McClure v. General Motors ( 1980 )

408 Mich. 191 (1980) 289 N.W.2d 631

McCLURE
v.
GENERAL MOTORS CORPORATION
KROLCZYK
v.
WOLVERINE MOVING & STORAGE COMPANY

Docket No. 59625.

Supreme Court of Michigan.

Argued December 5, 1978. Decided March 13, 1978. Decided March 20, 1980.

Richard P. Riordan for plaintiff McClure.

Marston & Marston, P.C., for plaintiff Krolczyk.

Willard W. Wallace, Francis S. Jaworski, and A. Ronald Sirna, Jr. (Otis M. Smith, General Counsel, of counsel), for defendant General Motors Corporation.

Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C. (William J. Heaphy, of counsel), for defendants Wolverine Moving and Storage Company and Transportation Insurance Company.

ON REHEARING

Argued, with Docket No. 60750, December 5, 1978. (Calendar Nos. 1, 2).

Decided March 13, 1978., 402 Mich. 392.

Decided March 20, 1980. Rehearing granted 402 Mich. 950q. Rehearing denied post, 1109.

RYAN, J.

We are confronted with the same issue in these cases which divided us in McClure v General Motors Corp, 402 Mich. 392; 262 NW2d 829 (1978), viz.: whether in the circumstances extant in each case, auto accident injuries^[1] suffered by workers off the premises where their work was to be performed, and during a lunchtime break, are compensable under the Worker's Disability Compensation Act^[2] as occurring out of and in the course of their employment.

The facts in both cases are accurately set forth in the opinions of our colleagues and need no restatement here.

Following the earlier McClure opinion, three of our brothers, with citation to Howard v Detroit, 377 Mich. 102; 139 NW2d 677 (1966), begin with the finding of fact that it was a "circumstance" of plaintiffs' respective employments that they "were where they were when the injuries befell them". From that premise it is further concluded that lunchtime activities are also a "circumstance" of one's employment and "incidental to the employment", and that a fortiori injuries suffered during those activities are compensable as arising out of and in the course of that employment, regardless of whether the injury occurs on or off the premises where the work is to be done.^[3]

We cannot subscribe to that combination of appellate fact-finding and reasoning.

Our brothers, writing for reversal of the Worker's Compensation Appeal Board decision and reaffirmance of McClure I, would add this case to a line of recent decisions in which this Court has expanded and broadened the sweep of workers' compensation coverage by judicial decision.^[4]

To follow that course here would see this Court effect more worker compensation law "reform" of its own, unchecked by burdensome legislative committee hearings, union and management testimonial expertise, cost analyses, consideration of the effect upon related social legislation and the risk of rejection following bicameral debate or of executive veto.

We decline to continue the ongoing dilution of the legislative requirement that, as a condition of compensability, an employee's injury must be suffered "out of and in the course of his employment" by first equating "circumstance of employment" with "out of and in the course of employment", and finally substituting the newly created judicial standard for the longstanding legislative norm. We cannot agree with our colleagues that:

"The significant inquiry in the instant cases is not whether the employees were injured while carrying out duties absolutely required by their employment contracts, but whether the injuries occurred as a circumstance of the employment relationship."

We are of the view, of course, that neither of the stated alternatives is the "significant inquiry"; that the significant inquiry is whether the injuries arose "out of and in the course of his employment".

By this case, the Court is asked to extend the scope of workers' compensation coverage in three interrelated ways:

1. To that time segment of the worker's day historically and intentionally allocated to the employee for an interruption of and withdrawal from the service of the employer, traditionally understood to be mealtime,

2. To any activity whether performed "out of and in the course of his employment", or not, in which the employee may be engaged during that period, and

3. To any place in which the employee may be during that period.

Apparently unwilling to declare this requested extension of workers' compensation coverage to be the new law it is, three of our brothers claim merely to be following the lead of Howard v Detroit, supra, stating that they "are still convinced of the soundness of [its] rationale".

In Howard, a municipal bus driver was required on the day in question to work a split shift. He drove his bus from 7:05 a.m. until 8:45 a.m., and was scheduled to drive again from 1:25 p.m. to 7:54 p.m. During the five-hour interval for which he was paid his hourly wages, and as a consequence of which he was paid an overtime rate at the end of his day, the driver left the terminal, conducted some personal business, went home for lunch and, while returning to the terminal in his car, was injured in an auto accident. With heavy reliance upon the earlier case of Bisdom v Kerbrat, 251 Mich. 316; 232 N.W. 408 (1930), a divided Court reversed an appeal board denial of benefits, stating:

"In [Bisdom v Kerbrat], plaintiff was en route to his dinner, rather than returning thereafter, but the special circumstance was created by a specific requirement of his employment on that day. It resulted from a direct order from his employer and had no application to any other day. The essential point abides. The circumstance was a deviation from his regular normal working schedule. It was for his employer's benefit and was an incident of his contract of employment. Thus it was that a circumstance of his employment placed him where he was at the time of his accidental injury. So too, it was a circumstance of his employment that placed plaintiff in this case where he was when he was accidentally injured.

"In this case, also, plaintiff had not finished his day's work. We agree with the dissenting opinion [of the WCAB] that the facts presented in Bisdom are sufficiently analogous to warrant its application here." (Emphasis added.)

Bisdom and Howard, properly read, are cases standing for the proposition that when on a given day an employee, in obedience to the employer's direction to deviate from "the regular normal working schedule" and to enter upon an interrupted and irregular schedule, including a mandatory period of "swing run" inactivity, is injured, his injuries are suffered "out of and in the course of his employment".

The significance of the Howard Court's statement that "it was a circumstance of his employment that placed plaintiff in this case where he was when accidentally injured" is in the context of employer-ordered departure from a normal work schedule of uninterrupted service.

The facts in Bisdom and Howard, which the Howard Court said were "sufficiently analogous to warrant" the same result, are totally distinguishable from those in McClure and Krolczyk. In neither of the cases before us did the lunchtime activities involve an employer-directed deviation from the worker's regular normal working schedules.

Ignoring the difference, our colleagues lift the "circumstance of his employment" language from the "deviation from his regular normal working schedule" context of Howard and Bisdom and apply it to the off-premises injuries suffered by Mr. McClure and Ms. Krolczyk during their regularly scheduled normal workday lunch hour break to create a "circumstance" by which there is entitlement to benefits.

We reject that approach because it ignores the legislative requirement that, to be compensable, the injury must occur "out of and in the course of" the worker's employment.

It may indeed have been a "circumstance" of Mr. McClure's employment that he was in the middle of Fort Street, and of Ms. Krolczyk's that she was driving a car a half-mile away from work during the lunch period, but the Legislature has not yet seen fit to provide compensation for injuries suffered by workers during off-premises lunch-hour activity of a purely personal character. Perhaps it ought to have done so long ago — but it has not, and we are not constitutionally free to do so in its place. Like it or not, the test for entitlement to compensation benefits remains "out of and in the course of" employment.

The rationale employed by the New Jersey court in Wyatt v Metropolitan Maintenance Co, 74 NJ 167; 376 A2d 1222 (1977), and Hornyak v The Great Atlantic & Pacific Tea Co, 63 NJ 99; 305 A2d 65 (1973), upon which our colleagues rely, is even less persuasive than what we perceive to be the misapplication of the "circumstance of employment" language of Howard. We share the concern expressed by Professor Larson^[5] in his critique of the Hornyak case and adopt his argument as having signal applicability to today's decision:

"Let us assume the case of an ordinary office worker in a downtown Newark office building, with an hour off for lunch, during normal daytime work. The worker sets out on foot, and a half-hour later is found somewhere in Newark, beaten and robbed in an amusement arcade, a pool room, a porno movie, or a massage parlor. Has the New Jersey court prepared itself now for the prospect of explaining how this was `reasonably incidental' to the employment? If not, what stands between it and the necessity of calling these cases compensable? Will it resort to a case-by-case attempt to label some such excursions deviations? On what principle? In its opinion it quotes a Hawaii case, Dependents of Pacheo v Orchids of Hawaii [54 Haw. 66; 502 P2d 1399 (1972)]. `An employer may derive substantial benefits from an employee who is allowed time away from the job to accomplish pressing personal business.' Thus, if an employee on the way to lunch deviated a block to buy a record, the New Jersey court would no doubt find this deviation insubstantial. Where is the line between this and the poolroom? Both relate to recreational activities of the employee. Moreover, all this presupposes that one knows (as in Hornyak) where the employee was going at the time of injury. In downtown Newark there are restaurants in all directions. If the employee is mugged, run over, or hit by a falling brick anywhere in town during lunch hour, is it to be presumed that he was on his way to lunch, or on a permissible deviation, provided only the incident occurred during that hour?

