You be the Judge

22 Dec You be the Judge

Thank you to everyone who sent in their answers to our “You be the Judge” article. There was a lot of good analysis in your responses. When evaluating this scenario, there are two main legal frameworks that we have to apply. First, we have to address if the Plaintiff’s injury arose out of and occurred within the course of her employment. Second, we have to address if this case would properly be viewed as a “going to and coming from” scenario.

Arising out of / In the course of employment

If an injury is to be compensable, an employee must suffer an injury “arising out of and in the course of employment.” MCL 418.301(1). However, not every injury that occurs in the course of a Plaintiff’s employment is an injury that arises out of their employment. Ledbetter v Michigan Carton Company, 74 Mich. App 330.

To show that an injury arises out of employment, a causal connection with the work to be performed must be established. Specifically, as noted in Graham v Somerville Construction Company, 336 Mich. 359., “The causative danger must be peculiar to the work and not common to the neighborhood.  It must be incidental to the character of the business.” Another portion of the opinion in Graham states “the connection between employment and the injury must be one that follows as a natural incident to the employment, be connected with it, and not the result of risk disassociated therefrom.” Therefore, we would argue that an accident involving a motor vehicle and a pedestrian is not a “natural” incident to Plaintiff’s employment, and would more properly be seen as a result of “risk disassociated therefrom.” We would also argue that the “causative danger” of being struck by an automobile in a public street is not “peculiar” to the Plaintiff’s employment. Any person who was at the same intersection as the Plaintiff at the same moment would have been injured by this automobile, regardless of their profession or employer. We believe that there is no reasonable basis on which to conclude that Plaintiff’s occupation caused her to be more likely to be struck by an automobile.

Going to / Coming from Injuries

As indicated in the seminal case of Stark v L.E. Myers Company, 58 Mich. App. 439, injuries that occur to an employee while going to and from work are not compensable. However, as is almost always the case, there are exceptions to this general rule.

The court in Stark provided four factors that can send a non-compensable “going to and coming from” case into the realm of compensability, specifically: (1) whether the employer paid for or furnished the employee’s transportation; (2) whether the injury occurred during working hours; (3) whether the employer derived a special benefit from the employee’s activities; or (4) whether the employment subjected the employee to excessive traffic exposure risk.

Within the facts provided, there is no evidence that Plaintiff’s employer paid for her transportation. Although this factor has caused much litigation by itself, it is unlikely that even if Plaintiff was being reimbursed for mileage, as many attorneys are, she would be able to satisfy this factor.

As noted in many of your responses, Plaintiff was not extremely early in arriving at the courthouse. Therefore, it could reasonably be held that the injury occurred during working hours.

Similar to cases involving employer furnished transportation, there is a whole set of case law dealing with the “special benefit” factor. Based on these facts however, there is no evidence that Plaintiff was doing anything beyond what would normally be expected of her on any given day. Therefore, any benefit the employer received based on her conduct was simply that of an employee trying to be on time for their daily work responsibilities, which hopefully is not enough to be considered “special.”

Lastly, there is no case law that establishes precisely what constitutes “excessive traffic risk.” There is, however, case law establishing that even an employee who travels over one-hundred-and-forty miles per day on interstate highways is not exposed to excessive traffic risk. In fact, the case involving those facts was Stark. Therefore, it is safe to say that, despite her injuries, Plaintiff was not exposed to excessive traffic risk at the time of her injury.

Given the instant facts, Plaintiff may only prevail on one of the four factors provided in Stark, and this is unlikely to be enough for her to prevail in showing that her situation was not a typical “going to and coming from” injury. Ultimately, Plaintiff was injured while walking across a public street, after having left a public parking lot, and although she was in route to a work assignment, there is no evidence that her employer directed her to be precisely where she was at the time she was injured. Plaintiff herself chose the parking lot and public sidewalk route to the courthouse on her own.

Within the responses we received, about 85% of the answers correctly identified this as a non-compensable injury.

Further, we can now safely say that our analysis was correct because this “hypothetical” was in fact based on a case our firm has been litigating. Shortly after our Quarterly was published, the presiding Magistrate in this case held that Plaintiff’s injury was non-compensable under the Michigan Worker’s Disability Compensation statute. The Magistrate found that Plaintiff failed to prove that the injury sustained did “arise out of and in the course of” her employment.  Further, the Magistrate did apply the above-described analysis and held that Plaintiff failed to establish any exceptions to the general rule regarding “going to and coming from” injuries. Although Hanba & Lazar was able to secure victory at the Magistrate level, we do expect an appeal given that a fairly large amount of benefits were in fact paid by Plaintiff’s auto no-fault carrier before the onset of this litigation.

We will be reaching out to our contest winner(s) later this week.

Submitted by Jonathan Rea, [email protected]

Please leave us comments/questions. If there is a topic that you would like to see discussed in this Quarterly, please let us know. Comments and questions can be directed to Jonathan Rea at [email protected].