Hoste v. Shanty Creek Management, Inc , 459 Mich. 561 ( 1999 )

Taylor, J.

Plaintiff, a member of the National Ski Patrol System, Inc. (NSPS),¹ suffered an injury while “forerunning” a course at Shanty Creek Management, Inc.’s Schuss Mountain ski resort in advance of a race. We granted leave to appeal to decide whether plaintiff was an “employee” as defined under the Worker’s Disability Compensation Act of defendant Shanty Creek at the time of the injury. We hold that plaintiff was not an employee of Shanty Creek under the wdca and therefore not entitled to worker’s compensation benefits. We accordingly reverse the judgment of the Court of Appeals.

FACTS AND PROCEEDINGS

At the time of plaintiff’s injury in January 1990, he was employed as a full-time journeyman electrician by Hoste Brothers, Inc. On weekends in the winter months, plaintiff, by virtue of his having been qualified for and thus securing membership in the NSPS, served as a ski patroller at the Schuss Mountain resort of Shanty Creek.

To join the local ski patrol at Shanty Creek, plaintiff was interviewed by the local ski patrol director. After he was selected, he was then scheduled by the local director for ski patrol duty at Shanty Creek.

On its application forms, the NSPS recognizes two categories of patrollers, “professional” and “volunteer.” At the time of plaintiffs injury, Shanty Creek employed a “professional” NSPS patroller during the week at Schuss Mountain, while “volunteer” NSPS members provided patrolling services on weekends. Although none of the members of the weekend patrol received wages, each was accorded other benefits in exchange for services. The benefits included not having to pay for lift tickets, skiing privileges for family members, free hot beverages, and reduced prices on certain meals and merchandise.

In order to remain in good standing as a weekend patroller at Schuss Mountain, NSPS members were required to be at the resort at least half the days it was open for weekend skiing. Plaintiff testified that he usually reported for duty eveiy weekend during the ski season.

The last weekend in January 1990 was no exception. In addition to the usual skiing activity, however, there was to be a race. According to plaintiff, he was asked by a resort employee to help check out the course in advance of the race. The purpose of such a “forerun” is to ensure the safety of the course and to set a track for the racers to follow. Plaintiffs injury occurred when he misjudged a gate at the bottom of a hill. It is undisputed that he is totally and permanently disabled.

Defendant Shanty Creek and its insurance carrier voluntarily paid worker’s compensation benefits in connection with the injury until April 1990. At that time, they filed a notice of intent to stop payments on the basis that the plaintiff was not an employee of Shanty Creek.

Plaintiff subsequently filed an application for hearing or mediation. Hearings were held over the course of six days, and the magistrate considered deposition testimony as well. The magistrate found that plaintiff performed his patrolling duties under a “contract of hire” with Shanty Creek, and therefore he was an employee of Shanty Creek as defined under subsection 161(l)(b) of the WDCA.² The magistrate thus held that plaintiff was entitled to worker’s compensation benefits and medical expenses from defendant Shanty Creek and its insurer, and that defendant Second Injury Fund was responsible for 91.6 percent of the weekly benefits of $427 under the “dual employment” provision of the WDCA.³ The fund also was held liable for differential benefits.⁴

Both Shanty Creek and the Second Injury Fund appealed to the wcac. The wcac reversed the finding of the magistrate that plaintiff was an employee of Shanty Creek, and accordingly held that he was not entitled to benefits under the wdca. 1995 Mich ACO 612, 621. The WCAC reasoned that the magistrate erred in ending his analysis upon finding an implied contract of hire under subsection 161(l)(b), and instead, “a full application of § 161(1) to the particular facts” was required. Id. at 615. According to the wcac, “§ 161(1) requires that an individual’s situation must be examined in respect to both the entity they are associated with and the particular characteristics of that association.” Id. The WCAC reasoned therefore that the magistrate “erred as a matter of law by merely finding an association (‘implied contract of hire’) with a private employer under § 161(l)(b) without examining the character of plaintiff’s association with [Shanty Creek] under § 161(l)(d).” Id. at 615-616. Subsection 161(l)(d)⁵ defined an employee as “[e]very person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury,” subject to the following exclusions:

[Provided the person in relation to this service [1] does not maintain a separate business, [2] does not hold himself or herself out to and render service to the public, and [3] is not an employer subject to this act.

With regard to subsection 161(l)(d), the wcac said that the eight-factor “economic reality” test described in McKissic v Bodine, 42 Mich App 203; 201 NW2d 333 (1972),⁶ on which the subsection was based, should be used as a “tool for understanding and applying the statute . . . 1995 Mich ACO 616. After looking at each of the factors, the wcac held that plaintiff was not an employee, but rather “a volunteer engaged in an accommodation relationship with defendant ski resort. He was in essence a desirable patron providing desirable services in exchange for modest benefits. He was not ‘hired’ to perform these services, as required under [the wdca].” Id. at 620.

