egardless of whether Eversman was on a special mission or working as a traveling employee, his recovery is precluded under the plain language of MCL 418.301(3); MSA 17.237(301)(3).” Ante at 93. To *99the contrary, if this Court were to adopt the traveling employee doctrine, subsection 301(3) would be inapplicable. On the other hand, if the traveling employee doctrine is not adopted, subsection 301(3) may or may not be applicable.

In its entirety, subsection 301(3) provides as follows:

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.

Under principles of statutory construction, we are required to give effect to every statutory clause and to consider the statutory context holistically. Deur v Newaygo Co Sheriff, 420 Mich 440, 445; 362 NW2d 698 (1984); Grand Rapids v Crocker, 219 Mich 178, 182; 189 NW 221 (1922). When taken in its entirety, subsection 301(3) provides a rule to be applied in limited circumstances.

The first sentence of subsection 301(3) delineates three instances in which an employee is presumed to be in the course of employment: (1) when the employee is going to or from work, (2) while the employee is on the premises where work is to be performed, and (3) within a reasonable time before and after working hours. The second sentence of subsection 301(3) creates an exemption to the rule created by the first sentence of subsection 301(3), as is evidenced by the introductory clause, “Notwithstanding this presumption . . . .” The exception will be irrele*100vant unless the rule would apply. In cases not involving one of the three categories of subsection 301(3), the “social or recreational” exception would never be reached. Instead, our analysis would proceed under subsection 301(1). The majority erroneously applies the exception to cases where the rule is potentially inapplicable.2 1 expressly disagree with a construction of subsection 301(3) that fails to recognize the relationship between the subsection 301(3) presumption and its subsection 301(3) “social or recreational” exception. I agree with the dissent that the first sentence of subsection 301(3) embodies a presumption, while the second sentence limits the presumption. Post at 106.

A primary issue in this case is whether this Court should adopt the traveling employee doctrine. Under the traveling employee doctrine, as adopted by the Court of Appeals, “Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, *101except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.” 2 Larson, Workers’ Compensation Law, § 25.01, pp 25-1 to 25-2.

If we were to adopt the traveling employee doctrine, subsection 301(3) would be inapplicable to traveling employees. Because the employee would be continuously within the scope of employment, it would be illogical to conduct a subsection 301(3) analysis because there is no need to determine whether the employee is presumed to be in the course of employment. A more logical approach would be to proceed under subsection 301(1). Under the traveling employee doctrine, the traveling employee would generally be considered to be in the course of employment for subsection 301(1) purposes, but could be removed from subsection 301(1) coverage if the employee makes a distinct departure on a personal errand. The employee could also be removed from the coverage of subsection 301(1) if the injury does not “arise out of” employment.

On the other hand, if we were to reject the traveling employee doctrine, then the result would be that traveling employees would have no special status. In that case, a plaintiff’s claim could be barred by the “social or recreational” exemption of subsection 301(3) as long as the employee fell into one of the three categories covered by the presumption of the first sentence of subsection 301(3). If the employee did not fit into one of the subsection 301(3) categories, the subsection 301(1) “arising out of and in the course of employment” test would apply. However, if the employee did fit within one of the categories of *102subsection 301(3), then the employee could potentially be denied benefits under the “social or recreational” test of subsection 301(3) in addition to the “arising out of or in the course of” test of subsection 301(1).

The majority separates the last clause of subsection 301(3) from the whole of the statutory text, and concludes that benefits may be denied whenever an employee is engaged in a social or recreational activity. The majority’s analysis is dangerously overbroad. I am not convinced that subsection 301(3) is designed to preclude recovery in every situation where an employee is engaged in an activity with a major “social or recreational” purpose. For example, like the Court of Appeals in Angel v Jahm, Inc, 232 Mich App 340, 342, n 4; 591 NW2d 64 (1998), I “question whether an employer who requires attendance at an event should be permitted to argue that the major purpose of the event was social or recreational in order to avoid liability.” Similarly, the majority opinion could be read as barring recovery for any type of unfortunate injury that occurs as a result of an on-the-job mishap.

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Because the majority resolves this case on the basis of subsection 301(3), I reserve judgment about whether the traveling employee doctrine should be adopted. I concur in the majority’s result because, absent the adoption of the traveling employee doctrine, the plaintiff’s claim must fail regardless of whether the case is analyzed under subsection 301(3) or under subsection 301(1).

*103I do not disagree with the majority’s application of subsection 301(3)’s social or recreational test to the present facts, I question the applicability of subsection 301(3). However, absent the adoption of the traveling employee doctrine, and operating under the assumption that subsection 301(3) is applicable on the grounds that plaintiff would fall within one of the delineated subsection 301(3) categories, I would agree with the majority that the plaintiff was engaged in the pursuit of activities with a major social or recreational purpose when he was injured.

Moreover, the plaintiff could not recover even if we were to conclude that subsection 301(3) is inapplicable. Under subsection 301(1), the question would be whether the injury arose out of and in the course of employment. I am not persuaded that Eversman’s injury was sufficiently connected with or caused by his employment. Under our decisional law, compensation may be denied if the circumstances indicate that an injury did not occur in the course of employment, if no connection or nexus between the employment and the injury can be shown, or if the employee deviates from the employment relationship to the extent that there were risks so unrelated to the employee’s business that it “dwarfed the business purpose” of the trip. Bush v Parmenter, Forsythe, Rude & Dethmers, 413 Mich 444, 460; 320 NW2d 858 (1982). Under the circumstances of this case, Eversman’s decision to return to the bar after a long day of drinking, and then to cross a well-traveled highway in the dark unquestionably increased the risk of injury. These risks were so unrelated to the business that the business purpose of the trip was “dwarfed.” I would hold that Eversman’s injury did not arise out of his employment because the nexus between employment *104and injury was broken. Similarly, his injury was not in the course of employment because it lost its business character and was no longer a circumstance of employment.

Although the intervening-appellee’s case might be strengthened by the adoption of the traveling employee doctrine, the doctrine has not yet been adopted in Michigan. Regardless of whether subsection 301(3) or subsection 301(1) is considered controlling, the intervening-appellee cannot prevail. Therefore, I concur in the result reached by the majority. I would reverse the decision of the Court of Appeals.

MCL 418.301(1); MSA 17.237(301)(1) provides as follows:

An 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. In the case of death resulting from the personal iryury to the employee, compensation shall be paid to the employee’s dependents as provided in this act. Time of injury or date of injury as used in this act in the case of a disease or in the case of an ipjury not attributable to a single event shall be the last day of work in the employment in which the employee was last subjected to the conditions that resulted in the employee’s disability or death.

The majority’s analysis may be based in part on its adoption of Nock v M & G Convoy, Inc (On Remand), 204 Mich App 116; 514 NW2d 200 (1994). I expressly disagree with Nock’s statement that “we cannot agree that the social-activity amendment applies only to situations covered by the presumption preceding it . . . .” Id. at 120-121. Nock’s holding was conclusory and unpersuasive.

Moreover, I disagree with the majority’s assessment that my reading of subsection 301(3) is “too narrow.” Ante at 95, n 7. The final clause of subsection 301(3), which follows the presumption of the first sentence and the exception of the second sentence, plainly provides that benefits will be barred completely when a person who would otherwise be covered by the first sentence of subsection 301(3) incurs an injury “in the pursuit of an activity the major purpose of which is social or recreational.” In other words, a person who is “going to or from work, while the employee is on the premises where the work is to be performed, and within a reasonable time before and after working hours” will not be able to recover if that employee is engaged in the pursuit of an activity with a major social or recreational purpose.