DARRELL D LOWERY, Applicant
INTL CABLING SYSTEMS INC, Employer
ACE PROPERTY AND CASUALTY INSURANCE, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed.
Dated and mailed February 2, 2007
loweryd . wsd : 101 : 1 ND
§ 3.6 § 3.11
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The applicant and his supervisor, Carl Gano, were in an automobile accident at 7:45 a.m. on Sunday, July 11, 1999, while traveling east on I-94 near Black River Falls, Wisconsin. The applicant testified that he and Mr. Gano were traveling back to the employer's Madison warehouse from a worksite in Forest Lake, Minnesota, to obtain a fiber kit needed to complete the job in Forest Lake and restock their vehicle for another job assignment in Albert Lea, Minnesota. According to the applicant, the men had left Forest Lake on Saturday, and spent the evening in Eau Claire with their girlfriends, resuming the trip to Madison on Sunday morning. Mr. Gano died following the accident and the applicant was badly injured.
The employer's witness, Sean Kelley, testified that he had instructed Mr. Gano by telephone on Saturday, July 10, to wait in Forest Lake for another supervisor, Tim Dupuy, to bring a fiber kit (1) and an additional worker. Mr. Kelley testified that during this conversation, he informed Mr. Gano that there was no fiber kit in the Madison warehouse. Mr. Kelley testified also that Mr. Gano had suggested sending the fiber kit to Forest Lake by overnight delivery; Mr. Kelley's testimony does not indicate that he and Mr. Gano ever discussed the men returning to Madison for the fiber kit.
The ALJ found that the Saturday telephone conversation between Mr. Kelley and Mr. Gano occurred as Mr. Kelley testified. After considering the evidence presented at the hearing, which the ALJ discussed in detail in his decision, the ALJ concluded he could not determine what the applicant and Mr. Gano were doing at the time of the accident. Concluding the applicant failed in his burden of proof, the ALJ dismissed the application.
In order to hold an employer liable under the worker's compensation law, a worker must be injured while "performing services growing out of and incidental to his employment." Wisconsin Statutes § 102.03 (1)(c)1, Stats. In this case, because the applicant was on a business trip while he was injured, the "traveling employee" statute, Wis. Stat. § 102.03 (1)(f), must be considered. That section provides:
"102.03(1)(f) Every employee whose employment requires him to travel shall be deemed to be performing service growing out of and incidental to his employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of his employment."
This statute is further explained by the department in an annotative footnote in its biennial publication DWD Worker's Compensation Act of Wisconsin, with amendments to December 2004:
"Accident or disease must arise out of a hazard of employment, and accidents and disease not caused by reason of incidents of service are not to be compensated. Injuries, whether accidental or otherwise, must therefore arise out of the business circumstances of the trip and not merely occur because of a personal condition or disability bearing no relation whatsoever to service."
According to the supreme court, Wis. Stat. § 102.03(1)(f) establishes a presumption that an employee traveling on a business trip is performing services arising out of and incidental to his or her employment at all times until he or she returns, a presumption which continues until rebutted by evidence to the contrary. Wisconsin Elec. Power Co. v. LIRC, 226 Wis. 2d 778, 788-89 (1999); Hunter v. DILHR, 64 Wis. 2d 97, 102 (1974). Thus, an off-duty injury during a business trip ordinarily would be compensable unless the employer shows: (1) a deviation by the worker from his business trip and (2) such deviation was for a personal purpose not reasonably necessary for living or incidental thereto. Dibble v. DILHR, 40 Wis. 2d 341, 346 (1968); Wisconsin Elec. Power Co., at 226 Wis. 2d 789. Stated another way, "even when a traveling employee engages in a deviation for a personal or private purpose[], the agency or reviewing court must still consider whether the deviation is an act reasonably necessary for living or incidental thereto." CBS, Inc. v. LIRC, 219 Wis. 2d 564, 577 (1998).