"Now suppose the case of a young female automobile assembly-line worker who never eats lunch. She uses the lunch hour to run personal errands, visit friends, and window-shop. She is injured when a bookcase falls on her while she is browsing in a bookstore. Is this to be considered reasonably incidental to automobile manufacture?

* * *

"Millions of workers go home for lunch. Presumably this trip will also be covered, along with an incalculable variety of deviations along the way. Where will coverage stop? At the employee's premises? At his front steps? Inside his door? Or perhaps he will be covered inside his own house for the entire period, while eating, and perhaps while doing little incidental things around the house. After all, how can one distinguish downtown deviations and home deviations? Perhaps he tries to fix a light switch, or chops some wood, or cleans his shotgun, or merely falls down the basement stairs with an armload of canning jars. Or perhaps he gets food poisoning from his wife's cooking. If this is not to be called `reasonably incidental' to his employment, someone had better think out in advance where the stopping point is, and what [its] rationale is."

As the Worker's Compensation Appeal Board found with conclusively binding effect, the off-premises lunchtime auto accidents which resulted in Mr. McClure's death and Ms. Krolczyk's injuries did not arise out of and in the course of their employments and thus, as the Court of Appeals has held, are not in law compensable.

We affirm.

COLEMAN, C.J., and FITZGERALD, J., concurred with RYAN, J.

LEVIN, J. (for affirmance).

The plaintiffs sought worker's compensation benefits for injuries sustained in motor vehicle accidents. The accidents occurred off the employers' premises and at lunchtime.

The issue is whether the injuries arose "out of and in the course of" the employment within the meaning of the Worker's Disability Compensation Act.^[1]

I would hold:

(1) Injuries sustained in off-premises motor vehicle accidents during the normal lunch period do not arise "out of and in the course of" the employment. An award of compensation, although consistent with the rationales of earlier lunchtime cases, would be an extension of prior case law. Under the case law extant when the no-fault insurance act was enacted, employers were not generally liable for off-premises lunchtime injuries and thus, under that act, the motor vehicle insurer of the worker or a family member would ordinarily bear the entire cost of motor vehicle injuries during the lunch period. An extension today of worker's compensation coverage to lunchtime automobile injuries would, because of § 3109 of the no-fault act,^[2] allow the motor vehicle carrier a deduction for worker's compensation benefits payable and thus work a reallocation, probably unforeseen by the Legislature, of the cost of insurance reparations for such accidents from the no-fault system to the worker's compensation system. This Court should not disturb the cost allocation extant when the no-fault act was enacted.

(2) Krolczyk's injuries were sustained after the effective date of the no-fault act. Although McClure's injuries were sustained before that date, a different rule should not be applied in his case. In light of the disposition stated in (1) above, the only remaining issue of jurisprudential significance is whether an employee is entitled to worker's compensation for off-premises lunchtime injuries not resulting from a motor vehicle accident. McClure does not present that precise issue because his injuries were sustained in a motor vehicle accident. To grant or deny benefits in a pre-no-fault motor vehicle accident case would be to set precedent, in a context not likely to recur, which might govern disposition in off-premises lunchtime injury cases generally. This being a Court of discretionary jurisdiction, we should not speak decisionally on this question at this time.

I

Gary McClure was employed at General Motors' Fleetwood Plant on Fort Street. Although a cafeteria serving hot food was maintained on the premises, employees were permitted to leave during their 30-minute unpaid meal period. There was testimony that employees who chose to stay often had to rush their eating because of long cafeteria lines. Located across Fort Street from the plant was the Fleetwood Inn, which enjoyed the lunchtime patronage of approximately 50 to 100 Fleetwood Plant employees each day.

On April 14, 1973, while crossing Fort Street on his way to the Fleetwood Inn with three co-workers, McClure was hit by an automobile and sustained injuries which resulted in his death on November 8, 1973.

Carol McClure, his widow, was awarded compensation by the administrative law judge. The Workmen's Compensation Appeal Board reversed. The Court of Appeals denied leave to appeal. On application for leave to appeal, this Court reversed the WCAB, holding that the injuries arose out of and in the course of the employment because it was a "circumstance" or "incident" of McClure's employment that placed him where he was when injured.^[3] We granted rehearing.

Kimberly Ann Krolczyk was a salaried employee of Wolverine Moving and Storage Company. A refrigerator and vending machines containing candy and soft drinks were located on the premises. There was no cafeteria. The WCAB found that employees were encouraged to leave their desks during the one-hour lunch period. Employees testified that they were told that one hour was allotted for lunch so that they could leave the premises and return refreshed for the afternoon's work. Krolczyk and all but a handful of her co-workers customarily left the premises for lunch.

On February 1, 1974, during her lunch hour, Krolczyk was injured on the way to a restaurant when the car in which she and a co-worker were driving struck a rut and went out of control approximately one-half mile from her work place.

The WCAB affirmed the referee's denial of benefits and the Court of Appeals denied leave to appeal. We granted leave to appeal, ordering the case argued and submitted with McClure on rehearing.

II

This Court's prior decision in McClure, simultaneously granting leave to appeal and reversing the WCAB without further briefing or argument, implied that the question presented could be readily answered. On the application for rehearing, it appeared that the issues were more complex than we had at first believed. At this time, it is appropriate to identify the complexities that initially escaped our attention.

A

I agree with Justice RYAN that our reliance on Howard v Detroit^[4] in our prior decision in McClure was mistaken. Howard was not really a lunchtime case. Tommie Howard was injured during a paid five-hour lull in the work, traceable to an irregular work schedule designed to suit his employer's needs. The Howard Court seems to have assumed that because Howard was injured en route to the work place (after eating lunch), the "going-and-coming" rule, which denies compensation for injuries sustained in off-premises travel to and from the work place, would have been applicable but for the irregularity of his schedule.^[5]

McClure and Krolczyk were injured during their normal unpaid lunch periods, and therefore the exception to the going-and-coming rule recognized in Howard for an irregular work schedule has no application in the circumstances of their cases.

Howard did not, however, define the outer limits of compensability, and the result reached by Justices KAVANAGH and MOODY might be justified on other grounds. Based on doctrines developed in other cases, lunchtime injuries might be held to be compensable generally or on the facts of these cases, or a separate exception to the going-and-coming rule might be recognized for lunchtime travel generally or on these facts.

B

Justice RYAN'S statements that it is an extension of prior law to award benefits for injuries incurred during the lunch period and while no services required by the contract of employment are being performed is not supportable.

Lunchtime coverage is neither novel nor remarkable.^[6] The principle that lunchtime is part of the workday was recognized by this Court in Haller v Lansing, decided in 1917,^[7] and is the law today.^[8]

The Haller Court explicitly recognized that there may be coverage although the employee is performing no services for the employer at the time of the injury.^[9] To limit worker's compensation coverage to injuries incurred during performance of work required by the contract of employment or of apparent benefit to the employer would ignore numerous holdings of this Court,^[10] and confuses the statutory term "course of employment" with the concept of "scope of employment".^[11]

For the reasons stated by Justice MOODY, it can be said that lunchtime injuries — at least when they occur on the premises — are compensable so long as the employer-employee "nexus" is not broken.^[12] In the light of Haller, it cannot be said that the nexus is broken by the lunchtime suspension of work. Rather, it remains intact so long as the employee's conduct is, in Justice MOODY'S words — which parallel the Haller rationale — "within the normal sphere of permitted and contemplated employee activity".^[13]

McClure and Krolczyk voluntarily left their employers' premises. Still, neither can, in principle, be charged with departing from the normal sphere of permitted and contemplated employee activity and therefore the employment nexus, so defined, was not broken. Both did what persons in their work situations, in the language of Haller, "may reasonably do" — "a reasonable and natural thing under existing conditions".^[14] Indeed, in leaving the premises for lunch, they were doing something that significant numbers of their co-workers did on a regular basis and with their employer's consent (and, in Krolczyk, apparent encouragement).

In sum, it would be no extension of prior law to award compensation for injuries sustained during lunchtime although the lunchtime activity has a "personal character", provided that the employment nexus is not broken.

However, in all the cases where compensation was awarded for lunchtime injuries, the injuries occurred on the employer's premises.

The only ground for distinguishing these cases from prior cases is that these injuries occurred when McClure and Krolczyk were not on their employers' premises.

The issue then is whether coverage that would otherwise extend during the lunch period is lost when an employee leaves the premises.