Plaintiff appealed in the Court of Appeals, which granted his application for leave and reversed the wcac. The Court of Appeals did not discuss subsection 161(l)(b), other than to note that it was the basis of the magistrate’s decision. Instead, the panel focused on subsection 161(l)(d) and the economic reality test, concluding that the WCAC had erred as a matter of law in its application of the eight McKissic factors. The Court of Appeals therefore remanded the matter to the wcac to reinstate the benefits awarded by the magistrate and to address the remaining issues that were not decided by the WCAC in its initial opinion. 221 Mich App 144; 561 NW2d 106 (1997).

This Court denied defendants’ applications for leave to appeal. 456 Mich 949 (1998). We subsequently granted reconsideration and vacated our earlier order, granting leave to appeal limited to the issue:

[W]hether plaintiff, a member of the National SM Patrol, is an employee of defendant Shanty Creek Management, Inc., within the meaning of the Worker’s Disability Compensation Act. [458 Mich 865 (1998).]

STANDARD OF REVIEW

This Court has the power to review questions of law involved in any final order of the wcac. MCL 418.861; MSA 17.237(861); Goff v Bil-Mar Foods, Inc (After Remand), 454 Mich 507, 512; 563 NW2d 214 (1997) . The interpretation of statutes is a question of law. People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998) . This Court reviews questions of law de novo, Hagerman v Gencorp Automotive, 457 Mich 720, 727; 579 NW2d 347 (1998), according great weight to the administrative interpretation of the statute unless such interpretation is clearly wrong. Murphy v Michigan, 418 Mich 341, 348-349; 343 NW2d 177 (1984); Schuhknecht v State Plumbing Bd, 277 Mich 183, 186-187; 269 NW 136 (1936).⁷

DISCUSSION

A

Michigan’s Worker’s Disability Compensation Act requires that employers provide compensation to employees for injuries suffered in the course of the employee’s employment, regardless of who is at fault. MCL 418.301; MSA 17.237(301). In return for this almost automatic liability, employees are limited in the amount of compensation they may collect, and, except in limited circumstances, may not bring a tort action against the employer. See MCL 418.131; MSA 17.237(131); Welch, Worker’s Compensation in Michigan: Law & Practice (3d ed), § 1.2, pp 1-2 to 1-3. The statute also defines who is an “employee” in § 161, and by doing so determines which individuals have essentially traded the right to bring a tort action for the right to benefits.

This case requires us to determine if plaintiff is such an “employee” under any of the definitions of “employee” contained in § 161 of the wdca. Here, the parties agree that two of these definitions, subsections 161(l)(a) and (c), which relate to public employees and individuals involved in certain government training programs, do not apply. Accordingly, our analysis focuses on subsection 161(l)(b) and on subsection 161(l)(d).

The first issue we must address in our analysis is how to read the statute. Either subsection 161(l)(b) and subsection 161(l)(d) are separate and necessary hurdles each individual must clear in order to be considered an employee, or they are independent and unconnected, so that qualification under either one is sufficient to establish employee status. The wcac held, we believe correctly, that the subsections were separate and necessary hurdles, and therefore a proper reading of “§ 161(1) requires that an individual’s situation must be examined in respect to both the entity they are associated with [subsection 161(l)(b)] and the particular characteristics of that association [subsection 161(l)(d)].” Id. at 615. The Court of Appeals, by implication, held similarly when it did not dispute the legal framework used by the wcac, but instead found error in the commission’s application of the economic realities test. Hoste, supra at 149.

Early versions of the WDCA described an employee, with the exception of certain definitions applicable only to government workers, simply as a person under a “contract of hire.” 1969 PA 317, MCL 418.161(1); MSA 17.237(161)(1). Because “employee” was not further defined, courts asked to distinguish between employees and independent contractors historically focused on whether there was an employee-employer relationship, using the common-law-derived economic realities test. On this basis, decisions were made regarding whether an individual was an employee covered under the act, or an independent contractor not covered under the act. Tata v Mus-kovitz, 354 Mich 695; 94 NW2d 71 (1959); see also McKissic v Bodine, supra.

