            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS


    RAYMOND R. SMITH,                                               FOR PUBLICATION
                                                                    February 25, 2020
                Plaintiff-Appellant,                                9:00 a.m.

    and

    CITIZENS INSURANCE COMPANY OF
    AMERICA,

                Intervening Plaintiff,

    v                                                               No. 339705
                                                                    Michigan Compensation
                                                                    Appellate Commission
    CHRYSLER GROUP, LLC,                                            LC No. 14-000003

                Defendant-Appellee.


Before: FORT HOOD, P.J., and BECKERING and BOONSTRA, JJ.

BOONSTRA, J.

        Plaintiff appeals by leave granted1 the Michigan Compensation Appellate Commission’s
(MCAC) opinion denying plaintiff’s claim for wage benefits under the Workers’ Disability
Compensation Act (WDCA), MCL 418.101 et seq. The proceeding in the MCAC was an appeal
from an earlier decision of a magistrate of the Workers’ Compensation Board of Magistrates; the
MCAC reversed the magistrate’s holding that plaintiff’s injury had arisen out of or in the course
of his employment with defendant. We reverse and remand for further proceedings.




1
  This Court initially denied plaintiff’s application for leave to appeal. Smith v Chrysler Group,
LLC, unpublished order of the Court of Appeals, entered January 31, 2018 (Docket No. 339705).
Plaintiff appealed this Court’s denial of leave to our Supreme Court, which remanded to this Court
for consideration as on leave granted. Smith v Chrysler Group, LLC, 503 Mich 855 (2018).


                                               -1-
                     I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Plaintiff was employed as an auditor for defendant. He sustained injuries in a motor vehicle
accident while driving from his home in Clarkston to defendant’s Jefferson Avenue North
Assembly Plant (JANAP) in Detroit to conduct an audit, which was scheduled to begin at 7:30
a.m. After the accident, plaintiff filed an application for mediation with the Workers’
Compensation Agency, arguing that he had been injured on a business trip and was entitled to
worker’s compensation benefits. In response, defendant argued in relevant part that plaintiff had
merely been injured while traveling to work, which is not compensable under the Workers’
Disability Compensation Act (WDCA), MCL 418.101 et seq. Following a hearing, the magistrate
issued an opinion finding that plaintiff’s injuries arose out of and in the course of his employment
with defendant, noting the following undisputed facts:

          Plaintiff was driving his own personal vehicle but was paid mileage by the
          Defendant based upon the distance between the CTC[2] and JANAP. Plaintiff was
          transporting his company owned computer and cell[ular] [tele]phone as well as
          necessary papers which he had taken home the previous day so that he would not
          have to go to the CTC before travelling to JANAP. Plaintiff was paid a salary. In
          fact, as set forth above, the stipulated average weekly wage was $2,298.63. There
          was no testimony or evidence that Plaintiff’s salary was dependent in any way upon
          his commencing work at JANAP at 7:30 am [sic]. He was not an hourly paid
          employee whose compensation depended upon specific hours of employment with
          a specific starting and ending time.

       Defendant appealed the magistrate’s decision to the MCAC, arguing that the magistrate
erred by determining that plaintiff’s injuries arose out of and in the course of his employment. The
MCAC reversed the magistrate’s determination, finding that plaintiff did not establish three of the
four exceptions identified in Stark v L E Myers Co, 58 Mich App 439, 443; 228 NW2d 411 (1975).

          This appeal followed.

                                   II. STANDARD OF REVIEW

          As this Court stated in Moore v Prestige Painting, 277 Mich App 437, 447; 745 NW2d 816
(2007):

          The [MCAC] must review the magistrate’s decision under the “substantial
          evidence” standard, and we review the [MCAC’s] findings of fact under the “any
          evidence” standard. Our review begins with the [MCAC’s] decision, not the
          magistrate’s. “Findings of fact made or adopted by the [MCAC] are conclusive on
          appeal, absent fraud, if there is any competent evidence in the record to support
          them.” We review de novo “questions of law involved in any final order of the




2
    “CTC” refers to the Chrysler Technology Center in Auburn Hills.

                                                 -2-
       [MCAC].” “[A] decision of the [MCAC] is subject to reversal if it is based on
       erroneous legal reasoning or the wrong legal framework.” [citations omitted.]

When the facts are undisputed, the question of whether a plaintiff’s injury arose out of and in the
course of the plaintiff’s employment is a question of law. Zarka v Burger King, 206 Mich App
409, 411; 522 NW2d 650 (1994).

                                         III. ANALYSIS

        Plaintiff argues that the MCAC erred when it determined that plaintiff’s injury did not arise
out of or in the course of his employment. We agree.

        “Under the WDCA, employers provide compensation to employees for injuries suffered in
the course of employment, regardless of fault.” Herbolsheimer v SMS Holding Co, Inc, 239 Mich
App 236, 240; 608 NW2d 487 (2000). “An employee who receives a personal injury arising out
of and in the course of employment by an employer who is subject to the act at the time of the
injury, shall be paid compensation.” Thomason v Contour Fabricators, Inc, 255 Mich App 121,
123-124; 662 NW2d 51 (2003), mod on other grounds 469 Mich 960 (2003), citing
MCL 418.301(1). “An employee is entitled to compensation where the nexus between the
employment and the injury is sufficient to conclude that the injury was a circumstance of
employment.” Id. at 124.

