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

THOMAS G. PATEK, Applicant

AMERIQUIP CORP NEW HOLSTEIN, Employer

CONNECTICUT INDEMNITY INSURANCE CO, and
T I G INSURANCE COMPANY, Insurers


WORKER'S COMPENSATION DECISION
Claim No. 95025941


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: October 30, 1997
patekth.wsd : 175:101 ND6 3.12

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

 

MEMORANDUM OPINION

The employer asserts in its petition for commission review that the administrative law judge erred in determining that the April 13, 1995, incident was a work injury and consequently the applicant is entitled to the benefits he claims. The employer contends that the applicant's actions on April 13, 1995, constituted an intentionally self-inflicted injury. Under Wis. Stat. § 102.03 (1) (d) injuries that are intentionally self-inflicted are excluded from coverage.

The applicant testified that on April 13, 1995, he was performing his normal duties working on the second shift and had requested an inspector to come and look at his work over the employer's loudspeaker. The applicant testified that after making the request he heard a mocking voice repeating his request over the loudspeaker. The applicant testified that he did not respond or have any reaction at that time. The applicant further testified that toward the end of his shift as he was washing up he heard the same voice come over the loudspeaker mocking his request a second time. The applicant testified that at about the same time he saw the inspector who he had called for the inspection and when the inspector noticed him she began to laugh. The applicant testified that he concluded that it was the inspector's husband who was mocking him over the loudspeaker, and he punched a steel locker with his right hand in frustration and anger and in so doing fractured the third and fourth knuckle on his right hand.

The commission finds that in this case the evidence did not establish that the applicant intended to inflict injury on himself when he punched the locker. Rather, the applicant's actions in punching the locker was a reaction to being mocked and to seeing the inspector laughing at him. This is not a case in which the applicant took the action with the sole purpose to injury himself rather it appeared to be an angry and momentary outburst. The commission does not find that the applicant's injury was an intentional self-inflicted injury and therefore it does not fall within the meaning of Wis. Stat. § 102.03 (d).

The employer also contends that the applicant's actions of punching the metal locker represented a deviation from his employment and as such was not compensable. The administrative law judge appropriately noted that to the degree that it is alleged that the applicant's actions were itself a deviation it must be noted that the applicant's actions were a direct result of an occurrence at the workplace and was a portion of the work environment to which the applicant was subjected. This is not a case in which the applicant engaged in horseplay or some other nonwork-related activity which resulted in his injury. Rather, the applicant's actions constituted an impulsive and momentary deviation from his normal work duties. The applicant reacted after seeing the inspector laughing at him and realizing that it was the inspector's husband who had been mocking him over the loudspeaker.

The Wisconsin Supreme Court has held that if a deviation is impulsive, momentary and insubstantial it may not be sufficient to remove the applicant from the course of employment. Maahs v. Ind. Comm., 25 Wis. 2d 240 (1964). Although it could be argued that the applicant overreacted to the type of mocking that occurred, the fact that the inspector reinforced the mocking by laughing at the applicant and his immediate reaction thereto by punching the locker does not seem to be so unreasonable or unexpected to take his actions out of the course of his employment. The commission agrees with the administrative law judge that the harassment that the applicant suffered was part of the work environment and that his reaction though regrettable was not at all unusual to being repeatedly mocked over the intercom. The administrative law judge appropriately noted that it is difficult to suggest that the applicant's conduct in response to being mocked over the intercom was so unusual or extreme that it would disqualify the applicant from benefits. Given the applicant's credible testimony of the nature and onset of his injury the commission finds that the applicant injured his right hand while performing services arising out of and in the course of his employment and therefore the applicant suffered a compensable work injury on April 13, 1995.

cc: Attorney Mark R. Kramer
Attorney Linda S. Quartaro


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