C

To be sure, it is difficult to articulate a principled basis for a premises cut-off. Arguably, if lunch on the premises is in the "course of employment", so too is lunch off the premises.^[15]

Justice MOODY understandably concludes that "[a]llowing compensation to be paid only where lunchtime injuries occur on the employer's premises creates a distinction without meaningful difference. An employee who crosses the premises threshold and who is injured on his way to lunch is in no real sense less in the course of his employment than his fellow worker who is injured en route to the company cafeteria". I would add that the employee who leaves the premises is in no meaningful way less in the course of his employment than his fellow worker who, about to leave the premises, trips and falls while still on the premises, as in Dyer v Sears, Roebuck & Co,^[16] where compensation was awarded.

A premises limitation is not inherent in the concept of "nexus", nor need Haller be read as limited to on-premises lunchtime injuries. Justice BLACK, dissenting in Mack v Reo Motors, Inc, where recovery for a lunchtime injury was denied, said:

"I now move * * * that so-called intermission cases, and this one equally with Salmon, be guided again by the precepts of Haller v City of Lansing, supra. Such precepts, and I do not wish to be understood as limiting their scope to the employer's premises if `nexus between workman and employer' remains unbroken, are introduced on page 758 of the Haller Case in language I have previously quoted, and they continue to the end thereof."^[17]

Mack was overruled and Haller restored in Dyer.

This Court has not, however, applied the "nexus" test to off-premises lunchtime injuries, nor has it held the going-and-coming rule inapplicable to lunchtime travel.^[18] The extension of Haller to off-premises injuries, although it has logical appeal, is not necessarily compelled.

In four Michigan cases decided between 1914 and 1940, compensation for lunchtime travel injuries was denied, the Court, explicitly or implicitly, applying the going-and-coming rule.^[19] One or more of these cases might be distinguished from the instant cases; it is uncertain, though, whether the factual differences suggest any reason why the going-and-coming rule, if applicable to those lunchtime injuries, should not be applicable to lunchtime injuries of the kind that occurred in the instant cases.

All four cases eventually turned on whether the employee was actively serving his employer at the time he was injured. I agree with Justices KAVANAGH and MOODY that this is too narrow an inquiry. Strict reliance on whether the employee was performing services for his employer is inconsistent with the "nexus" principle, with this Court's subsequent decision in Crilly v Ballou,^[20] which unequivocally held that "[c]ourse of employment is not scope of employment" and which specifically recognized that an employee's "human deviations" are within the course of employment, with Howard's award of compensation in spite of the observation that the decision to leave the premises was voluntary,^[21] and with later cases awarding compensation during non-working time.^[22] Thus, it could be argued that the four cases, because they relied on an outdated principle, have been superseded by subsequent decisions of this Court.

The cases might, however, be read as imposing higher standards for qualifying for compensation where the injury occurs off the premises.^[23] If so, it could then be argued that there are two distinct lines of cases which taken together mean: "Lunchtime injuries on the premises are covered so long as the nexus is unbroken, but lunchtime injuries off the premises are covered only if service for the employer is being performed or some other exception to the going-and-coming rule applies." This, we note, would only lead us back to the starting point: Can this Court, consistent with logic or reason, justify the continued existence of a distinction between on-premises and off-premises injuries?

(1)

The Legislature has provided special treatment for some injuries on the employer's premises by enacting the "on-premises" amendment:

"Every employee going to and from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment."^[24]

This amendment does not, however, purport to limit coverage to only "on-premises" injuries; the statutory presumption that on-premises injuries are compensable carries no negative implication that off-premises injuries are not.^[25]

Haller awarded compensation applying the nexus test and did not rely on the concept, later embodied in the amendment, that particular injuries might be compensable simply because they occurred on the premises. Justice TALBOT SMITH elaborated the nexus principle in his influential dissent in Salmon v Bagley Laundry Co, 344 Mich. 471, 490; 74 NW2d 1 (1955), again without reference to or reliance on the concept embodied in the on-premises amendment.^[26] Although Dyer, the case in which Haller was reinstated,^[27] and Lasiewicki v Tusco Products Co,^[28] the only post-Dyer lunchtime injury case decided by this Court, were based on the "on-premises" presumption, the Court did not thereby reject the independently developing principle enunciated in Haller.

It would not be inappropriate, therefore, to extend principles developed, independently of the amendment, in the construction of "out of and in the course of", when or if it is concluded that those principles cannot be logically or reasonably limited to on-premises injuries. The amendment does not limit the Court's power to do so.

(2)

Another argument in support of a premises cut-off is based on the nature of worker's compensation decision making. One commentator has noted that any given worker's compensation decision represents a balancing of many factors, one implication being that principles developed in one context in which certain factors are present — here, presence on the premises — should not be automatically extended to a separate context, off-premises injury.^[29]

It might be that the meaning of the cases is that compensation is allowed whenever there is some factor on which liability can justifiably be appended: the employee was either performing services, being paid or on the premises. Or, it may be that courts have been willing to allow compensation for virtually any on-premises injury because a worker's compensation award relieves the employer of the duty of defending himself in a tort suit, based on ownership or control, which the employee might otherwise bring.

These theories might well explain a premises cut-off although they do not adequately justify it. The "tort trade-off" is something the Legislature might appropriately take into consideration when drafting legislation; it is difficult to see how such concerns have any proper place in adjudicating whether a particular employee was or was not "in the course of" his employment, especially now that it is well established that worker's compensation coverage is available although the employer was not at fault for causing the injury,^[30] or in control of the employee when injured,^[31] and the employment neither increased the risk of injury^[32] nor was the proximate cause thereof.^[33]

D

Although the theoretical justifications for distinguishing on- and off-premises injuries are weak, a clear majority of jurisdictions that have addressed the question deny coverage for off-premises injuries.^[34]

Larson, an avid exponent of the premises limitation, acknowledges that "[a]s to the conceptual category of reasons, no one has ever denied that there is no theoretical, ethical or intellectual reason why coverage of the going-and-coming trip should be limited to the premises",^[35] but explains "[t]he real reason for the premises rule is, and always has been, the impracticality of drawing another line at such a point that the administrative and judicial burden of interpreting and applying the rule would not be unmanageable".^[36]

A line must be drawn at some point. The premises line might be the appropriate cut-off. The work connection is at least apparent on the premises; administratively, it is relatively easy to determine whether an injury occurred on or off the premises;^[37] the premises line is one which one can be certain has legislative approval; and, its rejection could extend liability disproportionately.^[38]

This, then, is the tension: a premises cut-off is inconsistent with the principles announced in Haller and its progeny; practical considerations may, however, warrant the retention of this seemingly arbitrary limitation. A decision either for or against coverage can be justified.

There is, however, another dimension: McClure and Krolczyk sustained their off-premises lunchtime injuries in motor vehicle accidents.

II

In 1973, the no-fault act^[39] went into effect providing benefits for injuries sustained in motor vehicle accidents. An injury compensable under that act might also be compensable under the worker's compensation act because it arose "out of and in the course of" the employment.

Section 3109(1)^[40] of the no-fault act allocates the cost of reparations for such injuries between the no-fault and worker's compensation systems: the liability of the no-fault insurer is reduced by the amount of worker's compensation benefits payable.^[41]

At the time such set-off was enacted and the legislative allocation made, it was not the law of Michigan that off-premises lunchtime injuries were compensable under the worker's compensation act; coverage for injury sustained in lunchtime motor vehicle accidents had been denied by this Court on three separate occasions.^[42] Thus, the legislative allocation was made in the context that the motor vehicle insurance system bore the entire cost of insurance reparations for off-premises lunchtime motor vehicle accidents.

As previously set forth, the extension of coverage sought here can be justified. One might find that the lunchtime motor vehicle cases where coverage was denied are distinguishable, have been superseded, or ought to be overruled; the extension of the Haller rationale to off-premises injuries may seem logically compelled.

Nevertheless, an award of benefits today would be an extension of prior law, one not fairly foreseeable by the Legislature. When lunchtime coverage has been granted in recent years, it has been on the basis of the on-premises amendment.^[43] Benefits have never been awarded for off-premises travel injuries sustained during a normal lunch period; and when benefits have been awarded for an off-premises (non-lunch) travel injury, it has been under one of the traditional exceptions to the going-and-coming rule^[44] or in circumstances the Court stressed were special.^[45] This Court has never indicated that the creation of a lunchtime exception to the going-and-coming rule was imminent.

