MICHAEL MCRAE, Applicant
PORTA PAINTING INC, Employer
SECURA SUPREME, Insurer
Porta Painting, Inc. and its insurance carrier submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued by the administrative law judge on January 12, 2007. The applicant submitted an answer to the petition and briefs were submitted by the parties. The preliminary issue is whether or not the applicant was performing service growing out of and incidental to his employment with Porta Painting when he was injured in a traffic accident involving his personal vehicle on January 7, 2005. Were the injury to be found compensable, the nature and extent of disability and liability for medical expense would also be at issue.
The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Interlocutory Order. The commission makes the following:
The applicant was a union painter who normally drove from his personal residence directly to the particular job location he was assigned to for that day. He drove his personal car and did not receive any reimbursement for travel, unless the jobsite was outside a five-county area that included Milwaukee, Ozaukee, Waukesha, Jefferson, and Washington Counties. The employer's business office was originally located in downtown Milwaukee, but in 2004, it was moved to Waukesha. The applicant lives in Twin Lakes, Wisconsin, which is near the Wisconsin and Illinois border. On infrequent occasions, averaging perhaps once a month, he would be required to go to the employer's office before going to the jobsite in order to pick up supplies or special equipment. However, normally everything he needed was already at the jobsite.
On the morning of Friday, January 7, 2005, the applicant set out in his vehicle to go to Aldrich Chemical Company in Milwaukee, where he had been performing work for the employer all that week. On the way to Aldrich he was involved in an accident with another vehicle, and sustained serious multiple injuries. He was off work for a substantial period of time and sustained permanent disability to his left hip and ankle, dental injuries, and a possible permanent disability due to a head injury. The initial question to be answered is when the accident occurred, was the applicant performing service growing out of and incidental to his employment?
The general rule is that employees coming and going to work in the ordinary and usual way are not covered under the Act until they reach the employer's premises (see Wis. Stat. § 102.03(1)(c)2.). The traveling employee exception (Wis. Stat. § 102.03(1)(f)) provides in relevant part:
"Every employee whose employment requires the employee to travel shall be deemed to be performing service growing out of and incidental to the employee's employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose."
The analysis of whether or not the traveling employee exception applies in commuting cases involving jobsites away from the main employer's premises begins with the question of whether there was any provision of transportation by the employer, either by providing an employer-owned vehicle or by reimbursing the employee for use of his own vehicle. The analysis also requires an answer to the question of whether or not the applicant's travel had some substantial connection to his employment duties. See, Doering v. LIRC, 187 Wis. 2d 472, 523 N.W.2d 142 (Ct. App. 1994).
In Doering, the employer provided the applicant with a company truck that the applicant drove to and from work and kept at home, so that whenever needed, the applicant would be available to make pick-ups and deliveries for the employer. In that case, the court determined that the applicant was a covered employee when he was killed one morning while driving the employer's truck from his home to work. The court held that the work-related use of the truck distinguished the case from Kerin v. Industrial Commission, 239 Wis. 617, 2 N.W.2d 223 (1942).
In Kerin, a union electrician who lived in Sun Prairie, was killed in an automobile accident on his way home from the jobsite in Evansville. He had been commuting with his own vehicle between his home and the jobsite, and because the job was outside his union's jurisdiction, the employer was reimbursing him a specific dollar amount each day for the commute. The court affirmed the commission's denial of coverage on the basis that the applicant's commute was personal, and served no related business purpose for the employer, even though the applicant did receive monetary reimbursement for it.
In the case at hand, the applicant was driving his own vehicle when the accident occurred. He received no reimbursement for the commute that was within the five-county area established in his union contract. There was no business-related purpose to the applicant's commute, he was simply going to work. The case cited by the administrative law judge (1) involved a "special errand," in which the employer instructed the worker (a salesperson) to call upon a customer before coming to work. The applicant was not performing any special errand when the accident occurred on January 7, 2005.
Accordingly, under the facts and circumstances of this case, it must be found that when the applicant was injured he was not performing service growing out of and incidental to his employment with the employer.
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge are reversed. The application is dismissed.
Dated and mailed August 23, 2007
mcraemi . wrr : 185 : 8 ND 3.25
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: The commission reversed the administrative law judge's decision based on the applicable law. There was no dispute concerning the facts of the case.
cc:
Attorney Robert T. Ward
Attorney C. Gordon Paulson
Appealed to Circuit Court. Affirmed July 16, 2008. Appealed to the Court of Appeals. Affirmed May 20, 2009, sub nom. McRae v. Porta Painting, Secura Supreme and LIRC, 2009 WI App 89, 320 Wis. 2d 176, 769 N.W.2d 74. Petition for review in Supreme Court denied.
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