DIANE L KING, Applicant

SCHOOL DISTRICT PALMYRA EAGLE, Employer

COMMUNITY INSURANCE CORP, 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 March 14, 2007
kingdi . wsd : 175 : 8   ND � 3.20

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant did not deviate from her employment, and her injury occurred while she was within the course of her employment. The evidence indicates the applicant was a middle school art teacher for the employer, a school district, at the time of her injury in April 30, 2004. The applicant testified the student council at the school requested that she act as a chaperone for a dance to be held at the school that day and the applicant agreed. The applicant completed her teaching duties on April 30, 2004, and then proceeded to the gymnasium where the dance was held, and she never left the employer's premises. The applicant did not receive any extra compensation for her chaperone duties. The evidence indicated that there were seven or eight chaperones at the dance, including a custodian as well as some parents and the school principal.

The applicant testified she was present as a disciplinarian and to enforce a no hands on the body rule while the students danced, and also to negotiate disputes between students, and perform general teacher duties. The applicant testified that after she did some dancing she took a break, and sat and was watching, when the disc jockey announced that there would be a limbo dance. The applicant believed that she was pretty good at the limbo and got up and decided to practice, and bent over while trying to do a back bend when she fell on the ground, and heard a snap and felt pain in her knee.

The issue in this case is whether the applicant's actions as a chaperone were within the course of her employment, and if so, whether her decision to take part in the limbo dance was a sufficient deviation to take the applicant outside of the course of her employment. The Wisconsin Supreme Court has expressly held that the Worker's Compensation Act must be liberally construed in favor of including all services that can be said to reasonably come within it. Wisconsin Electric Power Co. v. LIRC, 226 Wis. 2d 778, 796 (1999). Upon entering the employer's premises and beginning work, an employee is presumed to be continuing to work as long as he or she is on the employer's premises, absent evidence to the contrary. Tews v. Industrial Comm., 194 Wis. 489, 494 (1927).

The test to be applied in determining whether the applicant removed herself is one of deviation. In other words, has the applicant engaged in some activity of her own which has no relation to the employer's business? In  re the Estate of Fry v. LIRC, 2000 WI App 239 (Ct. App. 2000), the court noted an act for the benefit of the employee alone may constitute a noncompensable deviation, however, an act is not a deviation if in violation of the employer's directives it furthers the employer's interests, and not merely the employee's own personal ends.

In our current case, the administrative law judge appropriately noted the applicant's activities as a chaperone clearly benefited the employer. The applicant enforced discipline and school rules at the dance, and prevented harm to students which might otherwise occur without her presence. The fact the applicant was not paid for her voluntary service at the dance does not remove her from the course of her employment. In Wunsch v. City of Fond du Lac, WC Claim No. 93040966 (LIRC Dec. 21, 1994), the commission held that a worker hurt in a charity recreational function he attended for the public relations benefit of the employer was performing services growing out of and incidental to his employment. In such a case, the benefit to the employer brings the service within covered employment, even if the worker is performing the services off duty without the expectation of payment for the specific hours of service. Also in Missinne v. School District of Spooner, WC Claim No. 2002046212 (LIRC Sept. 30, 2005), the commission found that a music teacher who was injured while attending a state music convention and setting up a concert for the honors program was within the course of his employment when injured, and was not engaged in a deviation given the benefit to the employer from the injured worker's participation at the convention and the honors concert.

The employer argues in its petition for commission review the applicant's participation did not affect the applicant's performance evaluation. However, Ms. Schenning, the employer's business manager, admitted in her testimony that if the applicant had misbehaved as a chaperone she would have been subject to discipline by the employer. The employer also contends the applicant's participation as a chaperone did not directly benefit the employer, since the purpose of the dance was not to raise money for the school, but the money raised was given to charity. However, there was a direct benefit to the employer from the applicant's participation as a chaperone in maintaining order at the dance and encouraging good social behavior.

The applicant testified that mingling with the students as well as participating in the dance was part of her chaperone duties as she saw them. The administrative law judge appropriately noted that the nature of the applicant's chaperone duties could reasonably be expected to include some dancing, and that her dancing activities commingled with her chaperone duties, and she did not abandon her duties by dancing.

The employer states the factors considered in finding that the employee was in the course of her employment in the Wunsch case are not met by the applicant in our current case. However, in our current case the applicant's activities are much more directly related to her work activities than those in the Wunsch case, where the applicant participated in a donkey basketball game after hours as part of a fund-raising event for youth baseball. In our current case, it was conceded the dance could not occur without chaperones. The dance was a regularly scheduled activity on the school calendar, and sponsored by a school group, the student council. Given the nature of the applicant's chaperone duties, including some dancing, and given the benefit to the employer from the applicant's acting as a chaperone, the evidence established that the applicant was in the course of her employment at the time of the injury on April 30, 2004, and she was not engaged in a deviation which took her out of the course of employment while preparing to perform the limbo dance. Therefore, the administrative law judge appropriately found the applicant did not abandon her duty by dancing and was in the course of her employment at the time of her knee injury, and appropriately awarded the applicant temporary total disability benefits from January 4, 2005 to February 3, 2005, as well as 10 percent permanent partial disability at the left knee, and treatment expense as well as reasonable mileage expense.

cc:
Attorney Aaron Halstead
Attorney Daniel M. Pedriana

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