Opinion
Docket No. 162042.
Submitted November 1, 1994, at Lansing.
Decided January 18, 1995, at 9:10 A.M. Leave to appeal sought.
Hanba, Lazar Ackerman, P.C. (by Michael D. Smith), for the plaintiff.
Groves, Decker Wyatt (by Harvey R. Groves), and Braun Kendrick Finkbeiner (by Scott C. Strattard), for General Motors Corporation.
Warren C. Droomers, for Valley Forge Insurance Company.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Angelita Espino, Assistant Attorney General, for Second Injury Fund.
ON REMAND
The Worker's Compensation Appeal Board affirmed an award of disability compensation benefits to plaintiff, Elizabeth A. Simkins, who was injured seriously in an automobile accident. This Court denied defendant's application for leave to appeal that decision; however, we remanded the case to the appeal board for consideration of Valley Forge Insurance Company's claim for reimbursement of medical and health care benefits it had paid. The Supreme Court denied leave to appeal, 440 Mich. 909 (1992), but, on defendant's motion for reconsideration, remanded the case to this Court for consideration as on leave granted. 442 Mich. 851 (1993).
The controversy was submitted to a worker's compensation magistrate on the following stipulated statement of facts, which we have edited slightly:
Elizabeth A. Simkins is an employee of the Fisher Body Flint Plant of General Motors Corporation. She worked on the first shift, which started at 6:18 A.M.
At some time before 6:00 A.M. on September 4, 1984, Mrs. Simkins drove her car to the Fisher Body Flint Plant and parked on the Fisher Body premises in the north parking lot. She left her car and, after an unknown period, got into the car of a fellow employee. They drove onto Saginaw Street, a public street bordering the east side of the Fisher Plant, headed south to Hemphill and turned right, or west, onto Hemphill. Hemphill is a public street bordering the Fisher Plant on the south side. It has four lanes, two each for westbound and eastbound traffic.
The coemployee drove his car into a privately owned parking lot on the south side of Hemphill and parked. The lot was located almost directly across the street from the Plant Gate and about in the middle of the block. He and Mrs. Simkins alighted and, after paying the parking attendant, started across Hemphill to the Plant Gate at Post 11.
At about 5:58 A.M., twenty minutes before her shift was to start, Mrs. Simkins was struck by an automobile. At the moment that she was struck, Mrs. Simkins was going north across Hemphill and was in the eastbound inside lane near the double yellow center line.
Mrs. Simkins has been unable to perform her job since September 4, 1984.
Following the hearing, the referee awarded plaintiff disability compensation and medical and nursing care benefits, because he concluded that her injury arose out of and in the course of her employment under the "presumption" of MCL 418.301(3); MSA 17.237(301)(3) because
she had entered the "premises" when she entered the company-owned parking lot. The mere fact that she was given a ride to a closer, noncompany lot, did not remove her from the scope of her employment. The injury sustained when crossing the street to the plant gate is compensable.
On appeal, two members of the appeal board affirmed, concluding that
plaintiff's slight deviation in her route from one parking lot controlled by defendant to another not controlled by defendant, but directly across the street from the plant entrance kept plaintiff within the zone and environment and hazards of her employment.
The third member of the panel dissented on the ground that
leaving those premises to park in an undesignated private lot and to cross a street not shown to be under defendant's control or the protection against street traffic presumably provided by defendant's parking lot, placed plaintiff beyond the "zone, environment and hazards" of defendant's premises, thus depriving her of the presumption afforded by Section 301(3) of the Act.
We reluctantly agree with the dissenting member of the appeal board. We have surveyed the "going to work" parking lot decisions and can reconcile them only on the point that those that allowed benefits had at least some slight employer connection to the employee's injury, which this case lacks.
Cases allowing compensation for employees injured while going to work involved travel from a parking area owned, leased, or maintained by the employer. Lasiewicki v Tusco Products Co, 372 Mich. 125; 125 N.W.2d 479 (1963) (employer-maintained parking area); Smith v Greenville Products Co, 185 Mich. App. 512; 462 N.W.2d 789 (1990) (employer-provided parking); Upton v General Motors Corp, 124 Mich. App. 61; 333 N.W.2d 384 (1983) (driveway of employer's plant); Jean v Chrysler Corp, 2 Mich. App. 564; 140 N.W.2d 756 (1966) (employer leased a designated parking area). Compensation has been denied, however, when the injury occurred off the employer's premises, including private parking areas, in Benenetau v Detroit Free Press, 117 Mich. App. 253; 323 N.W.2d 498 (1982); Denny v Kostadinovski, 117 Mich. App. 517; 342 N.W.2d 19 (1981); Tedford v Stouffer's Northland Inn, 106 Mich. App. 493; 308 N.W.2d 254 (1981).
An anomaly from that line of cases is Fischer v Lincoln Tool Die Co, 37 Mich. App. 198; 194 N.W.2d 476 (1971), where the worker was injured on a public sidewalk while walking to work after parking his car on a public street. The employer provided no employee parking. This Court affirmed an award of compensation benefits under an interpretation of the premises rule that "embraces the liberal spirit previously accorded the workmen's compensation act." Id. at 204. Fischer has been criticized, however, for extending the premises rule too far, even threatening "demolition of the premises rule." 1 Larson, Workmen's Compensation Law, § 15.12(b), pp 4-12-4-16; see also Tedford v Stouffer's Northland Inn, supra. Of Fischer and a New Jersey case, Dinardo v Newark Bd of Ed, 118 N.J. Super. 536; 289 A.2d 259 (1972), Larson, supra at pp 4-5-4-16, says:
The real flaw in these opinions was that they ignored the special doctrine that accounts for extension of the premises rule to the trip to parking lots. This is the principle that travel between two parts of the employer's premises is compensable. By establishing or sponsoring a parking lot not contiguous to the working premises, the employer has created the necessity for encountering the hazards lying between these two portions of the premises. No such considerations apply to a trip to some bus stop or railway terminal or to some parking location on a public street over which the employer has no conceivable control.
In this case, there was no employer connection with plaintiff's accident. She was injured while crossing a public street from a private parking lot and was not yet on the employer's premises. We recognize that, had she been injured while crossing from the parking lot that the employer did provide, she would be entitled to compensation benefits under the case law, but, as Justice LEVIN recognized in a concurring opinion "a line must be drawn at some point." McClure v General Motors Corp (On Rehearing), 408 Mich. 191, 226; 289 N.W.2d 631 (1980). The decisions we have analyzed draw the line at some employer connection other than the mere fact that the employee was traveling to work but had not arrived yet on the employer's premises.
The appeal raises one other question. Valley Forge Insurance Company, plaintiff's no-fault automobile insurer, sought reimbursement from defendant of medical expenses that it had paid on Mrs. Simkins' behalf. The appeal board allowed Valley Forge to intervene, but the appeal board's majority opinion failed to address the request for reimbursement. The case is remanded to the Worker's Compensation Appellate Commission for determination of that issue if, in light of our reversal of the award, the issue remains one that the insurer wishes to or can now pursue.
The award of worker's disability compensation benefits is reversed, and the case is remanded to the appellate commission where Valley Forge may renew its petition for reimbursement.
Reversed and remanded.