DEAN J PELLETIER, Applicant
TECHNOLOGY PLUS INC, Employer
TWIN CITY FIRE INS CO, Insurer
Technology Plus, Inc. and Twin City Fire Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on December 17, 2009. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue is whether or not the injury the applicant sustained in an automobile accident that occurred on April 14, 2009, arose out of and in the course of his employment with the employer. If a compensable injury is found, the applicant requests payment of medical expense, temporary total disability from the date of injury through the date of hearing, and an interlocutory order as to all future issues.
The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Interlocutory Order, except as herewith modified:
Delete the sentence that begins in the seventh line of page 4 of the administrative law judge's decision, and also delete the two sentences that immediately follow that sentence.
The rest and remainder of the administrative law judge's FINDINGS OF FACT are affirmed and reiterated as if set forth herein.
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified, are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed June, 8, 2010
pellede : 185 : 5 ND 3.25
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
Ann L. Crump, Commissioner
Respondents assert that when the applicant was injured on April 16, 2009, he was not a traveling employee within the meaning of Wis. Stat. § 102.03(1)(f). This assertion relies heavily on comparison of the applicant's circumstances to those of Kenneth Sauerwein, the applicant in Sauerwein v. ILHR Dept., 82 Wis. 2d 294, 262 N.W.2d 126 (1978).
Sauerwein was a permanent employee of Wisconsin Telephone Company and was sent to Houston, Texas to perform services for Southwestern Bell Telephone Company on an employee loan program. He arrived in Houston on February 2, 1974, and his anticipated length of stay was five or six months. After residing in a motel for about one month, he rented a furnished apartment in Houston. He also purchased an automobile in Houston and registered it in Texas. On May 13, 1974, Sauerwein went to a Holiday Inn swimming pool after his regular work day, and for several hours drank beer and swam and socialized with friends. He then fell or dove into the pool and severed his spinal cord resulting in quadriplegia.
The Department of Industry, Labor and Human Relations (predecessor to the commission) found that Sauerwein's "...work while he was stationed in Houston, Texas did not require him to travel." (Id. at 298). The court affirmed the department's finding as "...a finding of ultimate fact based on inferences from the evidentiary stipulation of the parties." (Id. at 301). The court noted the finding was based on inferences drawn from the undisputed facts that Sauerwein had been in Houston for three-and-one-half months, rented a furnished apartment there, purchased and registered a car in Texas, worked regular hours, and was not required to travel outside of Houston. The court explained that while different inferences could be drawn from these facts, the department's "...finding that this particular applicant's employment did not require him to travel was based on reasonable inferences from the facts and will not be disturbed." (Id. at 302).
In the case at hand, the applicant was a temporary help employee not a permanent employee. This was his first assignment from Technology Plus, and he had only been on site for nine days when he was injured. Even accepting the fact that he intended to rent an apartment in the area on a month-to-month basis, it could not be found with certainty that his proposed five-to-six month stay would actually have occurred. The work was on an as-needed basis, and other operators had been transferred to another plant after their training was completed.(1) Finally, the per diem basis of reimbursement for food and lodging was indicative of traveling employee status, as was the employer's agreement to allow the applicant one expense-paid trip home each month.
While there certainly were factual similarities between the circumstances of the Sauerwein case and the applicant's case, there were also significant factual dissimilarities as noted above. Significant factual dissimilarities also exist between the applicant's case and the other cases cited by respondents in their arguments to the commission. Of course, each case before the commission is governed by its own facts and circumstances. United Wisconsin Insurance v. LIRC, 229 Wis. 2d 416, 423, 600 N.W.2d 186 (Ct. App. 1999); Glodowski v. Industrial Comm., 11 Wis. 2d 525, 530, 105 N.W.2d 833 (1960).
The commission concurred with the administrative law judge that after weighing the undisputed facts of the applicant's circumstances, the reasonable inference from those facts was that he was a traveling employee of the employer when injured on April 14, 2009.
The commission deleted the administrative law judge's finding regarding a possible alternative theory of coverage. The record before the commission contains no evidence documenting that the applicant and his coworkers used their lunch period to discuss work-related topics.
cc:
Attorney Monika Hartl
Attorney Gary S. Stanislawski
Appealed to Circuit Court. Affirmed March 29, 2011. Appealed to Court of Appeals.
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