LEE CHRISTOPHER SANTINI, Applicant
BRUNSWICK CORPORATION, Employer
BRUNSWICK CORPORATION, Insurance Carrier.
The applicant filed an application for hearing in June 2005 alleging an injury from an assault by a coworker on August 29, 2004. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on April 29, 2008.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, and an average weekly wage at the statutory maximum for disability compensation purposes. The primary issue in dispute was whether the applicant suffered an injury arising out of his employment, while performing services growing out of and incidental to that employment. Ancillary issues included the question of nature and extent of disability and the respondent's liability for medical expenses.
On September 3, 2008, the ALJ issued his decision in the respondent's favor. The applicant filed a timely petition for commission review.
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 makes the following:
The applicant was born in 1967. He is a die cast operator for the employer. He operates a machine that pours molten aluminum into casting forms to make boat parts. The parts then go on a conveyor where they are cut by other workers called sawyers.
According to the applicant, sawyers on occasion tried to persuade die cast operators to make parts other than those scheduled by management. A particular sawyer, Weber, made most of the requests. Indeed, the applicant testified that Weber made such requests daily, in an attempt to get easier work. Weber also asked the die casters to stop work early. The applicant would not comply with either request. He explained at the hearing that a die-caster could get in trouble with management for departing from the scheduled work.
The die cast operators complained to management about these requests from sawyers generally and Weber in particular. The applicant believed that other die cast operators may have agreed to Weber's requests to change the production schedule; again, he himself did not.
The applicant testified that he and Weber had had "confrontations" at work about Weber's request, but he also acknowledged he had told the police there had been no "confrontations" at work. At the hearing, the applicant explained that the confrontations, or conversations, at work had not been heated. Transcript, pages 51 and 52. He also acknowledged that he had had no dealings with Weber for the four days preceding the injury, August 29, 2004.
On that day, the applicant worked a double shift. He did not know if Weber worked that day, but Weber was not working in the area where the applicant worked. The work day apparently passed without incident, and the applicant went home and showered. The applicant then went to a local bar, the Main Pub, to relax.
While the applicant was at the tavern and apparently seated at the bar, Weber came with his fiance and stood behind him. The applicant, a regular at the bar (as well as a past owner of the bar), testified that it was unusual for Weber to frequent the place. Turning around, the applicant saw Weber standing behind him with a closed fist, and asked if he was there to start trouble. Weber's response was that he had not decided, and he sat down next to the applicant.
Weber then began to complain to the applicant about the production schedule at work, and wondered why the applicant would not depart from the schedule when other die cast operators would. The discussion went on in this vein for 20 to 30 minutes, turning into an argument with the applicant telling Weber to address his concerns to the employer's management. The applicant testified the discussion got heated.
Other topics, however, were also discussed. Weber introduced his fiance and the applicant bought them both a drink and congratulated them on their engagement. Weber also mentioned a third worker had told him (Weber) that the applicant had called Weber a name; apparently Weber tried to call the third worker from the bar but couldn't reach him. The tone of the conversation varied, and the men's voices rose and fell.
The conversation eventually became especially animated, and the bar owner asked the applicant and Weber to leave. The men left through the same door, and continued to carry on their discussion about the production schedule at work outside the bar. As the men talked, the applicant tried to keep a mailbox between him and Weber. He noticed Weber looking over his (the applicant's) shoulder back toward the bar and turned to see what Weber was looking at. As he turned back around, Weber struck him in the head.
The applicant did not recall anything more until he woke in a hospital room. Exhibit E is a picture of the applicant a few days after the incident. It is evident that Weber struck the applicant in the head more than once. He had multiple lacerations, a broken nose and a fracture right eye orbit.
The applicant testified that he did not strike the first blow, did not push Weber, and was unaware of any reason for animosity not related to work.
The basic elements of a compensable injury under the Worker's Compensation Act are set out in Wis. Stat. § 102.03. Particularly relevant in this case are the requirements:
The supreme court has explained that:
The ... clause, "performing service growing out of and incidental to his or her employment," is used interchangeably with the phrase "course of employment." "Both phrases refer to the time, place, and circumstances under which the injury occurred."
"An injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while he or she is fulfilling his or her duties or engaged in doing something incidental thereto."
Ide v. LIRC, 224 Wis. 2d 159, 16 (1999) (citations omitted.)
The court has also explained that:
The "arising out of" language of § 102.03(1)(e) refers to the causal origin of an employee's injury. However, "arising out of his or her employment" is not synonymous with the phrase "caused by the employment." In interpreting § 102.03(1)(e), we have adopted the "positional risk" doctrine:
"Accidents arise out of employment if the conditions or obligations of the employment create a zone of special danger out of which the accident causing the injury arose. Stated another way, an accident arises out of employment when by reason of employment the employee is present at a place where he is injured through the agency of a third person, an outside force, or the conditions of special danger."
