BARBARA L SHORE, Applicant
DEPT OF ADMINISTRATION, Employer
DEPT OF ADMINISTRATION, 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, except that it makes the following modifications:
1. Replace the second and third sentences on the eighth page of the ALJ's Decision with the following:
Because the applicant has sustained permanent partial disability, jurisdiction is reserved for such further findings, orders and awards as may be warranted in the future.(1)
2. Replace the ALJ's ORDER with the following INTERLOCUTORY ORDER language:
Within 30 days, respondent shall pay as compensation to Barbara L. Shore, the sum of ten thousand two hundred nineteen dollars and fifty-six cents ($10,219.56); to Attorney David Weir, the sum of two thousand five hundred fifty-four dollars and eighty-nine cents ($2,554.89); and to Group Health Co-Operative the sum of five thousand seven hundred fifty dollars and ninety-seven cents ($5,750.97). Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed. Within 30 days, respondent shall pay as compensation to Barbara L. Shore, the sum of ten thousand two hundred nineteen dollars and fifty-six cents ($10,219.56); to Attorney David Weir, the sum of two thousand five hundred fifty-four dollars and eighty-nine cents ($2,554.89); and to Group Health Co-Operative the sum of five thousand seven hundred fifty dollars and ninety-seven cents ($5,750.97). Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed
May 24, 2012
shoreba : 150 : ND6 6 3.9; 3.12
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
Respondent petitioned the ALJ's decision arguing that the applicant deviated in such a manner as to remove her from the personal comfort doctrine. The commission disagrees. The Worker's Compensation Act must be liberally construed in favor of including all services that can in any sense be said to reasonably come within it. Severson v. Industrial Commission, 194 Wis. 489, 494 (1936).
Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or unless, in some jurisdictions, the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment.
American Motors Corp. v. Industrial Comm., 1 Wis.2d 261 (1957) at 265, (quoting Professor Arthur Larson, 1 Law of Workmen's Compensation, p. 297, sec. 21.00). An impulsive, momentary, and insubstantial deviation will not bar recovery. Nigbor v. DILHR, 120 Wis. 2d 375, 384 (1984). Also, in Thomas G. Patek v. Ameriquip Corp., WC claim no. 95-025941 (LIRC Sept. 4, 1997) the commission found that an employee's impulsive actions constituted a momentary deviation from his normal work duties but were not "so unreasonable or unexpected to take his actions out of the course of employment."
The commission agrees with the ALJ that the employee's actions of checking her roof briefly to determine whether any damage was present was a momentary, insubstantial deviation and she was in the course of her employment at the time of injury.
cc:
Attorney R. Duane Harlow
Attorney David Weir
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