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

GILBERT KEENE, Applicant

L & S TRUCKING, Employer

SENTRY SELECT, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2008-037854


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, except that it makes the following modifications:

1. Delete the last sentence of the first full paragraph beginning on the fifth (last) page of the ALJ's decision and substitute:

"However, while the applicant suffered the stroke itself due to circumstances solely personal to him, he should be allowed to litigate the issue of whether he is entitled to compensation based on the claim that his employment caused a delay in receiving treatment for his stroke. This order shall be left interlocutory on that issue."

2. Delete the ALJ's order and substitute the second paragraph of the commission's interlocutory order.

NOW, THEREFORE, the Labor and Industry Review makes this

INTERLOCUTORY ORDER

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

No compensation is due under this order. However, the matter is remanded to the department for further hearing and decision on the issue of whether the applicant is entitled to compensation based on the claim that his employment caused a delay in receiving treatment for his stroke.

Dated and mailed
November 30, 2011
keenegi . wmd : 101 : 9 ND6 3.26,  3.33,  3.34 3.35     

 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

This case involves an over-the-road truck driver who had a stroke while traveling to Pennsylvania to make a delivery. At issue is whether the disability from the stroke is a compensable injury under the Worker's Compensation Act. To be compensable, Wis. Stat. § § 102.03(1)(c) and (e) require that the accident or disease causing injury arise out of employment, and that, at the time of the injury, the worker be performing services growing out of and incidental to his or her employment.

The supreme court has noted that "[t]he phrase 'arising out of' refers to the causal origin of the injury...." Goranson v. ILHR Department, 94 Wis. 2d, 537, 549 (1980). The "growing out of and incidental to employment test" is sometimes referred to as the "course of employment test." Ide v. LIRC, 224 Wis. 2d 159, 17 (1999). It refers to the time, place, and circumstances of the accident in relation to the employment. Goranson, 94 Wis. 2d at 549; Ide v. LIRC, 224 Wis. 2d 159, 17.

Here, because the applicant was an over-the-road truck driver, he was a traveling employee, implicating Wis. Stat. § 102.03(1)(f), which provides:

102.03(1)(f) 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.

In this case, there is little dispute that, at the time of the injury, the applicant was in the course of employment--that is, he was performing services growing out of or incidental to his employment--by virtue of Wis. Stat. § 102.03(1)(f).

The closer question is whether his disability arose out of his employment with the employer. That question implicates the last sentence of Wis. Stat. § 102.03(1)(f) which states:

...Any accident or disease arising out of a hazard of such service shall be deemed to arise out of the employee's employment.

The department's interpretative footnote adds:

9 Accident or disease must arise out of a hazard of employment, and accidents and diseases not caused by reason of incidents of service are not to be compensated. Injuries, whether accidental or otherwise, must therefore arise out of the business circumstances of the trip and not merely occur because of a personal condition or disability bearing no relation whatsoever to service.

DWD, Worker's Compensation Act with Amendments to December 2008 (WKC-1-P (R.02/2009).1(1)

The applicant cites Hansen v. Industrial Commission, 258 Wis. 623 (1951), a case involving a traveling employee, where the court held that "because his injury occurred during such employment, it is deemed to have arisen out of his employment." Hansen, 258 Wis. at 627. This could be read to suggest that any injury occurring during a trip is compensable, even if due to a force solely personal to the employee. It appears, however, that Hansen was decided under a different version of Wis. Stat. § 102.03(1)(f), as the court's decision suggests the statute stated: "any injury occurring during such employment shall be deemed to arise out of his employment..." Id., 258 Wis. at 636.

The statute's wording is materially different now. The current version of Wis. Stat. § 102.03(1)(f) says that an accident arising out of a hazard of the employee's service while traveling is deemed to be arising out of the employee's employment. It does not say that any accident or disease occurring while an employee travels is deemed to arise out employment.

While the supreme court has recognized that the statute provides a traveling employee with a presumption in favor of the "arising out of" and "course of employment" requirements, the statute does not modify those requirements. Goranson v. ILHR Department, 94 Wis. 2d at 549. Thus, "even in those cases where the travelling employee presumption applies, the 'accident or disease must arise out of a hazard of such service.' [Citation omitted; italics in original]." Id., 94 Wis. 2d at 550. Or, again, as the department puts it in its interpretative footnote:

Injuries, whether accidental or otherwise, must therefore arise out of the business circumstances of the trip and not merely occur because of a personal condition or disability bearing no relation whatsoever to service.