However, when the origin of the assault is purely private and personal, and the employment in no way contributes to the incident, the positional risk doctrine does not apply.
Weiss v. City of Milwaukee, 208 Wis. 2d 95 20 (1995) (citations omitted). Along similar lines, the supreme court has said that "[w]hen an attack occurs during the course of employment and arises from personal animus imported from a private relationship, the incident arises out of the claimant's employment if employment conditions have contributed to or facilitated the attack." Weiss v. City of Milwaukee, 208 Wis. 2d 95 29 (1997).
A worker intentionally beaten by a coworker is injured in an "accident" for the purposes of Wisconsin worker's compensation law. Jenson v. Employers Mut. Casualty Co., 161 Wis. 2d 253, 264-66 (1991). If the applicant had been assaulted on the employer's premises during his work hours by a coworker following a confrontation about the employer's production schedule, there likely would have been little question that such an assault arose out of employment and occurred during the course of employment.
Here, however, the assault occurred off the employer's premises and well after work hours, which implicates the issue of whether, at the time of injury, the applicant was "in the course of employment," that is, was performing service growing out of and incidental to employment. As Weiss demonstrates, the commission must find both that the attack arose out of the applicant's employment and occurred in the course of employment. Before considering the "arising out of" issue and the potential applicability of the positional risk doctrine, then, the commission must address the separate "course of employment" issue."(1)
On this point, the supreme court has observed:
The employment must establish the limits of the risk. Exactly as the working man is entitled to his wages, so he should be entitled to indemnity for the injuries sustained in the natural course of his labor. This excludes injuries sustained when off duty and while the relation of employment does not operate upon him by requiring him to do anything or be in a particular place. He then conducts himself according to his own wishes, sets the stage himself, and controls the elements that constitute the hazard. Where there is no evidence that at the time the injury was received the claimant was engaged in any work for his employer, a finding is not warranted that the injury arose out of and in the course of his employment. [Emphasis supplied.]
State Young Men's C. Asso. v. Industrial Commission, 235 Wis. 161, 165-66 (1940).(2)
In this case, the commission cannot conclude the applicant has proven that he was performing services growing out of and incidental to employment--that he was in the course of employment--when injured. Again, his work shift had ended well before the assault occurred, he was off the employer's premises, and he was neither working nor at a location where the employer required him to be.(3) Nor can the commission conclude that the fact that the applicant and Weber argued about work before the assault meant that the applicant returned to or resumed the course of employment. The two men did not work together on the day of the assault, and apparently had not worked together for several days. The assault occurred only after an extended conversation in a purely social setting that included other matters, including purely social matters. The commission declines to conclude that the applicant somehow re-entered the course of employment by virtue of the discussion of work matters, based on the record before it.
The commission recognizes its duty to construe the worker's compensation act liberally to include all service that can be reasonably said to come within it. Applied Plastics, 121 Wis. 2d at 280. The commission does not rule out the possibility that under more persuasive facts a worker may remain in or resume the course of employment during an after-hours, off-premises confrontation with a coworker about employment matters.(4) However, this is not such a case.
The hearing application must therefore be dismissed
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed. The application is dismissed.
Dated and mailed April 29, 2009
santinl . wrr : 101 : 1 ND 3.6, 3.7, 3.18, 3.33, 8.28
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Wisconsin does have a "spill over danger" statute, applicable to coming to and going from work, which provides that
102.03(1) Liability under this chapter shall exist against an employer only where the following conditions concur:
(c) 1. Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment.
2. Any employee going to and from his or her employment in the ordinary and usual way, ... while in the immediate vicinity thereof if the injury results from an occurrence on the premises, ... is performing service growing out of and incidental to employment.
The supreme court has held that legislative adoption of this "'spilled over danger' principle means that if anything which is a hazard of the employment spills over the boundary line of the premises and injures an employee, who is going to or from his employment, he is covered provided he is in the immediate vicinity of the premises." Frisbie v. DILHR, 45 Wis. 2d 80, 91 (1969). The court also noted Professor Larson's observation that "... the real justification for extending course of employment beyond the premises is the necessity of embracing off-premises conditions that deserve to be called risks of this employment...." However, the statute by its terms applies only to an injury while going to work or coming home from work, a situation not present in this case.
The commission also observes that in his treatise, Professor Larson suggests that:
In practice, the "course of employment" and "arising out of employment" tests are not, and should not be, applied entirely independently; they are both parts of a single test of work-connection, and therefore deficiencies in the strength of one factor are sometimes to be made up by the strength in the other.
