STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JACOB WESTERHOF, Applicant

DEWITT ROSS & STEVENS LAW FIRM, Employer

EMPLOYERS ASSURANCE CORP, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2010-001099


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.

ORDER

The findings and order of the administrative law judge are affirmed.

 

Dated and mailed
November 30, 2011
westerj . wsd : 101 : 7 ND6 3.20, 3.26

 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The applicant is an attorney and a shareholder in a law firm. He was seriously injured on September 15, 2006, when the motorcycle he was driving tipped over as he left the interstate highway near Wausau while on a trip to a motorcycle rally in Tomahawk. He claims his injury arose out of his employment with the law firm because, at the time, he was "rainmaking" or "networking" on behalf of the employer.

The ALJ found that the applicant did not establish that he sustained his injury while performing services growing out of and incidental to employment--that is, in the course of employment. He found that the applicant did not intend to stop in Wisconsin Rapids and look at Mr. Franken's cottage on the way back, as Mr. Franken and some other witnesses testified. The ALJ further held that even if that was a purpose, the trip to Tomahawk would have been a deviation. The ALJ also found the purpose of the business trip was mainly social and that any "rainmaking" or "networking" purpose was too remote to make the trip a business trip.

The commission notes that the statutory requirement that a worker be "performing services growing out of and incidental to his or her employment" (Wis. Stat. § 102.03(1)(c)1) is to be liberally construed. Severson v. Industrial Commission, 194 Wis. 489, 494 (1936). See also Wisconsin Elec. Power Co. v. LIRC, 226 Wis. 2d 778, 796 (1999) (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). On the other hand, the supreme court has previously recognized that not every injury tangentially related to employment is compensable. In Schwab v. ILHR Department, 40 Wis. 2d 686 (1968), a worker was fatally injured while driving home from a supervisory get- together held on the invitation of the employer's personnel manager at a lodge off-premises which included a happy hour and dinner. The commission held that at the time of his injury, Mr. Schwab was not performing services growing out of and incidental to his employment.

In affirming the commission's decision, the court in Schwab quoted at length from a section of Professor Larson's treatise. In particular, the court noted Professor Larson's observation that:

And so, just as in the sleeping and eating cases some arbitrary time and space limitations must circumscribe the area within which the benefit [to the employer from having a well-rested, well-fed worker] establishes work-connection, the recreation cases must submit to some similar limitation, since otherwise there is no stopping point...

Schwab, 40 Wis. 2d at 692, citing 1 Larson, Law of Workmen's Compensation, p. 375, sec. 22.30. The quoted language remains in the treatise at 2 Arthur Larson & Lex K. Larson, Larson's Worker's Compensation Law § 22.05[3] (LEXIS NEXIS 2011).

Of course, the off-duty and off-premises activities in Schwab are distinguishable in terms of the "arbitrary time and space limitations" from the rainmaking activities the applicant claimed to be conducting when injured. This is not a case involving employer-sponsored recreation. Rather, the applicant contends that while recreation was involved in the trip, he was acting in the employer's interest in securing new business for the law firm, raising the application of Wis. Stat. 102.03(1)(f).(1)

However, Wis. Stat. 102.03(1)(f) assumes the trip to Tomahawk was at least in part required by employment. Like the ALJ, the commission cannot conclude that the record supports the conclusion that the applicant's trip to Tomahawk was a business trip--either as a "dual purpose trip" or a trip that involved a mutual benefit(2)--placing the applicant in the course of employment.

The commission acknowledges that the applicant did in fact have permission from the employer to engage in rainmaking activities generally, that the applicant was able to have his entertainment expenses reimbursed by the employer, and that the applicant's social activities could, and on some occasions did, have a benefit to the employer. On the other hand, Professor Larson states in his treatise:

It should be stressed that the authority of the particular employee to undertake entertainment or recreational activities on behalf of his employer must be genuine, and cannot be taken for granted merely because the employee is on a party or hunting trip with someone with whom the employer has actual or potential business relations.

2 Arthur Larson & Lex K. Larson, Larson's Worker's Compensation Law § 22.04[1][d] (LEXIS NEXIS 2011).

In this case, the record does not support the conclusion that the trip to Tomahawk was service--whether client entertainment, rainmaking or networking--growing out of or incidental to the applicant's employment. The business that the applicant generated by the weekly poker games was minimal. Even if those activities could be considered client entertainment, it does not follow that every trip or the other activities Mr. Franken and the applicant undertook together were client entertainment or business-related networking. Rather, the most reasonable reading of the evidence in this case indicates that the trip to Tomahawk was simply a social outing among friends who occasionally did business together.

In sum, the commission cannot conclude that the "the employer and the employee both divide[d] the benefit" from the trip to Tomahawk. Nor can the commission conclude that part of the purpose of the trip was to go to Mr. Franken's cottage in Wisconsin Rapids. Even if it was, the applicant deviated from that purpose once he drove north from Plover and away from Wisconsin Rapids.

cc: Attorney Michael H. Gillick
Attorney Roland C. Cafaro


Appealed to Circuit Court.

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Footnotes:

(1)( Back ) 102.03(1)(f) provides: 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. 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 the employee's employment.

(2)( Back ) A dual purpose trip is generally thought of as one where--for example--a traveling worker makes business calls and also detours en route (or continues on) to see relatives or conduct other personal business. Where a worker would have made the trip even in the absence of the personal business, the worker is "in the course of employment" during the trip under Wis. Stat. 102.03(2)(f), except while the applicant is engaged in a deviation for personal purposes. See Sauerwein v. ILHR Dept., 82 Wis. 2d 294, 302-03 (1978). The mutual benefit doctrine applies when--for example--a traveling worker delays his flight back home by a day, allowing him an additional day to sightsee while the employer gets reduced airfare. Referring to the mutual benefit doctrine, the supreme court has noted in the past that it has considered "whether the employer and the employee both divide the benefit from an employer's actions in determining whether an employee was injured while performing services growing out of and incidental to his or employment." WEPCO v. LIRC, 226 Wis. 2d 778, 24 note 12 (1999).

 


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