In this case, the ALJ reasonably concluded that the applicant's stroke did not arise out of his employment but was due to circumstances solely personal to him. The applicant was found in his underwear on the floor of the sleeping compartment of his truck. He had personal health conditions and other risk factors associated with his stroke, including a relatively low level of HDL ("good") cholesterol, his age, his gender, and cigarette smoking, as well untreated hypertension and diabetes. Dr. Ismail initially characterized the etiology, or cause, of the applicant's stroke as uncertain and unknown, a characterization with which Dr. Costa agreed.

On appeal, however, the applicant argues that even if his stroke did not arise out of employment, the severely disabling consequences of the stroke did. With his petition for review, he submits a report from his doctor stating that the outcome would have been better had the applicant received immediate treatment, or at least treatment within a three-hour window of opportunity. Dr. Zwicke's report makes a very similar observation. On this basis, the applicant asks to have this matter remanded to the department to take additional evidence as to how much improvement the applicant would have in his functional abilities had he been discovered earlier.

The employer and its insurer (collectively, the respondent) assert that the applicant's request should be denied because it was not made earlier, because the applicant would still have to prove causation and he cannot, because the applicant's claim is premised on fault which does not factor into worker's compensation liability, and because any evidence regarding this claim would be too speculative to permit a decision awarding compensation.

Neither party cites any legal authority for the underlying proposition, which is whether a worker may bring a claim for increased disability when the hazards of employment make an idiopathic injury--or an injury due to a source solely personal to an employee--worse.

The respondent suggests a worker may not bring such a claim because he or she cannot prove that the accident or disease causing injury arose out of employment as required by Wis. Stat. § 102.03(1)(e). However, in Cutler-Hammer v. Industrial Comm., 5 Wis. 2d 247 (1958), the court stated:

... 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.

Cutler-Hammer, Inc., 5 Wis. 2d at 254. The supreme court subsequently characterized the Goranson holding as making it clear "that an injury is noncompensable if the Commission concludes that the injury was caused by purely personal forces, so that employment contributes nothing to the injury." Heritage Mutual Ins. Co. v. Larsen, 2001 WI 30, 48, 242 Wis. 2d 47.

The applicant in essence is asserting that this is not a situation where his employment "contribute[d] nothing to the injury." Rather, he asserts his traveling employment put him in a situation where he suffered an injury, or at least he suffered a worse injury, arising from the isolation of the truck stop which is a condition of special danger or a hazard of travel.

This situation is analogous to that involving a worker who falls due to an idiopathic condition--a condition solely personal to him or her such as epilepsy, diabetes, or a heart attack--but suffers a more serious injury because of a hazard of employment such as unusual height or an operating buzz saw. Professor Larson indicates that

the basic rule, on which there is now general agreement, is that the effects of such a fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.

1 Larson, Workers' Compensation Law § 9.01 (LexisNexis 2011).

The commission declines to rule out the applicant's claim based on a delay in obtaining treatment in this case. The commission appreciates that the applicant did not litigate this issue at the hearing before the ALJ, but the commission's authority to direct the taking of additional evidence under Wis. Stat. § 102.18(3) is not limited to issues raised at hearing. While it may turn out, as the respondent suggests, that the evidence the applicant introduces will not eliminate speculation and guess--and so be unable to establish the right to compensation--he should have the chance to be heard and present evidence on the issue.

To summarize, the commission agrees with the ALJ that the applicant suffered the stroke itself due to a circumstance solely personal to him. However, the commission remands this matter for the taking of additional evidence, and decision by an administrative law judge, on the issue of whether the applicant is entitled to compensation based on a delay in receiving treatment for his stroke.

 

cc: Attorney Benjamin C. Welch
Attorney Scott E. Wade


[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) As the commission is aware, department footnotes are given great weight in construing the workers compensation statutes. Pigeon v. DILHR, 109 Wis. 2d 519, 524 (1982).

 


uploaded 2012/01/20