2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 29.01 [LexisNexis 2008]. In other words, Professor Larson develops a "quantum theory" of work connection, under which the decisionmaker balances the "injury arising out employment" facts with the "worker in the course of employment" facts, so that a strong "injury arising out of employment case" could strengthen weak "worker in the course of employment" facts to reach the ultimate conclusion of "work-connectedness." However, as the professor concedes, this theory has not been embraced by courts which insist on clear evidence sufficient to establish independently both the "injury arising out of employment" element and the "worker in the course of employment (performing services growing out of and incidental to employment)" element. His treatise thus notes a number of cases from other jurisdictions involving assaults outside of work hours from where compensation has generally been denied. Id., at § 29.02 [intro.] and [1].
Finally, the commission considered the effect of the doctrine of issue preclusion with respect to an arbitration between the employer and Weber's labor union on the issue of whether the employer had just cause to discharge Weber. In particular, the applicant argues that the doctrine applies with respect to the arbitrator's findings that:
The specific provision in the [employer's] policy manual which describes the Company authority to discipline for violence at specific events or locations does not prevent discipline in this case. The incident is clearly work related. The incident, because of the severe injuries, is a threat to plant morale as surely as if it had occurred in the Company parking lot or employee break room.
Weber and Santini's only relationship evolved around their work. They had a dispute over the way their jobs should be performed. Weber went looking for Santini on the evening in question. He was either going to have Santini apologize or he would fight him.
Exhibit B, arbitrator's decision, page 14. The arbitrator also found that:
The encounter was not accidental. It was a calculated, deliberate effort to find Santini for the purpose of settling a name calling episode that he believed Santini had stared as part of a continuing workplace argument between the two men.
Exhibit B, arbitrator's decision, page 10.
The court of appeals has stated that the general rule on issue preclusion is that when "an issue of fact or law is actually litigated and determined by a valid judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. [Emphasis added.]" Precision Erecting, Inc. v. M & I Marshall & Ilsley Bank, 224 Wis. 2d 288, 301 (Ct. App. 1998) (citing the Restatement Second, Judgments § 27).
The court of appeals has also observed that:
13..., any application of the issue preclusion doctrine must comport with principles of fundamental fairness. See Precision Erecting, 224 Wis. 2d at 304. The Supreme Court has adopted a five-factor fundamental fairness test. See id. at 305. A court may consider some or all of the following factors when making the decision to invoke issue preclusion:
(1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment;
(2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law;
(3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue;
(4) have the burdens of persuasion shifted such that a party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or
(5) are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?
See also Teriaca v. Milwaukee Employee's Retirement System, 2003 WI App 145, 265 Wis. 2d 829.
The commission concludes the doctrine of issue preclusion does not apply in this case for three reasons. First, the commission cannot determine from the record whether the parties agreed to some type of review of arbitrator's decision beyond the extremely limited conditions under which a court may overturn an arbitrator's decision. (see Wis. Stat. § 788.10 and Dane County v. Dane County Union Local 65, 210 Wis. 2d 267, 274-75, 565 N.W.2d 540 (1997). Thus, the commission cannot determine the extent to which the arbitrator's decision could be reviewed.
Second, the issue of whether the applicant was in the course of employment--whether he was performing services growing out of and incidental to employment--when he was injured is not the same as the issue of whether Weber's conduction was sufficiently work-related to give the employer just cause for the termination. The questions of law involved arise from distinct claims. The commission appreciates that the applicant has framed his issue preclusion argument in terms of fact findings rather than legal conclusions, but even so the commission does not believe the respondent is necessarily estopped by fact findings made in an entirely different context in an entirely different claim.
Finally, the arbitrator's decision resolved a dispute between Weber's labor union and the employer. This claim is between the applicant, the employer, and its worker's compensation insurer. The court of appeals has, of course, held that the preclusive doctrine of collateral estoppel does not require an identity of parties if it is raised defensively to prevent a party from relitigating an issue or issues conclusively resolved against it. Manu-Tronics v. Effective Management Syst., 163 Wis. 2d 304, 316 (Ct. App. 1991). Here, however, the applicant may fairly be characterized as trying to raise the doctrine of collateral estoppel offensively against the respondent. That is, the applicant does not raise the doctrine of issue preclusion to prevent the respondent from relitigating issues previously resolved against it. Rather, the applicant suggests that particular fact findings made in the employer's favor in the arbitration claim involving different parties should now have a preclusive effect in the worker's compensation claim it raises against the respondent.
cc: Attorney Anthony O'Malley
Attorney Matthew Siderits
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