JACQUELINE  A  ALLIKAS, Applicant

WEST BELTLINE SUBWAY INC, Employer

AMERICAN FAMILY MUTUAL INS CO, 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 July 9, 2007
allikja . wsd : 175 : 9   ND § 3.16  § 3.17

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant suffered a traumatic left elbow injury on February 9, 2004 while performing services growing out of and incidental to her employment, and arising out of her employment leading to the need for treatment and temporary total disability, as well as 20 percent permanent partial disability at the left elbow. The employer asserts that the applicant's injury did not occur on the premises of the employer. The employer cites the case of Hunzinger Construction Co. v. Industrial Comm. of Wis., 242 Wis. 174 (1943), and Frisbie v. Dept. of Industry, Labor & Human Relations, 45 Wis. 2d at 80 (1969), to support its proposition that the applicant was not injured on the premises of the employer. However, neither the Frisbie or Hunzinger cases involved an employee injured on premises adjacent to the employer's leased premises.

The evidence indicates the applicant was injured while attempting to enter the building in which the employer leased space for its sandwich shop when she slipped, fell, and injured her elbow. The evidence indicates that the employer's shop was located in a convenience store type setting which also included a gas station, convenience store, as well as the employer's location. The employer's owner, Mr. Imhoff, testified there was also room available for other food vendors at that location with counter space which was not currently leased. Mr. Imhoff testified that he did not have any maintenance or control over the outside sidewalk at the entrance to the convenience store complex, and was not responsible to maintain it. However, Mr. Imhoff did admit that under the terms of his lease with the owners of the building he had an undivided interest in the common areas, and was also given the right to ten parking spaces in the lot. Mr. Imhoff testified he expected his employees and customers to park in the lot surrounding the building and walk along the sidewalk to get to the doors to enter to get to work.

Under Wis. Stat. § 102.03(1)(c)2 any employee going to and from his or her employment in the ordinary and usual way is deemed to be performing services growing out of and incidental to his or her employment, if injured while on the premises of the employer. In Hake v. Arthur Gallagher & Co., WC Claim No. 1989-009612 (LIRC Nov. 17, 1989), the commission found the employer's premises included the sidewalk outside the building in which the employer leased space. In the Hake case the employer rented space from the Mayfair Bank Tower under a lease which provided the employer with a right to use the parking areas, sidewalks, roadways and other common areas and facilities within or upon the building. In the Hake case the sidewalk outside the door from which the injured employee was apparently entering her vehicle and the roadway in which the vehicle had been driven from the parking lot to the pickup point, were not purely public municipal facilities, but were merely part of the privately owned parking area which under the lease were part of the leased site, which the employer had a common use right.

The commission noted in the Hake case that from the time the injured employee left her office in which she worked to the time she sustained the injury while entering the vehicle outside the building, the injured employee remained on the leased site. The commission concluded in the Hake case that at the time of her work injury the injured employee was on the premises of the employer within the meaning of § 102.23(1)(c)2. The commission noted in its memorandum opinion in the Hake case that the majority of courts in other states considering this issue have concluded that shopping mall parking lots and similar areas constitute the premises of employers operating in the malls. Professor Larson has also noted in his treatise on Worker's Compensation Law, Vol. 1, § 13.04(3) (2000), that where the place of employment is a building, it is not necessary that the employer own or lease the space where the injury occurred, but rather it is sufficient that the employer has some kind of right of passage.

Also, in a more recent case of Berry v. General Motors Acceptance Corp., (LIRC May 31, 2001), the injured employee worked in an office in a building where the employer leased office space on the second floor. The employee was hurt while leaving work for the day when she slipped and fell on the walkway just outside the front doors of the building and was injured. The commission noted in the Berry case the applicant was on a leased site when injured on property to which the employees of the employer had a common right to use the walk to the adjacent parking lot. The commission, citing the Hake case, determined the applicant's injury occurred on the employer's premises and therefore was a covered injury pursuant to Wis. Stat. § 102.03(1)(c)2.

The employer also cites the case of Halama v. Dept. of Industry, Labor and Human Relations, 48 Wis. 2d 328 (1970), in which an employee fell while walking down a public sidewalk outside of the fence of the enclosed premises of the employer. The employer states that the Wisconsin Supreme Court denied compensation because the injury was sustained in an area outside of the employer's control.

However, as the Hake case makes clear, the commission has long held that where an employer rents space in a building or shopping mall with common areas and the employer's employees have a right to use such common areas, any injury which occurs in such areas is considered the employer's premises under the Act. The employer admitted that its employees had an undivided nonexclusive interest in the common areas and the right to use such areas to enter and exit for work in our current case. Under the reasoning in the Hake case and the Berry case, the commission finds that the evidence was sufficient to establish that the applicant was injured on February 9, 2004 on the employer's premises while performing services growing out of and incidental to her employment, and arising out of her employment, leading to the need for medical treatment and temporary total disability as well as 20 percent permanent partial disability at the left elbow. Jurisdiction was appropriately reserved for such further findings, orders and awards as may be warranted.

cc:
Attorney Douglas J. Phebus
Attorney James C. Ratzel

Appealed to Circuit Court.

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