A decision in favor of coverage for such injuries, then, would cause § 3109(1) of the no-fault act to work a reallocation of the cost of insurance reparations for lunchtime motor vehicle accidents, one probably not anticipated by the Legislature when § 3109 was enacted. This Court should not disturb the allocation of the burden of providing such reparations struck by the Legislature when it enacted the no-fault act.

It is no answer to say that because the purpose of § 3109 was to reduce the cost of no-fault insurance, a reallocation of the cost of lunchtime motor vehicle accidents away from the no-fault system furthers the Legislature's purpose. The legislative decision embodied in § 3109 may have been based on assumptions regarding the existing costs to the worker's compensation system that did not include payment for lunchtime automobile injuries generally. An extension of worker's compensation liability to lunchtime automobile injuries not previously covered would impose on that system the greater part of the burden of providing insurance reparations for injuries heretofore compensated through the motor vehicle insurance system.^[46]

I would, therefore, hold that injuries resulting from off-premises motor vehicle accidents occurring during the normal lunch period in circumstances in which no previously recognized exception^[47] to the going-and-coming rule is applicable, do not arise "out of and in the course of" the employment.

III

McClure's injury was sustained before the effective date of no-fault. The disposition set forth in Part II might be limited to injuries arising after the effective date of the act (such as Krolczyk's), and McClure's case decided without regard to the impact of no-fault.

Although McClure's injury was sustained before no-fault, subsequent cases arising in the same factual context — motor vehicle accidents — will not be governed by anything we might separately say in respect to McClure, but rather by the disposition set forth in Part II, supra.

The only issue of jurisprudential significance left unresolved by the disposition in Part II is whether the Worker's Disability Compensation Act covers off-premises lunchtime injuries not sustained in motor vehicle accidents.

That question, as I have indicated, is a difficult and troublesome one. There is no satisfactory basis in theory for denying coverage merely because the premises threshold has been crossed; practical considerations may, however, militate against extension of coverage beyond the premises.

That difficult issue should be resolved only in a case presenting that precise question. A separate decision in McClure would color the disposition of the issue left unresolved today.

The Legislature may speak before the issue is before us.

Although case-by-case construction of the phrase "out of and in the course of" may be preferable to a legislative attempt to develop a scheme of detailed rules purporting to cover every possible situation in which a claim for compensation might arise, there are times when legislative guidance in the form of a specific rule applicable to a recurring class of cases is appropriate.

This is such a case. The Legislature can tell us, simply and unequivocally, whether coverage that would ordinarily exist during the lunch period is lost if the injury is sustained off the employer's premises. The Legislature has provided this sort of specific guidance once before, when the "on-premises" amendment was passed.

I join in affirming the WCAB in both McClure and Krolczyk.

KAVANAGH, J.

We granted rehearing in McClure and leave to appeal in Krolczyk for the purpose of considering whether the workers' lunchtime injuries arose out of and in the course of their employment. MCL 418.301; MSA 17.237(301).

I

Gary McClure, deceased husband of plaintiff Carol McClure, was employed at the General Motors Fleetwood Plant in Detroit. The Fleetwood Plant occupies a corner bounded by West Fort St., running east and west, and by West End Ave., which runs north and south. The plant is located south of Fort St. and west of West End Ave.

The Fleetwood Inn, a bar, is located across Fort St. from the Fleetwood Plant and approximately 200 feet west of the intersection of West End Ave. and Fort St.

Gary McClure was working his usual shift on April 14, 1973, the day he sustained the injuries which resulted in his death on November 8, 1973. The shift began at 6 a.m. and was to end at 2:30 p.m., with a 30-minute unpaid lunch break.

A cafeteria and lunch wagon were provided on the premises of the plant for the convenience of the employees. There was no requirement that the employees utilize these facilities and they were permitted to go off the plant premises for lunch. Approximately 50 to 100 employees, including Gary McClure, habitually chose to lunch at the Fleetwood Inn, which on a direct line was located about 75 yards away from the plant.

On the day of the injury, he and some others were going to the Fleetwood Inn for lunch. Instead of crossing at the intersection where there were traffic signals, McClure attempted to cross Fort Street in mid-block and was struck by an automobile.

The administrative law judge awarded workers' compensation benefits on September 19, 1974. The appeal board reversed on October 13, 1976, holding that the injuries and consequent death did not arise out of and in the course of employment. The Court of Appeals denied leave to appeal on March 25, 1977.

On March 13, 1978, this Court reversed in a per curiam opinion. We held that the injuries did arise out of and in the course of employment because it was as "`a circumstance of his employment'" and "as an incident of the employment relationship" that McClure found himself where he was at the time he was injured. 402 Mich. 392, 395; 262 NW2d 829 (1978). A motion for rehearing was filed by defendant and granted by this Court on June 5, 1978.

Kimberly Ann Krolczyk seeks compensation for lunchtime injuries she suffered on February 1, 1974. She was a salaried employee at defendant Wolverine Moving and Storage Company in Livonia. She worked daily from 8 a.m. to 5 p.m., and was entitled to a one-hour lunch break.

Vending machines containing candy and soft drinks were located on the premises. A refrigerator was furnished in the ladies' restroom, but no facilities for hot meals were provided. In its opinion, the appeal board stated that the employees were encouraged to leave their desks during the lunch period. There was testimony that the reason the employees were given an hour for lunch was to provide them an opportunity to leave the premises, and thus segment the workday, so that the employees could return refreshed for the afternoon's work.

Plaintiff customarily went to lunch off the premises. On the day she was injured, plaintiff and a coworker were driving to a restaurant where, approximately one-half mile from defendant's place of business, their car struck a rut and went out of control. As a result plaintiff sustained severe injuries.

The appeal board affirmed the referee's denial of benefits on August 12, 1977. After the Court of Appeals denied leave to appeal, this Court granted the plaintiff's application for leave to appeal on June 5, 1978, ordering the case argued and submitted together with McClure.

II

The defendants in each of these cases contend that the contracts of employment did not require, directly or indirectly, that the employees be where they were at the time of the injuries. Therefore, defendants argue, the injuries did not arise out of and in the course of employment. We reject this argument and hold that the injuries are compensable.

In the initial McClure opinion, we cited Howard v Detroit, 377 Mich. 102, 109; 139 NW2d 677 (1966), wherein compensation was granted the employee bus driver even though "no incident of plaintiff's employment required him in an absolute sense to leave the terminal during the 5-hour interval" between his morning and afternoon shifts. (Emphasis in original.) Despite the lack of compulsion, this Court held in Howard that because "it was a circumstance of his employment that placed plaintiff in this case where he was when he was accidentally injured", he was entitled to compensation benefits. 377 Mich. 110. We are still convinced of the soundness of that rationale. The significant inquiry in the instant cases is not whether the employees were injured while carrying out duties absolutely required by their employment contracts, but whether the injuries occurred as a circumstance of the employment relationship. We are satisfied they did.

In both McClure and Krolczyk, the workers were permitted to go off premises for their lunch.^[1] Indeed, Kimberly Ann Krolczyk was encouraged to do so because of the benefits accruing to the defendant in having a refreshed employee. Their freedom to do as they wished during lunchtime was limited by the requirements of their employment. In Wyatt v Metropolitan Maintenance Co, 74 NJ 167; 376 A2d 1222 (1977), the New Jersey Supreme Court upheld an award of benefits to an employee injured during lunchtime and while off the premises of his employer. The court stated, 74 NJ 171:

"[A]n employee who interrupts his work and leaves his place of employment for lunch knows that he has not completed his workday and that he will be returning as soon as his lunch is over. His time is not really his own. [Hornyak v The Great Atlantic & Pacific Tea Co, 63 NJ 99, 107-108; 305 A2d 65 (1973)]. Midday meal periods have long been recognized as an integral part of the work routine."

It was a circumstance of their employment that McClure and Krolczyk were where they were when the injuries befell them. During the workday when an employee is injured in the course of an activity which is incidental to the employment the injuries are said to have arisen out of and in the course of that employment. This is true whether the injury arises on the premises^[2] or off the premises.^[3] The lunch breaks in both McClure and Krolczyk were incidental to their employment.

We do not by this holding impose upon the employer the burden of guaranteeing the general health and well-being of the employee. As we stated in the first McClure opinion, recognizing that these injuries arose out of and in the course of the employment "does not require abandonment of the general rule that injuries sustained while going to or coming from work do not arise out of and in the course of one's employment, except as modified by MCL 418.301(2); MSA 17.237(301)(2)". 402 Mich. 392, 395, fn 2. See, also, Wyatt, supra, 171-172.

