Opinion
Docket Nos. 117556, 117557.
Decided April 2, 1990. Leave to appeal applied for.
Frank R. Langton Associates, P.C. (by Mark S. Lucas), for plaintiff.
Conklin, Benham, Ducey, Listman Chuhran, P.C. (by Martin L. Critchell), for J.A. Fredman, Inc., and Liberty Mutual Insurance Company.
Frank J. Kelley, Attorney General, and Ray W. Cardew, Jr., Assistant Attorney General, for Second Injury Fund.
This is a workers' compensation case. Defendants applied to this Court for leave to appeal from the Workers' Compensation Appeal Board's opinion and order dated April 22, 1988, granting an open award to plaintiff. That opinion was entered following a reversal and remand from this Court as a result of an earlier decision of the WCAB. This Court denied leave to appeal. Defendants thereafter filed for leave to appeal to our Supreme Court, which remanded the cases to this Court for consideration as on leave granted. We affirm the opinion and order of the WCAB.
I
Plaintiff, an apprentice ironworker, was employed by defendant J.A. Fredman, Inc. Plaintiff was required to attend apprenticeship classes once every two weeks. Plaintiff made the hour and a half drive to classes by car. On the days plaintiff was required to attend classes, J.A. Fredman, Inc., paid plaintiff his normal wages for an eight-hour day, plus a $4.50 travel allowance. The $4.50 travel allowance was the maximum amount J.A. Fredman paid to employees for travel expenses, regardless of actual mileage.
II
On October 10, 1976, plaintiff was severely injured in an automobile accident while driving home from classes. Plaintiff's claim for workers' compensation benefits was initially denied by a hearing officer who apparently found that plaintiff's accident was the result of plaintiff's own driving misconduct.
The WCAB reversed the hearing officer's ruling and held that plaintiff was entitled to benefits.
Defendants were granted leave to appeal to this Court, and a panel of this Court reversed the WCAB'S ruling and remanded the action for further proceedings. Collier v J A Fredman, Inc, unpublished opinion per curiam of the Court of Appeals, decided April 26, 1985 (Docket Nos. 74262, 74282). This Court held that the WCAB failed to apply the correct legal standard when it relied exclusively on the existence of a travel stipend for its determination that plaintiff's injuries arose out of and in the course of his employment. This Court noted in its opinion that the question whether the travel stipend in and of itself created a sufficient nexus between plaintiff's injuries and his employment was not addressed by the WCAB.
Following remand by this Court, the WCAB, in a split decision, determined that plaintiff was entitled to benefits because a sufficient nexus existed between plaintiff's injuries and his employment.
Defendants applied for, and were denied, leave to appeal to this Court. Defendants thereafter applied for leave to appeal to our Supreme Court, which remanded this case to this Court for consideration as on leave granted. 432 Mich. 902 (1989).
III
Defendants contend that the WCAB erred in holding that plaintiff's injuries arose out of and in the course of his employment. We disagree.
Absent fraud, this Court cannot disturb an order or decision of the WCAB unless it is contrary to law or not supported by competent, material, and substantial evidence. Const 1963, art 6, § 28; Morin v DSS, 174 Mich. App. 718, 721; 436 N.W.2d 729 (1989).
Generally, injuries sustained by an employee going to and coming from work are not compensable under the workers' compensation act. Bush v Parmenter, Forsythe, Rude Dethmers, 413 Mich. 444, 451; 320 N.W.2d 858 (1982); Thomas v Staff Builders Health Care, 168 Mich. App. 127, 129; 424 N.W.2d 13 (1988), lv den 430 Mich. 886 (1988). Exceptions to the general rule exist where
(1) the employee is on a special mission for the employer, (2) the employer derives a special benefit from the employee's activity at the time of the injury, (3) the employer paid for or furnished employee transportation as part of the employment contract, (4) the travel comprised a dual purpose combining employment-related business needs with the personal activity of the employee, (5) the employment subjected the employee to excessive exposure to traffic risks, or (6) the travel took place as a result of a split-shift working schedule or employment requiring a similar irregular nonfixed working schedule. [ Thomas, supra, p 129.]
An employee is entitled to compensation 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." Id., p 130.
A panel of this Court in Forgach v George Koch Sons Co, 167 Mich. App. 50, 63; 421 N.W.2d 568 (1988), recently held that "zone computed travel allowances paid pursuant to a union contract are not in and of themselves sufficient to find the requisite nexus between employment and injury."
While travel allowances in and of themselves are insufficient to establish the requisite nexus between employment and injury, when considered in conjunction with other factors, such travel allowances may justify a finding that an employee was in the scope of his employment at the time of injury. Forgach, supra. Such is the case here.
In its opinion, the WCAB found that the record demonstrated the presence of multiple potential bases for establishing the requisite nexus and concluded
that an adequate nexus existed between the employment and the injury in that the employer: (1), helped fund the program; (2), paid the claimant his regular wage on each day he participated in the program; and (3), paid claimant a travel allowance on the day he was injured. The fact that the employer directly benefited from the claimant's attendance would constitute an additional basis for establishing such a nexus.
On the record before us, we conclude that the WCAB'S decision that plaintiff's injuries arose out of and in the course of plaintiff's employment is not contrary to law and is supported by competent, material, and substantial evidence.
Affirmed.