S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION V DOCKET # OPINION

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1 CLARENCE DeROVEN, PLAINTIFF, 1997 OPINION #261 S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION AETNA CASUALTY AND SURETY COMPANY, INTERVENING PLAINTIFF, V DOCKET # PARAMOUNT HEATING AND COOLING AND THE ACCIDENT FUND COMPANY, DEFENDANTS. APPEAL FROM MAGISTRATE HAITH. DARYL C. ROYAL FOR PLAINTIFF, T. A. GORNY FOR INTERVENING PLAINTIFF, JOHN J. HAYS FOR DEFENDANTS. SKOPPEK, COMMISSIONER OPINION Defendants appeal and plaintiff cross-appeals from the decision of Magistrate LaNita R. Haith, mailed September 6, 1995, granting plaintiff an open award on a finding that disabling injuries he incurred in an automobile accident were related to his employment 1. Defendants challenge the finding of work-relationship, while plaintiff argues for a higher benefit rate. We affirm the magistrate s decision, as modified by her order mailed October 12, Plaintiff founder and head of Paramount Heating and Cooling was hurt on August 24, 1991, when he crashed his car into the median retaining wall of Interstate 696 while returning from a job site (Mountain Jack s). The primary issue in this case concerns whether plaintiff s accident should be deemed work-related. The magistrate found that plaintiff was engaged in a dual purpose at the time of the accident, and that his injuries and consequent disability are therefore compensable under the Act. The magistrate concluded as follows: 1 Two subsequent orders were mailed on September 25, 1995 and October 12, 1995 dismissing Aetna Casualty and Surety Company and amending the benefit rate respectively.

2 Plaintiff asserts that he was in the scope of his employment when the automobile accident occurred. Whereas, defendant contends that plaintiff was on a personal errand returning home from work at the time of his alleged injuries. I agree with plaintiff and, therefore, I adopt herein plaintiff s trial brief. During the afternoon of August 24, 1991 (stipulated accident date), Mr. DeRoven realized that he did not have the programmable thermostat with him at the job site, as testified by Michael Ross. This type of thermostat was specifically requested by Mountain Jack s. As such, it was necessary for Mr. DeRoven to return to his office to pick up the thermostats. Mr. Ross testified that prior to Mr. DeRoven leaving the job site, Mr. Ross asked if Mr. DeRoven could take his daughter home after picking up the thermostats from his office. Mr. DeRoven complied, and thus his granddaughter accompanied him on the trip back to his office. Mr. DeRoven and his granddaughter left the job site approximately at 4:00 p.m. Per the testimony of Carolyn McAdam and the Accident Report, they were subsequently involved in a single motor vehicle accident prior to reaching Mr. DeRoven s office. Due to the automobile accident, Mr. DeRoven was never able to return to his office to retrieve the programmable thermostats. (See, trial testimony of Michael Ross). Mountain Jack s was credited for the amount of the programmable thermostat that was never installed by Paramount Heating & Cooling, according to the testimony of Lillian DeRoven. Further, Mrs. DeRoven s testimony establishes that Mr. DeRoven indicated to her in a telephone conversation that he was going to the office en route to home and dropping off his granddaughter. Thus, his state of mind demonstrated that he was not on a purely personal errand returning home from work, as advocated by defendant. Rather, the case at bar is more akin to the dual purpose rule enunciated in Benneteau v Detroit Free Press, 117 Mich App 253 (1982). Under the dual purpose rule, an employee is entitled to compensation benefits where there is a sufficient nexus between the employment and the injury so that it may be said the injury was a circumstance of the employment. I find that the totality of the circumstances supports the conclusion of a nexus here. See also, Thomas v Staff Builders, 168 Mich App 127 (1988). Defendants argue further that Mr. DeRoven was not acting in the course of his employment at the time of the accident; specifically, Mr. DeRoven s granddaughter was in his care at the time of the accident. This argument is without merit. Mr. DeRoven was working at the job site from approximately 9:00 a.m. until approximately 4:00 p.m. Michael Ross, Mr. DeRoven s ex-son-in-law, was also working at the Mountain Jack s job site on Saturday, August 24, 1991, as the superintendent of construction. Mr. Ross indicated that the job was near completion, 2