Reversed and remanded to the Workmen's Compensation Appeal Board for proceedings consistent with this opinion.

WILLIAMS and BLAIR MOODY, JR., JJ., concurred with KAVANAGH, J.

BLAIR MOODY, JR., J. (dissenting).

Under the facts presented in each of the instant cases an award of compensation is warranted. Both injuries arose out of and in the course of employment. MCL 418.301; MSA 17.237(301).

In 1970, our Court stated in Whetro v Awkerman, 383 Mich. 235, 242-243; 174 NW2d 783 (1970):

"Fault has nothing to do with whether or not compensation is payable. The economic impact on an injured workman and his family is the same whether the injury was caused by the employer's fault or otherwise.

"We hold that the law in Michigan today no longer requires the establishment of a proximately causal connection between the employment and the injury to entitle a claimant to compensation. The cases which have allowed recovery for street risks, increased risks, and on-the-premises accidents were made without consideration of the proximate causal connection between the nature of the employment and the injury. They have brought the law in Michigan to the point where it can be said today that if the employment is the occasion of the injury, even though not the proximate cause, compensation should be paid." (Footnotes omitted.)

To be compensable, the injury suffered must have occurred in the course of employment. Course of employment may not be equated with scope of employment.^[1] Rather, the concept of course of employment was formulated to encompass activity falling within the normal sphere of employee activity associated with the work routine.

Over 60 years ago, this Court correctly recognized that an employee injured during the lunch period, while not actually performing the work of his employer, may be engaged in an activity in the course of employment. In Haller v Lansing, 195 Mich. 753; 162 N.W. 335 (1917), an injury suffered on the employer's premises during the lunch hour was held to have occurred in the course of employment, based upon the following principles:

"[D]irectly applied to the noon intermission, it is a long and well-settled rule that the service tie, or contractual relations and obligations between master and servant, is not broken by such suspension of all activities directly beneficial to the employer.

"`A workman is considered in the employment of his master during the intermission for the noon hour if he remains upon the premises.' Baldwin on [Personal] Injuries (2d ed), § 374.

* * *

"[W]hile such relation so continues, an injury to an employee may arise out of and in the course of his employment, although he is not directly engaged in the work of his employment at the time." Haller, supra, 758-759.

The Haller Court opined that the employee in that case was injured in an activity reasonable for a worker to engage in during a lunch period at a place it was reasonable for the employee to be located. The "employment nexus" remained intact, not having been broken by employee conduct such as wilful misconduct or disregard of employer instructions regarding time, place and nature of permissible employee activity.

The soundness of the Haller rationale was reaffirmed in Dyer v Sears, Roebuck & Co, 350 Mich. 92; 85 NW2d 152 (1957), where an injury suffered on the employer's premises during the lunch period was held to have arisen out of and in the course of the employment.^[2]

The reasoning employed by the Haller Court was also adopted and expanded upon by Justice TALBOT SMITH dissenting in Salmon v Bagley Laundry Co, 344 Mich. 471; 74 NW2d 1 (1955).^[3] In Salmon the employee sustained an injury upon the steps of the employer's premises during a coffee break while returning from a restaurant located across the street from the premises. Justice SMITH concluded the injury occurred in the course of employment, proffering the following rationale:

"The words `course of employment' in our act include the coffee break simply because the product, which must shoulder the burdens of injuries in its manufacture, is made by a human being. He brings to his work all of his human characteristics, his frailties as well as his virtues. * * * `Course of employment' is not a sterile form of words. It is descriptive of life in the industrial age. These human deviations from the course of the automaton do not suspend the employer-employee relationship. They are not departures from employment, but the very substance of it. They are the inevitable concomitants of the working relationship and conditions which produce the product. Its cost must reflect the fatigue, the irritations, and sometimes the blood that went into it. * * *

"[T]he course of employment of a human being * * * includes not only his repetitive acts at the machine to which he is assigned, but includes, as well, his ministrations to his human needs. Some courts have explained these cases on the theory of `indirect benefit' to the employer, since an uncomfortable employee does not efficiently serve his employer, some on the theory of mutual benefit, since the gratification of the need is also a solace to the worker. Recovery in this case, the record makes clear, could be rested on either of these grounds as appears from the background of the contractual provisions concerning the coffee break".^[4]

"Our decision, however, should not be grounded upon the benefit theory since there is a more fundamental principle involved. It is well described in one of our early decisions. In the case of Haller v Lansing, 195 Mich. 753, 758-760 (LRA1917E, 324), a claim arose out of an employee's accidental death from injuries suffered on his employer's premises during his lunch hour. * * * In approving the compensation awarded we said, in part:

"`He was doing a natural and apparently innocent thing, which a workman while employed may reasonably do, especially at a time of intermission from active work.'

* * *

"Here, then, is the reason for the compensation award: His injury was suffered during his working day while he was doing a natural thing, a thing which an employee, while working, might reasonably do. The fundamental inquiry is whether or not the act in question, either because of its nature, or local custom, or contractual provision, is reasonably to be regarded as part of the on-the-job activities of the human being involved, a part of his normal and reasonable sphere of activities. If so, it takes place `in the course of his employment.'" Salmon, supra, 486-488, 490.

The activities of the employees in the instant cases, at the time of injury, fell within the course of their employments. Lunch periods are now customarily considered an integral part of the work routine. The employment agreements of both employees provided that the employees be permitted, during the course of their working day, a certain period of time for lunch.^[5] The duration of each lunch period was definite and reasonably brief. Both injuries were suffered during the time period designated for lunch.

The injuries in both cases occurred off the employer's premises.^[6] Both employees were injured at places it was reasonable for them to be located during the lunch period. Both employers either acquiesced in or actually encouraged the employee practice of departing from the premises to obtain refreshment elsewhere.^[7] In leaving their place of work, neither employee was disobeying any reasonable employer rule or instruction.

Allowing compensation to be paid only where lunchtime injuries occur on the employer's premises creates a distinction without meaningful difference. An employee who crosses the premises threshold and who is injured on his way to lunch is in no real sense less in the course of his employment than his fellow worker who is injured en route to the company cafeteria. Application of this rule is certainly questionable where the facts indicate that no lunch facilities or no adequate facilities have been provided on the premises.^[8]

Finally, at the time of injury both employees were traveling to a place for the purpose of obtaining lunch, an activity reasonably related to the purpose for which the lunch period was created. Their conduct was reasonable and within the normal sphere of permitted and contemplated employee activity. The employment nexus remained intact.

Accordingly, for these additional reasons it is concluded that the injuries suffered by both employees arose out of and in the course of their respective employments.

WILLIAMS, J., concurred with BLAIR MOODY, JR., J.

NOTES

[1] Mr. McClure's injuries ultimately proved fatal.

[2] MCL 418.301; MSA 17.237(301).

[3] As is indicated in his separate opinion for affirmance on other grounds, Justice LEVIN is no longer of that view, at least with respect to the facts of these cases.

[4] West v Barton-Malow Co, 394 Mich. 334; 230 NW2d 545 (1975) (To qualify for dependent's death benefits, woman married to one man is nevertheless declared a dependent member of another man's family); Martin v Ford Motor Co, 401 Mich. 607; 258 NW2d 465 (1977) (Court reverses WCAB finding of fact that plaintiff failed to prove work-related aggravation of loss of use of legs and arm); Dressler v Grand Rapids Die Casting Corp, 402 Mich. 243; 262 NW2d 629 (1978) (Claimant's willfully false representation to employer that he had not previously been treated for back trouble is held to be no bar to recovery of benefits for back injury but would bar an occupational disease claim); Deziel v Difco Laboratories, Inc (After Remand), 403 Mich. 1; 268 NW2d 1 (1978) (Claimant is entitled to recover benefits for physical or mental injury without showing any actual nexus between the injury and his employment, as long as the claimant "honestly perceives" the existence of a nexus); Redfern v Sparks-Withington Co, 403 Mich. 63; 268 NW2d 28 (1978) (Worker entitled to benefits for "insanity" if shown to have "severe social dysfunction" and for "imbecility" if shown to have "severe cognitive dysfunction", notwithstanding expert medical disagreement with such definitions and despite no loss of earning capacity); Betts v Ann Arbor Public Schools, 403 Mich. 507; 271 NW2d 498 (1978) (Fourth-year university education-degree candidate performing university required "student teaching" at one of defendant's schools, despite having no employment contract and being paid no salary, wages or remuneration of any kind, is an employee for purposes of entitlement to benefits); Kostamo v Marquette Iron Mining Co, 405 Mich. 105; 274 NW2d 411 (1979) (WCAB finding of fact that claimant failed to sustain burden to prove that heart damage was work-related is set aside and case remanded to WCAB "for further proceedings" because WCAB gave "preclusive effect" to testimony of medical expert and failed to "treat" facts developed in lay testimony).

