LAURA FORTUNE ADAMSKI , Applicant
STEVENS POINT AREA PUBLIC SCHOOL, Employer
WAUSAU BUSINESS INSURANCE COMPANY, 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 November 30, 2009
adamski . wsd : 101 : 1 ND
2.5, 3.25, 7.27
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
1. Compensable injury.
The applicant, a junior high school English teacher in Stevens Point, seeks compensation for an injury sustained while in the Wausau area to attend a teacher's convention. The commission conferred with the ALJ concerning witness credibility in this case, Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972), specifically regarding the credibility of the witnesses with regard to the expectation of the employer and practice of its employees regarding attendance at the convention. The ALJ informed the commission she found extremely credible the testimony of the applicant and Ms. Aanrud that it was a common practice, over many years, for teachers attending the convention to leave the convention early for lunch.
The ALJ also credited the testimony of the applicant and Ms. Aanrud that they were not required to attend all the morning sessions, but could talk to vendors instead if they chose. She noted that the employer's witness, Mr. Anderson, testified that it was permissible for the teachers to miss the morning sessions to discuss products with vendors. August 2008 transcript page 87. The ALJ further credited the applicant's testimony that she spoke to vendors during the second session. Finally, the ALJ observed that, when asked directly about the employer's expectation that teachers attend classes during the seminar, Mr. Anderson gave a long and somewhat waffling answer relying in large part on the collective bargaining agreement (August 2008 transcript page 79 et seq.), rather than straightforwardly testifying that teachers were expected to attend all classes and seminars, or to remain at the convention site speaking to vendors, for the entire duration of the seminar. Indeed, Mr. Anderson testified it would require speculation or conjecture to state that the teachers were required to attend three sessions in the morning and one in the afternoon, August 2008 transcript page 83; that even if they did so, the teachers would likely fall short of an eight-hour day, August 2008 transcript page 84; and that, regarding hours of work, "convention days are always somewhat speculative," August 2008 transcript page 85.
In order to be compensable under the workers compensations laws, an injury must occur while an employee is performing service growing out and incidental to his or her employment. Wisconsin Statutes § 102.03 (1)(c)1, Stats. In this case, because the applicant was on a business trip while she 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."
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). The burden of proving a personal deviation on the trip by the employee is upon the party asserting the deviation. CBS, Inc. v. LIRC, 219 Wis. 2d 564, 579 (1998).
Thus, an 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, at 219 Wis. 2d 577.
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. A traveling employee "is not required to seek immediate seclusion in a hotel and remain away from human beings at the risk of being charged with deviation from his employment." Hansen v. Industrial Commission, 258 Wis. 623 (1951). Finally, the supreme court has noted in traveling employees cases 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.
Based on the record in this case, and given the ALJ's credibility impressions which the commission shares, the commission agrees with the ALJ that the applicant did not engage in a deviation from the business trip which took her out of the course of employment, either by leaving the convention for lunch or by stopping on the way at a boutique to buy a t-shirt. The applicant went to Stevens Point to attend the convention, she had attended the convention before she was injured, and she and Ms. Aanrud testified credibly that they would have returned to the convention had the applicant not been injured. The commission cannot conclude that the employer actually required the applicant to remain at the convention for its entire duration. Rather, the commission concludes that the employer's employees engaged in a long-accepted practice of leaving the convention while the morning seminars were in session to have lunch off-premises. Moreover, even if there was a deviation, eating lunch is an act reasonably necessary for living, and making a brief stop to buy a clothing item en route to lunch is incidental to an act reasonably necessary for living.
If the employer had offered sufficient proof that the applicant was expected to remain on the convention premises for the entire duration of the convention activities, or that she could leave only for 45 minutes for lunch, the employer might well have rebutted the traveling employee presumption and a different case would have been presented. But no such understanding or expectation was shown here. The commission cannot conclude, therefore, that the applicant turned away or deviated from employment by leaving for lunch or briefly stopping to buy a t-shirt. Going to Stevens Point to attend the convention was service growing out and incidental to her employment under Wis. Stat. § 102.03(1)(c)1 and (f), and her activities while there did not amount to a deviation taking her out of the course of her employment.