An employee's actions are considered necessary for living or incidental thereto as long as they "can be considered usual and proper customary conduct while living away from home." Wisconsin Elec. Power Co., at 226 Wis. 2d 789. The court has also stated:
"Whether there is a deviation depends on whether there is established some '. . . meaningful manifestation to engage in activities purely personal to the employee . . .' The test is whose purpose was served."
Hunter, at 64 Wis. 2d 103. (2)
Even if a worker has deviated, however, coverage resumes when the deviation ends and the worker returns to his normal employment. Thus, the court stated in Lager v. ILHR Dept., 50 Wis. 2d 651, 661 (1971):
"It is clear, as a matter of law, that, in the event a salesman commences travel in the course of his employment and subsequently deviates from that employment but later resumes his route which he would have to follow in the pursuance of his employer's business, the deviation has ceased and he is performing services incidental to and growing out of his employment."
The court has also held that an employee who has deviated will be covered under the worker's compensation law once the employee resumes activities that are reasonably necessary to living. Heritage Mut. Ins. Co. v. Larsen, 2001 WI 30, ¶36, 242 Wis. 2d 47.
The parties do not dispute these general principles. The employer's position is that the applicant and Mr. Gano deviated from employment by going to Eau Claire to be with his girlfriend, then continued to proceed to Madison so the applicant could visit another woman, despite being instructed to stay in Forest Lake. On the other hand, the applicant contends that he was going to Madison to further the employer's interests -- that he in effect had resumed the course of employment -- by setting out to obtain the fiber kit and restocking the vehicle. In other words, regardless of what happened during the Saturday evening in Eau Claire -- and whether it could be characterized as a deviation or frolic -- the applicant contends he resumed the course of employment by going to Madison for business reasons.
In short, this case implicates the factual question of what the applicant and Mr. Gano were doing when they were traveling east on I-94 at 7:45 a.m., on Sunday, July 21, 1999. Ordinarily, of course, an injured worker bears the burden of proving all aspects of his claim beyond a legitimate doubt. Leist v. LIRC, 183 Wis. 2d 450, 457 (1994). In the case of a traveling employee and the presumption under Wis. Stat. § 102.03(1)(f), however, the burden of proving a personal deviation on the trip by the employee is upon the party asserting the deviation. CBS, Inc., at 219 Wis. 2d 579. (3)
But that does not mean that the employer must prove a deviation by a preponderance of the evidence. With respect to the statutory presumption that a traveling employee is presumed to be performing services during the entire course of the trip, the supreme court said in another case involving a fatal accident:
"It has been the consistent position of this court that the presumption in favor of travelling employees under sec. 102.03(1) (f), Stats., is rebuttable and drops out of consideration when evidence to the contrary is presented. Tyrrell v. Industrial Comm., 27 Wis.2d 219, 224, 133 N.W.2d 810 (1965); Armstrong v. Industrial Comm., 254 Wis. 174, 35 N.W.2d 212 (1948); Dibble v. ILHR Dept., 40 Wis.2d 341, 347, 161 N.W.2d 913 (1968)."
Goranson v. ILHR Department, 94 Wis. 2d 537, 550-551 (1980). (4) In Goranson, the court went on to reject the argument that in order to rebut the presumed fact of continuing employment, an employer must rebut the presumed fact of continued employment by a preponderance of the evidence. Thus, the commission is not required to balance the evidence to determine whether a party has proved that the nonexistence of the presumed fact is more probable than its existence. Ibid.
When there is sufficient evidence to rebut the presumption, the case is analyzed as if there is no presumption at all, so that the applicant would be required to prove beyond legitimate doubt that he or she was in the course of employment. On the other hand, the court has noted in a traveling employee case that where an inference may be drawn one way as easily as another, the scale should be turned in favor of the applicant as it is the intent and purpose of the act to bring border-line cases under it. Wisconsin Elec. Power Co, at 226 Wis. 2d 796.