3 and Mr. DeRoven needed the thermostats for installation on Sunday or Monday. Consequently, the trip to the office was of benefit to the employer. On appeal, defendants mount an essentially factbased challenge to the magistrate s decision, arguing that the requisite evidence is not present to affirm the magistrate s finding of a connection between plaintiff s accident and his employment. Much of defendants argument is an effort to refute the somewhat bizarre, highly speculative and ultimately factually unsupported theory of plaintiff that his accident was somehow due to a syncopal attack attributable to his workplace experiences on the day of the accident. We do not need to address this issue, since the magistrate wisely did not find work-relationship on the basis of this theory. Defendants apparently focus on the refutation of plaintiff s theory out of concern for the magistrate s statement that she was adopting plaintiff s trial brief. We are not really sure what it means to adopt an advocacy document such as a trial brief. What we do know is that the magistrate found, as quoted above, that plaintiff is entitled to benefits because he was engaged in a dual purpose at the time of his accident. It is this portion of plaintiff s arguments from his trial brief that the magistrate found persuasive, as revealed in the above-quoted excerpt from her opinion. The only findings and holdings we can review are those actually stated by the magistrate in her opinion, and it is to those findings and holdings that we address ourselves. The magistrate found, and the record provides ample support, that it was plaintiff s intention, upon leaving the Mountain Jack s worksite, to return to his office to pick up the thermostat(s) needed at the worksite. The magistrate therefore provided fully proper legal reasoning in holding that plaintiff s trip had a compensable dual purpose, at least while plaintiff was returning to the office. Plaintiff aptly cites Burchett v Delton-Kellogg School, 378 Mich 231 (1966) -- The rule has been reduced to a simple formula: If a special trip would have had to be made if the employee had not combined this service with his going or coming trip, then the dual-purpose rule applies. Based upon the supported findings of the magistrate, plaintiff was not simply driving home or heading in the general direction of home in order to drive his granddaughter to her mother s residence. He was heading back to the office as a continuing part of his work day. Defendants wish to characterize this return to the office as incidental and unnecessary, but as long as plaintiff made the choice to return to his office for the work-related purpose he announced, how unnecessary such choice may be judged is really quite irrelevant. The trip to the office was work-related. What the magistrate fails to adequately explore in her opinion are important factual details relevant to the question of whether plaintiff was still on his dual purpose mission at the time of the accident. Defendants argue that, because the actual accident occurred beyond the freeway exit plaintiff would have needed to take in order to return to the office, it would appear that any dual purpose for the trip had evaporated and that plaintiff was simply engaged in the private purpose of transporting his granddaughter and heading toward home. If in fact plaintiff had changed his mind about going to the office, there would no longer have been a dual purpose for the trip. 3

4 Our review of the record indicates, however, that plaintiff was probably still within the ambit of his expressed purpose of returning to the office for the thermostat(s) when the events leading to the accident commenced. The timing of the event around 5:00 p.m. makes entire sense given the testimony of plaintiff s ex-son-in-law, Michael Ross, that plaintiff left the work site approximately between 4 and 4:30. It is unlikely that plaintiff had already been to the office by Plymouth Road. Lay witness Carolyn McAdam testified that she was going west on I-696 when she was passed by plaintiff prior to reaching the exit plaintiff would have needed to take to go south to the office. I noticed a man in the car that was swaying back and forth, forward, and then forward and back, and my first impression was this man was ill, something was wrong. My first impression was he was going to have a heart attack... Plaintiff s four-and-a-half year old granddaughter Ashley told her father that plaintiff fell asleep. Although the police report indicates that the accident finally occurred after going past the Southfield exit plaintiff would have needed to take in order to head toward the office, whatever it was that led to the accident began to occur at an earlier point in the trip. At such point, based upon the factual scenario concerning the goals and purpose of plaintiff s travels accepted by the magistrate, plaintiff was still engaged in work-related travel. There is competent, material and substantial evidence on the whole record to support the findings of the magistrate necessary to deem plaintiff s accident work-related. MCL (3). Plaintiff s entitlement to benefits must therefore be affirmed. As to the issue of the appropriate benefit rate, plaintiff argues on cross-appeal that the magistrate incorrectly calculated the coordination of plaintiff s maximum rate with his old-age social security income. We agree with defendants that this issue is rendered moot by virtue of the stipulated-to October 12, 1995 mailed order of the magistrate providing for the reduction of plaintiff s benefits under the age-65 reduction provisions of the Act, MCL , as opposed to the coordination of benefits provisions of the Act, MCL Commissioners Witte and Kent concur. Jürgen Skoppek Joy L. Witte James J. Kent Commissioners 4

5 CLARENCE DeROVEN, PLAINTIFF, S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION AETNA CASUALTY AND SURETY COMPANY, INTERVENING PLAINTIFF, V DOCKET # PARAMOUNT HEATING AND COOLING AND THE ACCIDENT FUND COMPANY, DEFENDANTS. This cause came before the Appellate Commission on appeal by defendants and cross appeal by plaintiff from the decision of Magistrate LaNita R. Haith, mailed September 6, 1995, with amended order mailed October 12, 1995, granting benefits. The Commission, having reviewed the record and the briefs of counsel, believes that the magistrate s decision as amended should be affirmed. Therefore, is affirmed. IT IS ORDERED that the magistrate s decision Jürgen Skoppek Joy L. Witte James J. Kent Commissioners