This common-law-based approach was appropriate until the Legislature, as it of course has the authority to do, chose to speak about who was an independent contractor by amending § 161, in 1985, through the addition of subsection d, to define more completely the term “employee.” Welch, supra at § 3.4, p 3-4. The new language, in superseding the old economic realities test,⁸ incorporated some, but not all the factors of the old test.⁹ Accordingly, while the common-law economic realities test cannot be used to supersede the statute, i.e., by adding factors not in the legislative formulation of the economic realities test, those factors in the legislative test can be construed by reference to the case law development of those same factors.

Subsections 161(l)(b) and 161(l)(d) apply to private employers and must be read together as separate and necessary qualifications in establishing employee status. This is clear from the fact that both provisions begin by stating that they encompass “[e]very person in the service of another” (subsection 161[l][b]) and “[e]very person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury” (subsection 161[l][d]). By the use of the phrase “[e]very person” rendering service, it is plain that every individual claiming employee status under subsection b must also be examined under subsection d. Said another way, once an association with a private employer is found under subsection 161(l)(b), the characteristics of that association must meet the criteria found in subsection 161(l)(d).

The first test then is whether plaintiff was an employee under subsection 161(l)(b). If he is, then he must also pass muster under subsection 161(l)(d).

B

Subsection 161(l)(b) involves an inquiry regarding whether plaintiff was an employee under a “contract of hire.” There is minimal Michigan authority on what is a contract of hire, as distinguished from a relationship that is contractual but not “of hire.” In the lead plurality opinion in Higgins v Monroe Evening News, 404 Mich 1, 21; 272 NW2d 537 (1978),¹⁰ Justice Moody discussed an implied contract of hire, and the magistrate in this case utilized the reasoning of Justice Moody in concluding that a contract of hire merely requires, first, an intent by two parties to suffer a detriment to receive a benefit, and, second, an agreement to exchange those detriments and benefits. Although the magistrate adequately discussed the term “contract,” this was an incomplete analysis for purposes of the wdca, because it in fact ignored the import of the words “of hire.” The WCAC and the Court of Appeals likewise failed to consider the import of this phrase. This was then an error of law because the language of the statute simply was not followed. This is a consequential omission because “every word of a statute should be given meaning, and no word should be treated as surplusage or rendered nugatory if at all possible.” State Bd of Ed v Houghton Lake Community Schools, 430 Mich 658, 671; 425 NW2d 80 (1988). Further, it is important, for practical reasons that most would acknowledge, to give full play to the limiting words “of hire” because not to do so would make virtually everyone, no matter how minimal the exchange of benefits and detriments, eligible to receive worker’s compensation. There is no reason to assume that such a revolutionary reading of the statute was intended by the Legislature, and in fact this is undoubtedly why the Legislature limited eligibility by using the words “of hire.”

Consequently, it is essential to turn our attention to the phrase “of hire” and its meaning under the WDCA. Fundamental principles of worker’s compensation indicate that the words connote payment of some kind. See 3 Larson, Workmen’s Compensation Law, § 47.41, pp 8-346 to 8-353. “The entire philosophy [of worker’s compensation] assumes that the worker is in a gainful occupation at the time of injury,” Betts v Ann Arbor Public Schools, 403 Mich 507, 518; 271 NW2d 498 (1978) (Ryan, J., dissenting, citing IB Larson, Workmen’s Compensation Law, § 47.10) (emphasis added). The Legislature accordingly designed worker’s compensation to be a safety net to provide “income maintenance for persons who have met misfortune or whose regular income source has been cut off.” Franks v White Pine Copper Div, 422 Mich 636, 654; 375 NW2d 715 (1985) (emphasis added).

These basic precepts of worker’s compensation show that in order to receive benefits under the wdca, it is not enough for an individual to be employed pursuant to a “contract”; rather, the individual must be employed pursuant to a contract “of hire,” where the benefit received by the individual is payment intended as wages. In other words, worker’s compensation provides benefits to those who have lost a source of income; it does not provide benefits to those who can no longer take advantage of a gratuity or privilege that serves merely as an accommodation.

The distinction between a gratuity or accommodation and a payment that satisfies the “of hire” requirement of the wdca becomes apparent when one considers the manner in which the worker’s compensation system operates. As already explained, the wdca requires employers to compensate employees for injuries that occurred while on the job; in return for this almost automatic liability, employees are limited in the amount of compensation they may collect and, except in limited circumstances, may not bring a tort action against the employer. See MCL 418.131; MSA 17.237(131); Welch, supra at § 1.2, pp 1-2 to 1-3.