In this case, the employer has offered enough evidence to rebut the traveling employee presumption by introducing the testimony from Mr. Kelley that he told the applicant and Mr. Gano to wait for Mr. DePuy. The most reasonable inference is that the applicant and Mr. Gano instead left Forest Lake and went to Eau Claire so the men could spend that Saturday evening with their girlfriends. This may have been an understandable decision by the two men, but the applicant's own version of events indicates that the men's activities in Eau Claire that Saturday evening were a deviation from their business trip for a personal purpose not reasonably necessary for living or incidental thereto.
There being sufficient evidence of a deviation for a personal purpose not reasonably necessary for living or incidental thereto to rebut the statutory traveling employee presumption, the ALJ appropriately concluded that the burden is on the applicant to prove either that he did not deviate, or -- in this case -- that he returned to the course of employment by resuming the trip to Madison. The commission, like the ALJ, concludes the applicant has not met his burden of proof in that regard.
First, the ALJ heard Mr. Kelley testify and credited his testimony that Mr. Kelley told Mr. Gano that the men were to remain in Forest Lake and that there was no fiber kit in Madison. On this point, the commission notes that the employer has gone bankrupt, that Mr. Kelley is working elsewhere, and that no reason for him to misrepresent his conversation with Mr. Gano (financial or ortherwise) has been shown.
The applicant has introduced testimony suggesting that Mr. Kelley may have been overworked, suggesting he would not accurately remember the conversation he had with Mr. Gano that Saturday. But, other than with respect to the date, Mr. Kelley's recollection of the conversation is detailed and seems reasonable. Mr. Kelley's testimony that Mr. Gano suggested sending the fiber kit by overnight courier or FedEx on Saturday is particularly noteworthy. Delivery by overnight courier seems the most reasonable alternative course, short of obtaining it from Mr. DePuy, and more reasonable than both men driving to Madison for the fiber kit on Sunday (assuming there in fact was a kit at the employer's Madison warehouse.)
The applicant's testimony about the other supervisor, Mr. DePuy, also raises some questions. The applicant acknowledges that he and Mr. Gano were supposed to pick up Mr. DePuy's extra worker to add to their team. January 11, 2006 transcript, page 61. However, the record does not establish when that was to occur, if not on Saturday as Mr. Kelley testified was the plan. It also seems reasonable that if the applicant and Mr. Gano were going to rendezvous with Mr. DePuy to pick up his extra crewman, they would have been able to obtain Mr. DePuy's fiber kit at that time.
The commission considered the possibility that Mr. Gano could not reach Mr. DePuy and left Forest Lake on his own initiative for that reason. However, the applicant testified the men left Forest Lake immediately upon finishing and went to Eau Claire where they spent the day and night before leaving for Madison. There is no evidence, from the applicant or otherwise, that Mr. Gano tried unsuccessfully to contact Mr. DePuy, either in Lake Forest or while Mr. Gano and the applicant were together in Eau Claire.
The ALJ also questioned the accuracy of the applicant's memory, given his brain injury from the accident itself. As the ALJ noted, the applicant told respondent's vocational expert, Donald M. Modder, in August 2005 that his last memory was being at Walmart before the accident. Mr. Modder's report states:
...Mr. Lowery indicates that they stopped at a friend's house in Eau Claire and headed back to Madison to obtain supplies around 7:00 a.m. When asked what his last actual recall was prior to the accident, Mr. Lowery indicates that he last recalled working at Wal-Mart in Minnesota. His next recall is waking up in the hospital...
Exhibit 3, report of Modder, page 2.
The commission emphasizes that there is substantially more to this case than the activities of the applicant and Mr. Gano that Saturday night in Eau Claire. As explained above, Mr. Kelley's testimony that he told Mr. Gano to meet with Tim DePuy to get the fiber kit because no kit was available in Madison is credible. There is also reason to question the applicant's memory of the events near in time to the accident. This is not a case where the scales are evenly balanced and an inference may be drawn either way as to why the men were returning to Madison. Given Mr. Kelley's testimony that he told Mr. Gano there was no fiber kit at the Madison warehouse, one must speculate to find a business reason for the trip. On this record, the commission cannot conclude applicant had resumed the course of employment at the time of his accident.
cc:
Attorney Thomas Horvath
Attorney Gary S. Stanislawski
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