MICHAEL DENGEL, Applicant
COUNTY OF OUTAGAMIE, Employer
COUNTY OF OUTAGAMIE, Insurer
C/O WILLIS OF WISCONSIN INC
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:
Delete Section I. A. 2. "One Dollar Per Hour During Pager Duty" of the ALJ's decision, beginning on page 6 and ending on page 7.
The findings and order of the administrative law judge, as modified, are affirmed. Within 30 days from this order, the respondent and insurance carrier shall pay:
1. the applicant, Michael Dengel, the sum of Fourteen thousand two hundred ninety dollars and seventy-four cents ($14,290.74) for TTD and PPD; the sum of Eight hundred seventy-six dollars and seventy-nine cents ($876.79) for out-of-pocket medical and drug expenses plus Three hundred ninety-seven dollars and seventy cents ($397.70) for mileage expense;
2. to applicant's attorney, Stuart Spaude, a combined total of Three thousand five hundred seventy-two dollars and sixty-eight cents ($3,572.68) for attorney fees, and
3. Network Health Plan the sum of Twenty-four thousand three hundred seventy four dollars and forty five cents ($24,374.45).
Jurisdiction is reserved for such further findings, orders and awards as may be warranted in the future.
Dated and mailed
May 24, 2012
dengemi : 150 : 6 ND6 3.25
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The respondent petitioned the ALJ's decision finding coverage for an injury to the applicant's shoulder while returning from "on-call" work on January 4, 2009. The injury occurred as the applicant was walking around his car to in order to enter his home. His garage was small and his route into his home required stepping onto his driveway around the back of his car.(1) It was icy and the applicant grabbed a scoop of salt and threw it onto the driveway as he was walking around the back of the car. He slipped and fell while doing this and injured his shoulder.
At the hearing, the employer disputed whether the injury was sustained as a result of an accident arising out of his employment and while performing services growing out of and incidental to his employment.(2)
Generally, workers are not covered while commuting to and from work. There are certain exceptions for "special errands or trips"(3) and under Wis. Stat. § 102.03(1)(f) for traveling employees. In Krause v. Western Cas. Sur. Co., 3 Wis. 2d 61, 68, 87 N.W.2d 875, 880 (1958), the court explained,
However, an exception to this rule is generally recognized where the employee's compensation covers the time involved in going to or from his work, or an allowance is made for the cost of transportation. A.L.R. 250 and 1 Larson, Law of Workmen's Compensation, p. 227, sec. 16.20.
In terms of whether the employee was paid overtime at the time of the injury, the witnesses gave differing testimony. The administrative law judge, who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, credited the applicant's testimony. Based upon an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility determination. As such, the commission finds that the applicant was compensated for his call time at the overtime rate and affirms the portion of the ALJ's decision under Section I. A. 1. finding a "course of employment."
Next, the commission has removed as unnecessary Section I. A. 2. of the ALJ's decision (pages 6-7) regarding the pager pay as a basis for finding a "course of employment."(4)
The Wisconsin courts apply the related concept of a private errand.(5) The commission finds that the circumstances of the applicant's "on call" work on January 4, 2009 fall within the "special errand" exception because the applicant was required to make an emergency trip for the employer's benefit.
Given the application of the special errand exception the applicant would be entitled to "portal to portal" coverage, within the context of Wis. Stat. § 102.03(c)1. Limited cases defining "portal" exist, even Professor Larson notes that there are only a few opinions addressing the issue of what constitutes a "portal." 1-14 Larson's Workers' Compensation - Desk Edition § 14.05, at 7-357 (Matthew Bender & Co. Inc., Lexis Nexis Group, 2011).
The Wisconsin legislature added language to Wis. Stat. 102.01(1)(c)2 with 2009 Wis. Act. 206, effective May 1, 2010, which codified the special errand rule for emergency responders. In particular, the May 8, 2009, Worker's Compensation Advisory Council (WCAC) meeting minutes reflect that the law change was proposed following a concern that an emergency volunteer responder had been denied coverage when he was injured en route to the fire station while responding to the call.(6) The WCAC June 5, 2009 meeting minutes reflect a desire to balance the coverage of such trips as special errands with the concern about private deviations. The minutes also reflect a suggestion that the language mirror the traveling salesperson provision."(7)
With respect to the traveling sales person statutory provision, Wis. Stat. § 102.03(1)(f), in Black River Dairy Products v. Department of Industry, Labor and Human Relations, 58 Wis. 2d 537, 544-45, 207 N.W.2d 65 (1973), compensation was found for an applicant, a pizza salesman, who was injured when he slipped on his icy driveway walking from his door to his delivery truck. The court found that the applicant was not just going to work, he was at work at the time of the incident. The court explained,
The Workmen's Compensation Act is not confined by common-law concepts of scope of employment, and the test of recovery is not a casual relation between the nature of the employment of the injured party and the accident. It is not necessary that the employee be engaged at the time of the injury in an activity of benefit to his employer. Fels v. Industrial Comm., supra. [1] Rather, the statute, sec. 102.03, controls the conditions as to what is or is not compensable. This court has consistently stated that the workmen's compensation law must be liberally construed to include all services that can be reasonably said to come within it. Fels v. Industrial Comm., supra; Grant County Service Bureau v. Industrial Comm. (1964), 25 Wis. 2d 579, 131 N.W.2d 293.
Whether we consider this case to be a traveling salesman's claim under sec. 102.03 (1) (f), Stats., or an exception to going to work on the premises of the employer under sec. 102.03 (1) (c) 1, a liberal interpretation of the Workmen's Compensation [**69] Act requires that coverage be afforded to the claimant.
The last sentence of sec. 102.03 (1) (c) 1, Stats., provides the exception -- "The premises of his employer shall be deemed to include also the premises of any other person on whose premises service is being performed."[1] Black River Dairy Products at 544.
In the matter currently before the commission, the starting and end point for the applicant's "special errand trip" became part of the trip itself. In particular, the employer imposed a 30-minute call response requirement and paid the applicant for the trip. Also, the nature of the time of the call, after hours and weekends, and the fact that the commute time could be greater than the repair time itself makes the trip a substantial part of the service.(8) Next, while the commission declines to define a uniform end point for the "portal" in special errand cases, it concludes that the applicant was still in the process of returning from his trip when he fell in his driveway; he had not resumed his personal on-call activities and no significant deviation took place.
Thus, the decision of the ALJ is affirmed, as modified.
cc:
Attorney James G. Nowakowski
Attorney Stuart Spaude
Appealed to circuit court. Affirmed in oral ruling on 12/12/2012, judgment entered on 12/17/2012. Appealed to Court of Appeals. Affirmed per curiam July 30, 2013.
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