[5] 1 Larson, Workmen's Compensation Law, § 15.12, pp 4-13, 4-14.

[1] Worker's Disability Compensation Act of 1969, MCL 418.101 et seq.; MSA 17.237(101) et seq.

Section 301 of the act, MCL 418.301; MSA 17.237(301) provides in part:

"(1) An employee, who receives a personal injury arising out of and in the course of his employment * * * shall be paid compensation * * *."

[2] MCL 500.3109; MSA 24.13109.

[3] McClure v General Motors Corp, 402 Mich. 392; 262 NW2d 829 (1978).

[4] Howard v Detroit, 377 Mich. 102; 139 NW2d 677 (1966).

[5] "It is the difference between plaintiff's conduct pattern as affected by his work schedule on `regular run days' and `swing run days' that gives rise to this appeal."

"[A] condition of his employment required plaintiff to begin his work day at 7 a.m., work till 8:45 a.m., interrupt his work for 5 hours and resume work again at 1:28 p.m. This fact of his employment contract subjected plaintiff to a situation entirely different in nature from that to which the `regular run' drivers on the same run * * * were subjected. For this reason we believe the majority opinion [of the appeal board] erred in the ultimate conclusion that plaintiff was `merely on his way to [or from] work.' This is precisely what plaintiff was not doing." Id., 107, 109-110.

[6] "Injuries occurring on the premises during a regular lunch hour arise in the course of employment, even though the interval is technically outside the regular hours of employment in the sense that the worker receives no pay for that time and is in no degree under the control of the employer, being free to go where he pleases." 1A Larson, Workmen's Compensation Law, § 21.21(a), p 5-5 (emphasis in original).

This coverage extends to the on-premises journey between lunchroom and workstation, 1 Larson § 15.51, pp 4-91 et seq., and to injuries incurred when the employee engages in on-premises lunchtime recreation, 1A Larson, § 22.10, pp 5-71 et seq.

[7] Haller v Lansing, 195 Mich. 753; 162 N.W. 335 (1917).

[8] Haller was overruled in Mack v Reo Motors, Inc, 345 Mich. 268; 76 NW2d 35 (1956). Mack was then overruled in Dyer v Sears, Roebuck & Co, 350 Mich. 92; 85 NW2d 152 (1957), and Haller reinstated at that time.

[9] "As directly applied to the noon intermission, it is a long and well-settled rule that the service tie, or contractual relations and obligations between master and servant, is not broken by such suspension of all activities directly beneficial to the employer." Haller v Lansing, supra, p 758.

[10] See, e.g., Haller v Lansing, supra; Dyer v Sears, Roebuck & Co, supra; Fidelity & Casualty Co of New York v DeShone, 384 Mich. 686; 187 NW2d 215 (1971); Thomas v Certified Refrigeration, Inc, 392 Mich. 623; 221 NW2d 378 (1974); Nemeth v Michigan Building Components, 390 Mich. 734; 213 NW2d 144 (1973).

See also Salmon v Bagley Laundry Co, 344 Mich. 471, 488; 74 NW2d 1 (1955), where Justice TALBOT SMITH, dissenting, expressly avoided relying on "the benefit theory" (employer benefits if employees are refreshed) as ground for awarding compensation.

[11] "Course of employment is not scope of employment. The former, as the cases so clearly reveal, is a way of life in a working environment. If the injury results from the work itself, or from the stresses, the tensions, the associations, of the working environments, human as well as material, it is compensable." Crilly v Ballou, 353 Mich. 303, 326; 91 NW2d 493 (1958).

[12] "From an examination of cases * * * in which it has been held that an employee injured on the premises of his employer during the noon hour or other temporary suspension of work was not under the act, we think it manifest that the controlling reason for denying an award in those cases rests upon the proven facts that the employee broke the so-called nexus between workman and employer by some manifestly reckless and unreasonable hazard, amounting to intentional and wilful misconduct, or by disregarding, or disobeying, some warning of danger at the place of injury or prohibition relating to the thing being done * * *" (emphasis added). Haller v Lansing, supra, p 761.

[13] "He was doing a natural and apparently innocent thing, which a workman while employed may reasonably do, especially at a time of intermission from active work." Haller v Lansing, supra, p 758.

See also Salmon v Bagley Laundry Co, 344 Mich. 471, 490; 74 NW2d 1 (1955) (SMITH, J. dissenting): "Here, then, is the reason for the compensation award: His injury was suffered during his working day while he was doing a natural thing, a thing which an employee, while working, might reasonably do. The fundamental inquiry is whether or not the act in question, either because of its nature, or local custom, or contractual provision, is reasonably to be regarded as part of the on-the-job activities of the human being involved, a part of his normal and reasonable sphere of activities. If so, it takes place `in the course of his employment.'"

[14] Haller v Lansing, supra, pp 758, 763.

[15] Only the New Jersey Supreme Court has explicitly accepted this approach. Rejecting the suggestion that an employee who leaves the premises at lunchtime "abandons" his employment — a concept apparently equivalent to breaking the nexus — it held the "going-and-coming" rule inapplicable to lunchtime travel. Hornyak v Great Atlantic & Pacific Tea Co, 63 NJ 99; 305 A2d 65 (1973); Wyatt v Metropolitan Maintenance Co, 74 NJ 167; 376 A2d 1222 (1977). The North Dakota Supreme Court awarded compensation for an off-premises lunchtime travel injury, but its basis of decision is unclear; it did not, however, expressly create a lunchtime exception to the "going-and-coming" rule. Desautel v North Dakota Workmen's Compensation Bureau, 72 ND 35; 4 NW2d 581 (1942), (After Remand) 75 ND 405; 28 NW2d 378 (1947).

Other courts have allowed recovery for off-premises lunchtime injuries in particular circumstances. Denver School District #1 v Industrial Comm, 196 Colo 131; 581 P2d 1162 (1978) (teachers injured going to restaurant on day on which cafeteria was closed, entitled to compensation); Mission Ins Co v Workers' Compensation Appeals Board, 84 Cal App 3d 50; 148 Cal Rptr 292 (1978) (coverage only if employee is paid during lunchtime); Hansen v Superior Products Co, 65 Idaho 457; 146 P2d 335 (1944) (employee was paid during lunch and no hot meals were available on the premises).

This Court, conceivably, could also establish only a limited lunchtime rule, perhaps with the result that only one of the instant claimants would recover: coverage might turn on whether hot food was available, whether the food service was "adequate", whether going out to lunch generally or going to a particular restaurant had been so standard a part of the employee's work pattern that it can be said that the trip on which the injury occurred must have been within the employer's contemplation.

Coffee-break injuries seem to have received special consideration in other jurisdictions and have been more frequently compensated than lunchtime injuries. See, 1 Larson § 15.54, pp 4-107 et seq. The fact that the injury in Salmon v Bagley Laundry Co, supra, took place during a coffee break rather than at lunchtime appears, however, to have been assigned no particular importance in our jurisprudence.

[16] Such an employee, of course, is within the "on-premises" amendment, discussed infra.

[17] Mack v Reo Motors, Inc, supra, p 278 (BLACK, J. dissenting). The passages in Haller to which Justice BLACK refers are quoted in part in fns 9, 12 and 13, supra.

[18] While a necessary side effect of extending principles developed in on-premises injury cases to off-premises injuries sustained during travel would be to hold the going-and-coming rule inapplicable to the lunch period, the rule would have continued application to pre- and post-workday travel.

Lunchtime travel can be distinguished from the journey before and after the workday. Work requirements set the starting and ending times of the lunchtime trip; the work limits the employee's choices and conditions his tastes.

Larson's argument to the contrary, § 15.12, p 4-12, is unpersuasive.

He argues that the employee is no less free at lunchtime than he is at any other time, since the legal obligation to return to work after lunch is no greater than the obligation to report to work at any other time. I do not think that the question whether the employee is more or less free at lunchtime depends on his legal "obligation" to work. Assuming he intends to stay in good standing with his employer, he is less free at lunchtime: he can start his travel to work at whatever time he chooses and there is no employment-related time at which he must arrive at home at the end of the day. The lunchtime trip, however, has its starting and ending time (and place) designated by the employer.