2. Federal preemption.
The commission concludes, further, that it may affirm the ALJ's award allowing compensation despite the federal pre-emption defense raised by the employer. The employer contends findings involving the commonly-recognized practice or expectations regarding convention attendance requires an interpretation of the collective bargaining agreement between the employer and the applicant's labor union, so that her claim for compensation is pre-empted under Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988). As the employer points out, the commission has explained:
In Lingle vs. Norge Division of Magic Chef, Inc. , 486 U.S. 399, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988), a case arising out of an employe's lawsuit against her employer alleging that she was fired in retaliation for filing a claim for worker's compensation benefits, the United States Supreme Court held that application of state law is preempted by section 301 of the Labor Management Relations Act of 1947, 29 USC Section 185 (which vests jurisdiction in federal courts for lawsuits alleging breach of a collective bargaining agreement), if such application requires interpretation of a collective bargaining agreement. It has been noted that to the extent that evaluation of a claim under section 102.35 (3), Stats. would require an interpretation of a collective bargaining agreement, Lingle indicates that the 102.35 (3) claim would be preempted by federal law. Neal and Danas, Jr., Worker's Compensation Handbook (3d Edition 1990) section 7.29, page 7-16; Universal Foods Corporation vs. LIRC and Damato (Milwaukee County Circuit Court, Case No. 89-CV-014059, July 10, 1990)[(1)]. This is such a case. Evaluating the employee's claim and the employer's defense in this matter would inescapably require interpretation of the language of the collective bargaining agreement, and of the past practice of the parties in the application of the agreement, which is "equally a part of the collective bargaining agreement although not expressed in it," United Steel Workers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S.Ct. 1347 (1960). Application of state law is preempted under these circumstances, and the application must therefore be dismissed."
Ebben v. Valleycast Inc, WC claim no. 88-031689 (LIRC, January 22, 1991).
The commission has also stated:
Generally, if the commission must interpret a collective bargaining agreement to decide an unreasonable refusal to rehire claim, federal labor law preempts application of the statute. Universal Foods Corp. v. LIRC, 161 Wis. 2d 1, 6 (Ct. App. 1991) and Neal & Danas, Workers Compensation Handbook, sec. 7.29 (3d ed. 1990). This general rule derives from Lingle v. Norge Division of Magic Chef, 486 U.S. 399, 108 S. Ct. 1877 (1989), ... The supreme court held that application of the Illinois law would be preempted under sec. 301 of the federal Labor-Management Relations Act only if application of the Illinois law required the interpretation of a collective bargaining agreement.
The purpose of preemption in such a case is to ensure that collective bargaining agreements are interpreted under a uniform, certain federal law, rather than a mishmash collection of different interpretations under 50 different jurisdictions. However, the supreme court stated that a state law is not preempted simply because a collective bargaining agreement and a state law claim involve parallel remedies on the same set of facts. "In other words, even if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require precisely the same set of facts, as long as the state law claim can be resolved without interpreting the agreement itself, the claim is independent of the agreement for section 301 preemption purposes." Lingle, at 108 S Ct. 1983.
Thus, under both Lingle and Universal Foods Corp., the simple involvement of a collective bargaining agreement does not result in preemption or non-application of an unreasonable refusal to rehire claim. Rather, interpretation of the agreement must be necessary.
Dain v. Trail ET, WC claim no. 94022322 (LIRC, September 8, 1995).
Finally, our state supreme court has pointed out that Lingle holds that in cases involving the application of state laws regulating the conditions of employment or labor, pre-emption should not be lightly inferred, and that a claim independent of rights under a collective bargaining agreement should be allowed to go forward. Miller Brewing v. DILHR, 210 Wis. 2d 26, 326-40 (1997).
The collective bargaining agreement in effect at the time of applicant's injury states that a "school day" for junior high teachers "will be flexible, but for any individual teacher, it shall be considered to be eight hours within which is included a minimum consecutive 30 minute duty free lunch." Exhibit 6, Agreement, article 10, A. 2. g. The agreement also says that on the day of the convention, teachers may attend the convention or a school district in service day, but that a teacher workday in the class room is not an option. Agreement, article 19. B. 5.
The applicant's worker's compensation claim arises under Wis. Stat., ch. 102, of course, not the collective bargaining agreement. As the ALJ noted, a violation of work rules, such as those set out in a collective bargaining agreement, does not necessarily take a worker out of the course of employment for worker's compensation purposes. The collective bargaining agreement in effect at the time of the employee's injury does (1) allow for convention attendance which is not a "teacher workday in the class room" and (2) refer to a flexible "school day" considered to be 8 hours. However, under the facts of this case, the commission need not interpret those provisions to determine whether the applicant's activities on the day of her injury were the kind of deviation that took her out of the course of employment under Wis. Stat. § 102.03(c)1 and (f) for the purposes of her worker's compensation claim.