The repercussions of classifying an individual as an employee for purposes of the WDCA make clear the type of the compensation needed to satisfy the “of hire” requirement. Once an individual is classified as an employee under the WDCA, the individual receives only limited benefits and forfeits the right to exercise valuable tort rights. Accordingly, to satisfy the “of hire” requirement, compensation must be payment intended as wages, i.e., real, palpable and substantial consideration as would be expected to induce a reasonable person to give up the valuable right of a possible claim against the employer in a tort action and as would be expected to be understood as such by the employer.¹¹

Keeping in mind these principles, we do not believe that the contract in this case was one “of hire.” The privileges plaintiff received for patrolling were not a payment intended as wages because they were not substantial enough to induce a reasonable person to forfeit his common-law rights against Shanty Creek.

The privileges of free skiing, complimentary hot beverages, and meal discounts given to plaintiff on the days he patrolled were an “accommodation” to plaintiff in his patrol services. To give plaintiff free transport to the top of the slopes so as to allow him to begin his patrolling is not to benefit him, but rather is to do the minimum that must be done if Shanty Creek’s patrons are to receive the benefit of his safety services. In addition, offering free hot beverages and meal discounts to plaintiff after he had been outside patrolling merely shows that the resort accommodated the needs of cold patrollers, whom the resort wanted warmed and back on the hills as soon as possible. As to the family skiing privileges and discount at the resort’s stores plaintiff received, these were a “gratuity” — of nominal cost to the resort and nominal value to plaintiff, and in no sense represented a “regular income source,” see Franks, supra at 654, to plaintiff that would be replaced by worker’s compensation benefits. We note that not only were plaintiff’s proofs in this case deficient, so that the magistrate was unable to determine a value for the discount, but that plaintiff never claimed any of the benefits as wages for the purposes of federal income taxes. These facts demonstrate that the benefits did not represent payments intended as wages, i.e., the type of real, palpable, and substantial consideration that a reasonable person would accept in exchange for forgoing the right to bring a tort action against an employer and that would be understood as such by the employer.

Quite simply, plaintiff was a “gratuitous worker,” who was not an “employee,” but rather an individual assisting another with a view toward furthering his own interests. See 3 Larson, supra at § 47.41(c), pp 8-364 to 8-367.

We are reinforced in our analysis by the fact that § 161 indicates that the Legislature contemplated classes of individuals in a position similar to plaintiffs, and made decisions regarding whether to include them within the definition of “employee” for purposes of the wdca. Subsection 161(l)(a), while covering public employees, specifically states that the following volunteers will be considered “employees”: volunteer firefighters, volunteer safety patrol officers, volunteer civil defense workers, and volunteer ambulance drivers. MCL 418.161(l)(a); MSA 17.237(161)(l)(a). This is the only reference to volunteers in the version of the wdca in effect at the time of plaintiffs injury and § 161(l)’s inclusion of several classes of volunteers as employees implies the exclusion of others similarly situated such as plaintiff.¹²

For all these reasons, we find that the “of hire” element required under the wdca did not exist here. Accordingly, no “contract of hire” existed between plaintiff and Shanty Creek, and plaintiff is therefore not an employee of Shanty Creek under subsection 161(l)(b) of the wdca. That being the case, there is no reason for us to examine subsection 161(l)(d).

CONCLUSION

The Legislature, in § 161(1) of the WDCA, has clearly defined which individuals are “employees” subject to the act. We hold that plaintiff, a member of the nsps, is not an employee of Shanty Creek under the WDCA and thus is not entitled to benefits thereunder. Accordingly, we reverse the judgment of the Court of Appeals and affirm the wcac’s denial of benefits.

Weaver, C.J., and Brickley, Corrigan, and Young, JJ., concurred with Taylor, J.

1 The nsps is a federally chartered corporation, 36 USC 1501, organized under the laws of New York and Colorado.

2 At the time of plaintiffs injury, §161 provided in pertinent part:

(1) As used in this act, “employee” means:

(a) A person in the service of the state, a county, city, township, village, or school district, under any appointment, or contract of hire, express or implied, oral or written. . . .

(b) Every person in the service of another, under any contract of hire, express or implied, including aliens ....

(c) Every person engaged in a federally funded training program or work experience program which mandates the provision of appropriate worker’s compensation for participants ....

(d) Every person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury, provided the person in relation to this service does not maintain a separate business, does not hold himself or herself out to and render service to the public, and is not an employer subject to this act. [MCL 418.161; MSA 17.237(161).]

3 MCL 418.372; MSA 17.237(372) applies when the injury suffered by a claimant precludes the claimant from working not only in the job in which the injury occurred, but also in another job.

4 The “differential benefits” provision of MCL 418.521(2); MSA 17.237(521)(2) applies in the case of a claimant who is totally and permanently disabled.

5 This provision now appears in MCL 418.161(l)(n); MSA 17.237(161)(l)(n).

6 The factors of the “economic reality” test as described in McKissic are:

First, what liability, if any, does the employer incur in the event of the termination of the relationship at will?