Larson also argues that the element of "hurry" only confuses the issue. "Suppose the employee is an executive taking two hours out for lunch." 1 Larson, p 4-12. It is elementary, however, that workmen's compensation cases turn on the facts of each case. If time permits the employee to wander errantly, if the work does not in fact limit the employee's range of activity, or color his tastes, then it would not be difficult to deny recovery.

One must keep in mind that the going-and-coming rule is not a "rule" as much as a restatement of the conclusion reached in past cases that travel injuries under consideration did not arise in the course of employment; a finding that a particular injury did so arise should automatically render the going-and-coming rule inapplicable. Specifically, an exception to the rule is properly recognized when application of the rule that "lunchtime is covered time so long as the employment nexus is unbroken" leads to the conclusion that a particular off-premises injury should be compensated; as in (but not because of) Howard, it can then be said that the employee was not "merely" on his way to or from work.

Failure to relax the going-and-coming "rule" in the face of the principle that "lunchtime injuries wherever they occur are compensable so long as the employee is doing that which he might reasonably do" could create the anomalous situation of allowing recovery for injuries at a restaurant — because eating at a restaurant is a reasonable thing for an employee to do — but denying recovery for injuries during travel to the restaurant because travel injuries fall within the going-and-coming rule.

[19] Furino v Lansing, 293 Mich. 211; 291 N.W. 637 (1940), and Cherewick v Morris G Laramie & Son, Inc, 295 Mich. 570; 295 N.W. 268 (1940), both concerned employees with no permanently fixed job sites. Michael Furino was assigned to street crews, and was injured in an automobile accident during the lunch period when traveling to the city shed where he had left his lunch. Stephen Cherewick was a power shovel operator who, on the day of his injury, completed work at one location before lunch and was to appear after lunch at a different location; he was injured in an automobile accident when traveling from his home, where he had eaten lunch, to the second job site.

The Cherewick Court stated that it could not disturb the board's finding of fact that Cherewick was not in the course of his employment, but was merely on his way to resume his employment, and observed that his lunchtime travel was indistinguishable from the journey before and after the workday. Although one might argue that this was so because his workday, divided between separate job sites, was as if two separate workdays, the board's decision appears to have been based on a finding that Cherewick was performing no service for his employer during the lunch period. The denial in Cherewick was with citation to Furino in which benefits were denied because no service was being performed for the employer at the time of injury and the travel was not in an employer-owned vehicle.

Hills v Blair, 182 Mich. 20, 27; 148 N.W. 243 (1914), concerned an employee who, along with his co-workers, customarily ate lunch on the premises, but who, on the day in question, left for work before his wife had packed his lunch. He was killed on his way home for lunch.

The Court applied the going-and-coming rule and denied compensation. The exception for an employee "engaged in his employer's business, discharging any duty or on any errand connected with his employment" was not supported by the facts and the employee was not aided by the rule that "the employment is not limited by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and opportunity, before and after, while he is at or near his place of employment".

In Lipinski v Sutton Sales Co, 220 Mich. 647; 190 N.W. 705 (1922), the employee, a salesman who usually spent his workday making calls on customers, stayed at the central salesroom because of a special sale. He was injured in an automobile accident when returning to the salesroom from his home where he had eaten lunch. The Court, citing Hills, denied compensation because no exception to the going-and-coming rule applied.

For various reasons one might say that these decisions do not or ought not control today's cases. Hills and Lipinski involved departures from the employee's typical daily patterns; they can be distinguished from today's cases in that one cannot say of them that the activity was, by informal custom, something a worker similarly situated might reasonably and naturally do as part of a normal workday and therefore within the employer's contemplation. Furino and Cherewick were decided at the time of Michigan's parsimony in worker's compensation law, see Mack v Reo Motors, Inc, supra, p 281; one might dismiss them as tainted by this parsimony and as superseded by the resurgence in the 1950's of Haller's "naturally and reasonably" test of whether the nexus has been broken and Crilly's expanded concept of "course of employment".

[20] Crilly v Ballou, supra, p 326 (quoting from the dissent in Salmon v Bagley Laundry Co, supra): "`These human deviations * * * do not suspend the employer-employee relationship. They are not departures from employment, but the very substance of it.'"

[21] "We are not unmindful that no incident of plaintiff's employment required him in an absolute sense to leave the terminal during the five-hour interval. If he did choose to leave, he certainly was not required to travel by automobile." Howard v Detroit, supra, p 109.

[22] See cases cited at fn 10, supra.

[23] Furino and Lipinski, each requiring a showing of service to the employer as one possible ground for recovery, distinguished Haller, a case in which the employee was concededly ministering to his own needs and performing no service for his employer, on the ground that the injury occurred on premises. It is significant that Lipinski's closing paragraph began with the observation that "[a]n examination of the cases where the accident was upon the street and liability was sustained will disclose that in each case the employee was at the time of the accident in the discharge of his duties to the employer * * *". (Emphasis changed.) Lipinski v Sutton Sales Co, supra, p 652. See also Haggar v Tanis, 320 Mich. 295, 298; 30 NW2d 876 (1948):

"Each of the above cases is distinguishable from the instant case because decision therein hinged upon a finding of one or the other of the following attendant circumstances:

"(1) That, if the injury occurred on the street, the employee at the time of the injury was found to have been actually engaged in performing duties incident to his employment.

"(2) Or, that the injury occurred on the employer's premises over which he had control and while the employee was engaged in conduct which had the express or implied approval of the employer * * *." (Emphasis in original.)

On the other hand, the Mack majority saw Lipinski and Furino as part of the line of cases overruling Haller and commented, "An examination of the above decisions readily discloses the uniform rules which have been followed." Mack v Reo Motors, Inc, supra, p 289.

[24] MCL 418.301(2); MSA 17.237(301)(2).

[25] This is especially so in light of the amendment's history. The amendment was but a restatement of language appearing in Brink v J W Wells Lumber Co, 229 Mich. 35; 201 N.W. 222 (1924), language whose sole statutory base was the "out of and in the course of" provision. The amendment was passed after the Court had retreated from Brink and become increasingly restrictive in worker's compensation law. The Court in Dyer v Sears, Roebuck & Co, supra, p 95, saw the amendment not as creating new law, but as "a message of courtesy, arriving here from a coordinate branch of government, proposed in the way of intent toward restoration of that which we have errantly excised from the remedial legislation".

[26] See quotation in fn 13, supra.

[27] Dyer v Sears, Roebuck & Co, supra, pp 95-96.

[28] Lasiewicki v Tusco Products Co, 372 Mich. 125; 125 NW2d 479 (1963).

[29] "I hope that the observations in the foregoing pages may prompt the reader to agree that there are but a few periods during the daily work routine of the employee that can be regarded without any qualification whatsoever as being within the course of his employment. Similarly, there are precious few pieces of normally expectable employee behavior during the course of the average workday that can be regarded without question. It is the same when we examine the nature of typical work hazards. Of all the different risks of harm to which the worker is exposed during the course of his day, only a spare handful are risks that unquestionably arise out of his employment. The two terms are virtually meaningless as arbitrary propositions. In the last analysis, the process of determining work connection in a concrete controversy is one that involves the balancing of factors of time, place, and employee activity against each other and then against the trier's estimate of the closeness of the relationship of employment risk to the nature of the work." Malone, The Limits of Coverage in Workmen's Compensation: The Dual Requirement Reappraised, appearing in 1 Supplemental Studies for the National Commission on State Workmen's Compensation Laws (1973), pp 161, 169.

[30] See, e.g., Crilly v Ballou, supra; Salmon v Bagley Laundry Co, supra (SMITH, J. dissenting); Whetro v Awkerman, 383 Mich. 235; 174 NW2d 783 (1970) (injury caused by tornado, for which employer obviously was not at fault).

[31] Salmon v Bagley Laundry Co, supra, (SMITH, J. dissenting); Nemeth v Michigan Building Components, supra.

[32] See Burchett v Delton-Kellogg School, 378 Mich. 231, 236; 144 NW2d 337 (1966), holding it irrelevant whether plaintiff teacher's act of transporting books and papers home in her car (on which was based the finding that the trip had a dual purpose) in any way contributed to her risk of injury.

[33] Whetro v Awkerman, supra.

[34] Larson reports that of those states to have addressed the question, 24 have denied compensation for off-premise lunchtime injuries. 1 Larson, § 15.51, fn 70 and § 15.53. Only New Jersey has explicitly rejected the rule. See fn 15, supra.

[35] 1 Larson, § 15.12, pp 4-11, 4-12.

[36] 1 Larson, § 15.12, p 4-13.

