McCLURE v. GENERAL MOTORS

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 N.W.2d 829 (1978), viz.: whether in the circumstances extant in each case, auto accident injuries1 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 Act2 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 N.W.2d 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 NW 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 N.J. 167; 376 A.2d 1222 (1977), and Hornyak v The Great Atlantic & Pacific Tea Co, 63 N.J. 99; 305 A.2d 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 Larson5 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 P.2d 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 Detroit4 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 N.W.2d 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 injury32 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 act39 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 rule44 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 exception47 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 N.W.2d 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 N.W.2d 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 N.J. 167; 376 A.2d 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 N.J. 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 N.J. 99, 107-108; 305 A.2d 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 premises2 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 N.W.2d 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 NW 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 N.W.2d 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 N.W.2d 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.