JUDY A LYNN, Applicant
STOUGHTON TRAILERS LLC, Employer
STOUGHTON TRAILERS LLC, 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, 2010
lynnju . wsd : 101 : 1 ND6 3.17
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
Ann L. Crump, Commissioner
The applicant in this case was injured in a fall on a public sidewalk located about six inches outside of her employer's property line, while walking from her car to work. The case is interesting factually and legally because while the applicant fractured her elbow on the public sidewalk--which again is on land not owned by her employer--she contends she landed with her head crossing the property line into the employer's property.
The applicable statute is:
102.03 Conditions of liability. (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 on the premises of the employer, or while in the immediate vicinity of those premises if the injury results from an occurrence on the premises; any employee going between an employer's designated parking lot and the employer's work premises while on a direct route and in the ordinary and usual way; any volunteer fire fighter, first responder, emergency medical technician, rescue squad member, or diving team member while responding to a call ... is performing service growing out of and incidental to employment.
Thus, the general rule is injuries on the way to or from work are not compensable unless they are on the employer's premises. A statutory exception is allowed for falls occurring while the employer is walking from an employer-designated parking lot to the employer's premises. Otherwise,
"Where injury is sustained while the employee, going to or from work, is on a public street or walk, not controlled by the employer, coverage is denied."
Frisbie v. ILHR Department, 45 Wis. 2d 80, 86 (1969). See also: Halama v. ILHR Department, 48 Wis. 2d 328, 339 (1970) (stating that Frisbie upheld the commission's interpretation of the "on the premises requirement" of Wis. Stat. § 102.03(1)(c)1).
In this case, the applicant was not walking from the employer's designated parking lot when she fell. So the coverage provision in the second clause of Wis. Stat. § 102.03(1)(c)2 does not apply.
The employer's director of facilities testified that while the sidewalk and the terrace (the land between the sidewalk and the street) were not on its property, the employer still mowed the grass on the terrace and shoveled the snow from the sidewalk. Indeed, he testified that the employer had the responsibility to do so by city ordinance. Transcript, page 62-63. There was also testimony suggesting the employer tried to keep the sidewalk and terrace free of refuse or trash.
However, the ALJ correctly concluded that the employer's responsibilities were not enough to put the sidewalk and terrace under the employer's control. This issue is discussed somewhat in Halama, where the court confronted the argument that a property owner actually owns the land from the sidewalk to the middle of the road. In that case, the court held that the fact that fee (or title) remains in the employer is not enough:
It is true this court has recognized that the ". . . fee to the highway remains in the abutting owners, and that they may make such use of the highway as may be reasonable which does not interfere in any way with the public's right in the highway." This fact is recognized in the Frisbie Case in the comment: ". . . Where an employer has effectively converted a street into a part of its premises, using it for its private use and treating it as its private premises, such employer-controlled area may be considered a part of the premises of the employer even though it is still open to public use." This recognizes the right of an abutting property owner to make noninterfering use of public roads and walks, and in any given case "the precise test" is whether the employer-abutting owner has "in fact exercised" any such "dominion and control over the situs of the injury." As to public sidewalks and highways, it is the degree of control or dominion by the abutting landowner that is determinative in applying the "on the premises" requirement. Where the employer exercised full control over the property, it has been held to be part of the premises even when the situs of injury was outside an enclosed place of employment, and even upon property not owned by the employer. The right to compensation has been denied even where the employer owned the property but did not control its use. It is employer control, not the property rights of abutting owner, that can make a public street or sidewalk a part of an employer's premises. Here there is no proof, in fact no claim, that the employer exercised the dominion and control required to make a public sidewalk into a part of the premises of the employer.
Halama, at 48 Wis. 2d 331-32.
More directly, the commission has held, in a case upheld in circuit court, that performing snow and ice removal over a sidewalk as required by city ordinance is not an attempt to control the sidewalk. See Inga Williams v. DILHR, case no. 80 CV 0942 (Wis. Cir. Ct., Dane County, September 16, 1980). The commission adhered to this reasoning more recently in Ramos v. Everett Knitting, WC claim no. 95014002 (LIRC, January 23, 1997), aff'd sub nom. Ramos v. LIRC, case no. 97CV001041 (Wis. Cir. Ct., Milwaukee County, October 1, 1997). Finally, as the employer and ALJ point out, the Frisbie and Halama contain fairly strong language against expanding the definition of "premises" for worker's compensation purposes.
Indeed, the applicant does not strenuously argue on appeal that the sidewalk was on the employer's premises or under the employer's control. Rather, the applicant argues that because part of her body came down within the employer's premises--that is, her head landed within the property line six inches beyond the sidewalk--the injury occurred while she was on the premises of the employer.
The commission cannot agree. The applicant acknowledges that her elbow landed on the sidewalk, which was neither on the premises of the employer nor under the employer's control, as set out above. Even if her head was on the employer's premises, her elbow was not, and her elbow injury is the basis of her claim.(1)
In support of her argument that, once her head entered the employer's premises, her injury became compensable, the applicant cites language in Frisbee where the court stated:
If the claimant had reached the factory gate and stepped on the employer's premises, no doubt as to his coverage under the Workmen's Compensation law could exist.
Frisbie v. ILHR Department, 45 Wis. 2d 85-86.
The commission is not persuaded that Frisbie supports finding a compensable injury in this case. While the applicant asserts that her head landed on the employer's premises, it is certain her elbow did not. Even crediting the applicant's testimony that she landed with her face on the employer's premises and accepting the applicant's argument that once part of her body entered the employer's premises her whole body did, the applicant has not established that her elbow injury occurred after her head struck the employer's premises, an issue on which she bears the burden of proof.(2)
cc:
Attorney Thomas Hugo Strakeljahn
Attorney Douglas Feldman
Appealed to Circuit Court.
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