[37] The premises line, however, is not without its problems: It is well established that an employer's premises are not necessarily co-extensive with the employer's property. Lasiewicki v Tusco Products Co, supra. In Olejarz v ITE Circuit Breaker Company, 1972 WCABO 633, a restaurant across the street from the work place was found to be part of the employer's premises. In Fischer v Lincoln Tool & Die Co, 37 Mich. App. 198; 194 NW2d 476 (1972), the street adjacent to the employer's property was held to be part of the premises because the employees were expected to park their cars there. And there are difficult determinations when deciding whether the injury is an "on-premises injury". See, e.g., Contreras v General Motors Corp, 1974 WCABO 2474 (during unpaid lunch, driver accelerated auto on premises so fast that it went out of control upon leaving premises; held: series of events leading to injury occurred on premises, therefore injury is compensable).

[38] See Larson's "parade of horribles", 1 Larson, § 15.12, pp 4-13, 4-14.

[39] MCL 500.3101 et seq.; MSA 24.13101 et seq.

[40] MCL 500.3109; MSA 24.13109:

"(1) Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury."

[41] See Mathis v Motor Freight System, ante, 408 Mich. 164; 289 NW2d 708 (1980).

[42] Cherewick v Laramie & Son, Inc, supra; Furino v Lansing, supra; Lipinski v Sutton Sales Co, supra.

The injuries in Hills v Blair, supra, although incurred during off-premises lunchtime travel, were not sustained in a motor vehicle accident.

[43] Lasiewicki v Tusco Products Co, supra.

[44] E.g., Burchett v Delton-Kellogg School, supra (applying the dual-purpose doctrine).

[45] Howard v Detroit, supra.

[46] An award of compensation in the instant cases need not, it is true, extend coverage to all motor vehicle accidental injuries sustained during the lunch period, regardless of the nature of the activity in which the employee was engaging. See fns 15 and 18, supra. Nonetheless, the rationale behind the proposed and perhaps any theoretically justifiable decisions in favor of the instant claimants is, logically, equally applicable to most lunchtime motor vehicle accident injuries, the number of which cannot be dismissed as insignificant.

[47] Exemplary are those alluded to in Hills v Blair, supra, and the exceptions recognized in Howard v Detroit, supra, (Larson sees Howard as an application of the "special errand rule", which he discusses in 1 Larson, § 16.10, pp 4-123 et seq.); Burchett v Delton-Kellogg School, supra, (the "dual-purpose" doctrine), and Levchuk v Krug Cement Products Co, 246 Mich. 589; 225 NW2d 559 (1929) (travel in employer-supplied vehicle). The standard exceptions are discussed in 1 Larson, §§ 15.00-18.44.

[1] Whether the employees were negligent in these cases is irrelevant to the issue of whether workers' compensation benefits are payable. In Whetro v Awkerman, 383 Mich. 235, 242-243; 174 NW2d 783 (1970), we stated:

"The purpose of the compensation act as set forth in its title is to promote the welfare of the people of Michigan relating to the liability of employers for injuries or death sustained by their employees. The legislative policy is to provide financial and medical benefits to the victims of work-connected injuries in an efficient, dignified, and certain form. The act allocates the burden of such payments to the most appropriate source of payment, the consumer of the product.

"Fault has nothing to do with whether or not compensation is payable. The economic impact on an injured workman and his family is the same whether the injury was caused by the employer's fault or otherwise.

"We hold that the law in Michigan today no longer requires the establishment of a proximately causal connection between the employment and the injury to entitle a claimant to compensation. The cases which have allowed recovery for street risks, increased risks, and on-the-premises accidents were made without consideration of the proximate causal connection between the nature of the employment and the injury. They have brought the law in Michigan to the point where it can be said today that if the employment is the occasion of the injury, even though not the proximate cause, compensation should be paid."

[2] By virtue of the so-called on-premises amendment, MCL 418.301(2); MSA 17.237(301)(2), an employee injured on the premises during lunchtime is "presumed to be in the course of his employment". See, also, Dyer v Sears, Roebuck & Co, 350 Mich. 92, 95; 85 NW2d 152 (1957).

[3] See, e.g., Wyatt, supra; Hornyak, supra; Dependents of Pacheo v Orchids of Hawaii, 54 Haw. 66, 69; 502 P2d 1399, 1401 (1972).

[1] It was precisely the erroneous importation of tort concepts such as "scope of employment" into the analysis of whether an injury was sustained in the course of employment, which led to denial of workers' compensation benefits in prior cases involving lunch break and coffee break injuries.

See, e.g., Hills v Blair, 182 Mich. 20, 29; 148 N.W. 243 (1914) (lunch hour injury did not occur in course of employment since employee was not "within the scope of his employment, [and] was not under the direction or control of his employer"); Daniel v Murray Corp of America, 326 Mich. 1; 39 NW2d 229 (1949) (employee injured in parking lot supplied by employer, after completion of work shift, was not in course of employment); Salmon v Bagley Laundry Co, 344 Mich. 471, 474; 74 NW2d 1 (1955) (coffee-break injury suffered on employer's premises was not in course of employment since the employee was not performing a duty she was hired to perform); Mack v Reo Motors, Inc, 345 Mich. 268, 290-291; 76 NW2d 35 (1956) (injury suffered on employer's premises during lunch hour while employee was en route to company cafeteria did not occur in the course of employment, since, under Salmon, employee was not within the scope of employment or under the control of employer at the time of injury).

The majority opinions of Salmon, Daniel and Mack were expressly overruled in Dyer v Sears, Roebuck & Co, 350 Mich. 92, 96; 85 NW2d 152 (1957).

[2] Writing for the majority in Dyer, Justice BLACK found the injury suffered to have occurred in the course of employment according to the prior case of Haller, supra. The fact that the majority opinion in Dyer rested upon principles set forth in Haller was reiterated by Justice BLACK in his opinion issued in Simerka v Pridemore, 380 Mich. 250, 266; 156 NW2d 509 (1968).

Justice DETHMERS, concurring with the majority in Dyer, considered that the injury suffered was compensable. However, Justice DETHMERS' conclusion was not premised upon a finding that the employee's injury occurred during the course of employment under prior case law. Rather, he concluded that the injury was compensable by reason of 1954 PA 175 which amended the Workers' Disability Compensation Act to provide as follows:

"Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment."

[3] The majority opinion in Salmon, supra, was expressly overruled in Dyer, supra, 96. Justice SMITH'S dissent in Salmon was adopted as authority by four of the justices concurring in Freiborg v Chrysler Corp, 350 Mich. 104, 112; 85 NW2d 145 (1957).

[4] In Salmon, the agreement between the employer and its employees provided that the employees could choose to remain upon the premises during the coffee break. The employees were also expressly permitted to obtain food and drink from the restaurant located across the street since no such facilities were located upon the employer's premises. This particular restaurant and the employer's premises were the only places where employees were allowed to go during the break.

[5] Gary McClure was allowed a 30-minute lunch period. Kimberly Krolczyk was given one hour as a lunch break.

[6] Gary McClure was struck by a car while attempting to cross a street which abutted his employer's premises. Kimberly Krolczyk was injured while driving her automobile. When the accident occurred, she had traveled a distance of approximately one-half to three-quarters of a mile from her office.

[7] McClure's employer acquiesced in the custom of certain employees eating lunch regularly at a tavern located across the street from the plant. Ms. Krolczyk's employer encouraged its employees to leave their desks during the lunch period. The WCAB opinion indicates it was customary for all but one of Ms. Krolczyk's co-workers to leave the premises to eat lunch.

[8] In each of the instant cases there was some dispute as to the adequacy of lunch facilities provided upon the employer's premises.

In the case of McClure, the WCAB found that there were 1800 to 2500 persons employed at the plant. The employees ate lunch in two 30-minute shifts which were staggered. The lunch facilities on the premises included lunch wagons which offered some hot sandwiches, a cafeteria, and vending machines. The cafeteria had a seating capacity of 500 persons.

In the case of Ms. Krolczyk, the WCAB found:

"The record reveals defendant asked their [sic] employees not to keep food in their desks because of the danger of pests and rodents. * * * There were no cooking facilities on the premises. There was a refrigerator for the employees use in the ladies lounge. A canteen truck came at nine o'clock in the morning with coffee, cakes, sandwiches and soups. Plaintiff testified that when she came to work for defendant, she was told by the secretary to the president that, if she ate her lunch at work, she should eat in the ladies lounge. In that room there was a couch, chairs and a table. This room was separated from the ladies toilet facilities by a wall, but there was a doorway with an arch, and no door, between the two rooms."