       Generally, “an employee who suffers injury while going to or coming from work cannot
receive worker’s compensation benefits.” Ruthruff v Tower Holding Corp (On Reconsideration),
261 Mich App 613, 616; 684 NW2d 888 (2004). However, “exceptions to the general rule exist
where”

       (1) the employee is on a special mission for the employer, (2) the employer derives
       a special benefit from the employee’s activity at the time of the injury, (3) the
       employer paid for or furnished employee transportation as part of the employment
       contract, (4) the travel comprised a dual purpose combining employment-related
       business needs with the personal activity of the employee, (5) the employment
       subjected the employee to excessive exposure to traffic risks, or (6) the travel took
       place as a result of a split-shift working schedule or employment requiring a similar
       irregular nonfixed working schedule. [Bowman v RL Coolsaet Constr Co (On
       Remand), 275 Mich App 188, 191; 738 NW2d 260 (2007) (quotation marks and
       citations omitted).]

“Injuries that occur under the above circumstances are compensable because there is a sufficient
nexus between the employment and the injury such that the injury was a circumstance of the
employment.” Id.




                                                -3-
        Although the magistrate and the MCAC analyzed this case principally under Stark (which,
as noted, recognized four exceptions),3 the developed caselaw now recognizes six exceptions, as
set forth in Bowman, 275 Mich App at 191, and as initially summarized in Bush v Parmenter,
Forsythe, Rude & Dethmers, 413 Mich 444, 452 n 6; 320 NW2d 858 (1982). Compare Stark, 58
Mich App at 443, and Bowman, 275 Mich App at 191, citing Bush, 413 Mich at 452 n 6.
Resolution of plaintiff’s appeal therefore requires that we analyze whether any of the six Bowman
exceptions apply.

         Before doing so, we note, first, that both the magistrate and the MCAC appeared to consider
the exceptions to the general rule as elements of a balancing test. In doing so, they misconstrued
the law. We instead read Stark, as well as prior and subsequent caselaw, as establishing
“exceptions” to the general rule, and that each of those exceptions is independent of the others.
Indeed, the cases from which Stark derived the exceptions support this conclusion. For example,
in Chrysler v Blue Arrow Transport Lines, 295 Mich 606, 609-610; 295 NW 331 (1940), our
Supreme Court upheld an award in favor of the plaintiff, in part due to the defendant’s
“furnish[ing] week-end transportation between Grand Rapids and Chicago . . . .” And in Howard
v Detroit, 377 Mich 102, 110; 139 NW2d 677 (1966), the Court, in concluding that the plaintiff
was entitled to benefits, noted that the plaintiff was injured during working hours. In Nemeth v
Mich Bldg Components, 390 Mich 734, 737-738; 213 NW2d 144 (1973), our Supreme Court noted
that the plaintiff was engaged in activity that specially benefitted the defendant by “promot[ing]
and maintain[ing] good employer-employee relationships.” And in Chrysler, 295 Mich at 606,
and Dent v Ford Motor Co, 275 Mich 39, 42; 265 NW 518 (1936), the Court considered whether
the plaintiff was subjected to excessive traffic risks, rather than risks “incident to any user of the
street[,]” Dent, 275 Mich at 42.

        Subsequent caselaw has also addressed the exceptions as independent considerations,
rather than factors to be balanced. In Bush, for example, our Supreme Court noted that the general
rule was “riddled with exceptions, and described those exceptions as “including” the six situations
later described in Bowman. Bush, 413 Mich at 452 n 6. And in Bowman, the Court described the
issue before it as “the applicability of any exceptions . . . to the general rule.” Bowman, 275 Mich
App at 190 (emphasis added). After individually considering the exceptions, it then upheld the
commission’s finding that “none of the exceptions . . . applied.” Id. at 193 (emphasis added).
Bowman’s use of the terms “any” and “none” confirm that the applicability of any one of the
exceptions would have been sufficient (and therefore that the exceptions are independent
considerations, not factors to be balanced).




3
  In Stark, this Court enumerated four “exceptions” or “[c]onsiderations relevant to the ultimate
determination of whether an injury to an employee while on the way to work is sufficiently
employment-related to be compensable”: “1. Whether employer paid for or furnished employee
transportation[;] 2. Whether the injury occurred during or between working hours[;] 3. Whether
the employer derived a special benefit from the employee’s activities at the time of the injury[;]
4 Whether the employment subjected the employee to excessive exposure to traffic risks[.] Stark,
58 Mich App at 443. Id. (citations omitted).]