The collective bargaining agreement in effect at the time of the applicant's injury does not address convention attendance except as described above, nor does it address the extent to which activities off the convention premises are, or are not, within the course of employment. Further, as set out above, Mr. Anderson's testimony suggests that it was speculative as to whether attending the convention in its entirety would have added up to 8 hours. Simply because the applicant performed services under a collective bargaining agreement does not mandate federal preemption of her worker's compensation claim. Because the applicant's claim can, as described by the Lingle court, "be resolved without interpreting the agreement itself, the claim is independent of the agreement."
cc:
Attorney Richard Fortune
Attorney James Moermond
JAMES T. FLYNN, Chairperson, (dissenting):
While I agree with the majority's analysis of the federal preemption issue, I cannot agree with their application of the facts of this case to the "traveling employee statute," Wis. Stat. § 102.03 (1)(f) and the caselaw developed under that statute. I therefore dissent.
As the majority observes, 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). 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 has held:
"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. [Citations omitted]."
Goranson v. ILHR Department, 94 Wis. 2d 537, 550-551 (1980).(2) Ordinarily, an employer rebuts the presumed fact of continuing employment by presenting evidence of a deviation.
As the majority observes, an off-duty injury during a business trip ordinarily is 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. Thus, even when a traveling employee engages in a deviation for a personal or private purpose, the commission must still consider whether the deviation is "an act reasonably necessary for living or incidental thereto." CBS, Inc. v. LIRC, at 219 Wis. 2d 577.
Addressing the first prong of the test, the court has 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. See also: Wisconsin Elec. Power Co., at 226 Wis. 2d 789. Addressing the second prong of the test, the court has stated that an employee's actions are reasonably 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. v. LIRC, at 226 Wis. 2d 789 (1999).
The first question, then, is whether the applicant deviated from her employment. In this case, the applicant did not simply leave a few minutes early for lunch. That morning, the convention schedule provided classes from 9:00 to 10:00 a.m., from 10:15 to 11:15 a.m., and from 11:30 a.m. to 12:30 p.m. Lunch was provided onsite from 12:30 to 1:15 p.m. A speaker was scheduled for 1:15 p.m. The applicant left the convention at 11:00 a.m., during the second of the three morning sessions.
Moreover, the applicant was not actually en route to lunch when injured, but on a side trip to a boutique to buy a t-shirt. The trip to the boutique was "a meaningful manifestation to engage in activities purely personal to [her]" that served her interest alone. I believe there is little question the applicant had deviated from the business trip when she was injured.
The next issue is whether such deviation was for a personal purpose not reasonably necessary for living or incidental thereto. Again, when she was injured, the applicant was not simply going to lunch. She had deviated from the lunch trip to buy clothing. While an employee's actions are reasonably necessary for living or incidental thereto as long as they can be considered usual and proper customary conduct while living away from home, the applicant was not "living away from home" except in a very limited sense. She was in the Wausau area for a day to attend a convention. I cannot conclude that the side trip to buy a t-shirt was an act reasonably necessary to living or incidental to such an act.
Finally, I believe the majority's decision loses sight of an important distinction between the facts of this case and those in many of the reported appellate decisions involving traveling employees. This is not a case where a traveling employee is injured in recreational activities on a day off (as in CBS, Inc.) Nor is this a case where a worker is injured after an out-of-town convention has ended but before the flight home (as in Wisconsin Elec. Power Co.) This case does not pose the question of a worker, having completed his work duties for the day, being "required to seek immediate seclusion in a hotel and remain away from human beings at the risk of being charged with deviation from his employment." Hansen v. Industrial Commission, 258 Wis. 623 (1951).
Rather, the applicant left the convention site when the convention was still ongoing and attended to a personal errand. While the record might permit the inference the employer allowed its teachers to leave the convention early to go the lunch, I do not think it is reasonable to infer that the employer permitted its teachers to leave the convention for any purpose whenever they wanted. Further, the applicant's collective bargaining agreement identifies convention days as work days. Thus, I think this case is reasonably distinguishable from those involving off-duty injuries to workers required to remain out-of-town after their job duties have ended for the day.
Stated another way, the applicant was in the Wausau area for one day to attend the convention. She was injured after leaving the convention, which was still in session, while undertaking a purely personal errand. The applicant's personal errand does not fall within the classification of "acts reasonably necessary for living or incidental thereto" where, as here, the applicant essentially walked away from the still-ongoing convention to engage in it. Nor may the personal errand "be considered usual and proper customary conduct while living away from home" under the facts of this case, even though a worker on an overnight trip might be covered while clothes shopping after his or her actual job duties are done for the day.
For these reasons, I respectfully dissent.
/s/ James T. Flynn, Chairperson
Appealed to Circuit Court. Affirmed, June 16, 2010.
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