Second, is the work being performed an integral part of the employer’s business which contributes to the accomplishment of a common objective?

Third, is the position or job of such a nature that the employee primarily depends upon the emolument for payment of his living expense?

Fourth, does the employee furnish his own equipment and materials?

Fifth, does the individual seeking employment hold himself out to the public as one ready and able to perform tasks of a given nature?

Sixth, is the work or the undertaking in question customarily performed by an individual as an independent contractor?

Seventh, control, although abandoned as an exclusive criterion upon which the relationship can be determined, is a factor to be considered along with payment of wages, maintenance of discipline and the right to engage or discharge employees.

Eighth, weight should be given to those factors which will most favorably effectuate the objectives of the statute. [Id. at 208-209.]

7 We agree with the dissent that whether a contract of hire exists is generally a question of fact. However, “ ‘[ejrror may be committed by basing a finding of fact on a misconception of law and by failing to correctly apply the law to the finding of fact.’ ” Price v Westland, 451 Mich 329, 336-337; 547 NW2d 24 (1996). In addition, error may be committed when an erroneous legal standard or framework is employed or a decision is based on erroneous legal reasoning. Hagerman, supra. In such cases, de novo review is appropriate. Id. at 727, n 4; see also Farrington v Total Petroleum, Inc, 442 Mich 201, 214-225; 501 NW2d 76 (1993). As will become apparent below, in determining whether a contract of hire existed in this case, the magistrate, the wcac, and the Court of Appeals all failed to consider the import of the statutory phrase “of hire” and thus operated within the wrong legal framework. For these reasons then, we believe the dissent mischaracterizes the issue as simply one of fact.

8 The conclusion that the subsection supersedes the common law is based on the doctrine of expressio unius est exclusio alterius (“express mention in a statute of one thing implies the exclusion of other similar things.” Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 [1971]). In this case, the express mention of some of the factors of the economic realities test in subsection 161(l)(d) implies the exclusion of the factors not mentioned.

9 For example, both the economic realities test and the statute include the requirement that the worker “hold himself or herself out to . . . the public.” MCL 418.161(l)(d); MSA 17.237(161)(l)(d); McKissic, supra at 208. On the other hand, while the first factor of the economic realities test is “[W]hat liability, if any, does the employer incur in the event of the termination of the relationship at will?” McKissic, supra at 208, no similar factor appears in subsection 161(l)(d).

10 Higgins was a plurality decision in which this Court affirmed the holding of the Court of Appeals that a child who was assisting a substitute newspaper carrier when struck by a car was not an employee of the newspaper. Writing separately to affirm, Justice Ryan concurred with the three signers of the lead opinion that there was insufficient evidence to sustain the legal conclusion that the boy was in the service of the newspaper under either an express or an implied contract of hire.

11 The dissent states that the test we enunciate today is too ambiguous to be useful. However, in so stating, the dissent ignores the overarching principle that the “of hire” element requires that the payment of compensation have been intended as wages.

Moreover, in discussing what should be the appropriate analysis, the dissent indicates that persons who “donate services” in exchange for an “incidental” type of “tangible benefit” need not be considered employees, while persons who “agree to provide services in exchange for meaningful compensation” can be considered employees. Post at 584-585. Unfortunately, however, the dissent articulates no practical standard by which to distinguish when a person donates services (no eligibility for worker’s compensation) as opposed to when a person agrees to provide services (eligible for worker’s compensation). likewise, the dissent articulates no practical standard by which to distinguish what constitutes mere incidental tangible benefits (no eligibility for worker’s compensation) as opposed to meaningful compensation (eligible for worker’s compensation). Given this situation, it seems ironic that the dissent would suggest that the easily comprehended standard we have developed, with its focus on wages, is unworkable.

Finally, the dissent implies that future courts will be unable to decide whether the privileges a worker receives are substantial enough to induce a reasonable person to forfeit his common-law tort rights against his employer. As an example of the potential problems the dissent foresees the courts will have to face, the dissent wonders whether working for the legal minimum wage is substantial enough consideration to induce a reasonable person to give up the right to a possible tort claim. We respond by simply noting that in most cases there is no question that the "of hire” element of subsection 161(l)(b) is satisfied because there is no question that the payments are intended as a wage. The dissent apparently forgets the factual situation that has made relevant the “of hire” element in this case and thus precipitated our decision, i.e., a person seeking benefits who did not receive a regular income source from the purported employer, but rather simply received a gratuity that merely served as an accommodation.

12 For a discussion of the expressio unius est exclusio alterius principle upon which this analysis is based, see footnote 8.