                                                 -4-
        The MCAC’s misapplication of the Stark factors as a balancing test may have been based
on this Court’s opinion in Forgach v George Koch & Sons Co, 167 Mich App 50; 421 NW2d 568
(1988),4 inasmuch as the MCAC cited to Forgach in stating that “[n]o prong of the exception test
is dispositive.” What the Court in Forgach in fact stated, however, was that “[u]nder [the Stark]
analysis, no one factor in and of itself necessarily determines that plaintiff establish all four factors
in plaintiff’s favor; it is only necessary that the [MCAC] or reviewing authority look to all four
factors before deciding whether the requisite was proven.” Id. at 58. The Forgach Court also
cited to Pappas v Sport Servs, Inc, 68 Mich App 423; 243 NW2d 10 (1976), as an illustrative of
how Stark’s “four-factor analysis” is to be applied. Forgach, 167 Mich App at 59. However, in
Pappas, this Court again analyzed whether the facts of the case fit into any of the four exceptions.
Pappas, 68 Mich App at 427-432. Finding that the facts did not fit within any of the four
exceptions, this Court affirmed the commission’s order denying workers’ compensation benefits.
Id. at 432. Nothing in Pappas supports a conclusion that the Stark factors operate as a balancing
test, and to the extent that Forgach can be read as having presumed the existence of or establishing
such a test, we clarify that no such test exists.

        As noted, cases subsequent to Forgach have also treated the relevant factors generally as
independent exceptions, each of which should be examined on its own merit. See, e.g., Bush,
supra; Bowman, supra; Camburn v Northwest Sch Dist, 459 Mich 471, 478; 592 NW2d 46 (1999);
Thomas v Staff Builders Health Care, 168 Mich App 127, 129; 424 NW2d 13 (1988); Collier v J
A Fredman, Inc (On Remand), 183 Mich App 156, 160; 454 NW2d 183 (1990). For this reason
alone, the MCAC (which found that one of the four Stark exceptions applied, but which
nevertheless reversed the magistrate’s decision because it concluded, in an apparent balancing test,
that the other three exceptions did not apply) erred.

        We next turn to a consideration of the Bowman factors in relation to this case. In doing so,
we conclude, with regard to the first Bowman exception, that plaintiff was on a special mission for
his employer at the time of the accident. Bowman, 275 Mich App at 191. In Camburn, 459 Mich
at 479, our Supreme Court determined that the plaintiff in that case was not on a special mission
by traveling to an education seminar because the “defendant was not directly benefited by [the]
plaintiff’s attendance at the seminar and that the attendance was neither compulsory nor definitely
expected.” The Court cited Bush in quoting a treatise discussing the special mission exception:

        When an employee, having identifiable time and space limits on his employment,
        makes an off-premises journey which would normally not be covered under the
        usual going and coming rule, the journey may be brought within the course of
        employment by the fact that the trouble and time of making the journey, or the
        special inconvenience, hazard, or urgency of making it in the particular
        circumstances, is itself sufficiently substantial to be viewed as an integral part of
        the service itself. [Camburn, 459 Mich at 479, citing Bush, 413 Mich at 452,
        quoting 1 Larson, Workmen's Compensation Law, § 16.10, p. 4–123.]




4
 Court of Appeals opinions issued before November 1, 1990 are not precedentially binding. See
MCR 7.215(J)(1).

                                                  -5-
Here, the record shows that plaintiff’s main base of operations was the CTC in Auburn Hills, which
was the location where his in-office work occurred and the location specified by his “employee
location code.” However, plaintiff testified that approximately 70% to 80% of his employment
consisted of traveling to various locations across the western hemisphere. In other words, it was
plaintiff’s job to travel to different locations to conduct audits—plaintiff did not merely work
different shifts at different locations. Accordingly, we agree with the magistrate that plaintiff was
on a special mission to the JANAP because defendant directed plaintiff to be away from his place
of employment at the CTC that day to perform his duties; the “particular circumstances” of his trip
to JANAP was “an integral part” of his employment. Camburn, 459 Mich at 479 (citations
omitted).

        Additionally, the third Bowman exception, which addresses whether the employer paid for
or furnished the employee’s transportation as part of the employment contract, was satisfied in this
case. Bowman, 275 Mich App at 191. As is undisputed, defendant paid for plaintiff’s travel
mileage when he travelled to perform his job duties at this and other locations. Accordingly, there
was “a sufficient nexus between the employment and the injury such that the injury was a
circumstance of the employment” rather than a mere commute to work. Id.5

        Because the first and third Bowman exceptions apply in this case (either of which would
be sufficient), we need not address the applicability of the other exceptions, and we conclude that
the MCAC erred when it determined that plaintiff was not entitled to compensation. Thomason,
255 Mich App at 124.

        We accordingly reverse the MCAC’s opinion denying plaintiff workers’ compensation
benefits because plaintiff’s injury did not arise out of and was not in the course of his employment,
and remand for further proceedings before the MCAC consistent with this opinion.

         Reversed and remanded. We do not retain jurisdiction.



                                                              /s/ /Mark T. Boonstra
                                                              /s/ Karen M. Fort Hood
                                                              /s/ Jane M. Beckering




5
    Even the MCAC found that this exception was satisfied.

                                                -6-
