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STATE OF MICHIGAN
COURT OF APPEALS


KEVIN S. CONNER Plaintiff-Appellant, and AMERISURE INSURANCE COMPANY, Intervening Party, v MIKE PULLEY, VERN WALLICK CONSTRUCTION, and MERIDIAN MUTUAL INSURANCE COMPANY, Defendants-Appellees.

UNPUBLISHED January 21, 1997

No. 184952 WCAC NO. 92-000338

Before: Markey, P.J., and Michael J. Kelly, and Michael J. Talbot*, JJ. PER CURIAM. In this worker's compensation case, plaintiff argues that he was wrongfully denied benefits for a back injury that plaintiff claims arose out of and in the course of plaintiff's employment. We affirm the decision of the Worker's Compensation Appellate Commission, which affirmed the magistrate's decision. On October 21, 1989 plaintiff was employed as a painter by defendant Mike Pulley, d/b/a Mike's Painting. Plaintiff was employed to paint the interior of a personal residence under construction. Mike Pulley was a subcontractor on the project. The general contractor was defendant Vern Wallick Construction. In order to reach the construction project where plaintiff was working, the workers had to drive their vehicles over a muddy path across adjacent property. Wallick obtained permission from the owner of the adjacent property for workers to use the property to gain access to the construction site. * Circuit judge, sitting on the Court of Appeals by assignment. -1

Michael Landis was a masonry worker employed by another subcontractor on the project. On the morning of October 21, 1989, Landis approached the construction site in order to check on his work schedule. Landis did not claim to be coming to work and he was, in fact, not scheduled to work that day. As Landis approached the construction site, his vehicle became mired in the mud on the adjacent property, about "63 paces" from the property line of the property where plaintiff was working. Plaintiff and Landis knew each other. From his work site plaintiff observed Landis' predicament. Plaintiff left his work and unsuccessfully tried to help free Landis' truck. Plaintiff apparently injured his back while doing so. Landis eventually freed his vehicle with the help of a friend who used a truck with a winch. The magistrate found that plaintiff's actions did not benefit his employer1 and plaintiff's injury did not occur on the employer's premises. The finding that plaintiff's actions in attempting to help Landis provided no benefit to plaintiff's employer is amply supported by the record. MCL 418.861a(3); MSA 17.237(861a)(3). Wallick testified that the construction project gained nothing by plaintiff's efforts to free Landis' vehicle and that plaintiff was not performing his job when he tried to help Landis. Wallick further testified that if he or Mike Pulley had been present, plaintiff, who was paid by the hour, would not have been permitted to leave his job to help Landis. Plaintiff was denied benefits by the magistrate because the magistrate found that plaintiff's injuries did not arise out of and in the course of plaintiff's employment. The WCAC reached the same conclusion. Plaintiff contends that he was within the scope of his employment when he tried to help Landis and that his injury occurred on the work "premises." Plaintiff further contends that the magistrate and the WCAC mistakenly believed that plaintiff's actions had to provide a direct benefit to plaintiff's employer in order for plaintiff's actions to be within the course of his employment. Worker's compensation benefits are payable based upon an injury "arising out of and in the course of employment. . . ." MCL 418.301(1); MSA 17.237(301)(1). An employee is presumed to be in the course of his employment "while on the premises where the employee's work is to be performed." MCL 418.301(3); MSA 17.237(301)(3). The determination whether an employee's injury arose out of and in the course of employment may be a question of law, a question of fact, or a mixed question of law and fact. Koschay v Barnett Pontiac, Inc, 386 Mich 223, 225; 191 NW2d 334 (1971); Zarka v Burger King, 206 Mich App 409, 411; 522 NW2d 650 (1994). Where the facts are undisputed, as in the instant case, the determination is one of law for the courts to decide. Zarka, supra at 411. There are situations in which an employee's conduct does not directly benefit the employer but the conduct is nevertheless considered within the scope of the employee's employment. For example, "horseplay" situations can result in compensable injuries. See Crilly v Ballou, 353 Mich 303; 91 NW2d 493 (1958). But the facts of this case fall within the recognized proposition that an employee helping another with an entirely personal matter is acting outside the course of the employee's employment. This proposition is set forth in 1A Larson, Workmen's Compensation,

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