MARC T COATES, Applicant
MILWAUKEE TRANSPORT SERVICES INC, Employer
MILWAUKEE TRANSPORT SERVICES INC, 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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed
July 20, 2012
coates . wsd : 101 : 9 ND6 3.8; 3.17; 3.35
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The applicant is a bus driver for the self-insured employer. He injured both knees on March 12, 2010, after signing in for his shift at the employer's bus station and while en route to the street corner where he was to relieve another driver. The ALJ found a compensable injury and awarded disability compensation, including permanent partial disability compensation for each knee at 10 percent compared to loss of the leg at the knee.
On appeal, the employer raises three issues: (1) whether the applicant was in the course of employment, (2) whether his injury is from a noncompensable idiopathic or unexplained fall, and (3) the extent of disability.
a. Course of employment.
The employer contends the applicant was not in the course of employment when he was injured, that is, he was not performing services growing out of and incidental to employment when he was injured.(1) On this point, the employer notes that the applicant never actually reached the point where he was to relieve another bus driver at 3:08 p.m. Although the applicant would have been paid as of 2:52 p.m., that was contingent upon him relieving the other driver at 3:08 p.m. Consequently, even though he had signed in for work at the employer's bus station, the applicant never entered pay status on the date of injury.
On this point, the employer cites Lukitsch v. DILHR and Milwaukee Transport Services, case no. 491-540 (Milwaukee County Cir. Ct. October 21, 1981). Lukitsch involved a bus driver who, after completing his route, took another bus to the street corner where he parked his car. He was injured as he alighted from the bus. The commission found that, at the time of his injury, Mr. Lukitsch was no longer performing services growing out of and incidental to his employment. Lukitsch is consistent with the "coming-and-going" doctrine, under which an employee normally is not covered while he is on his way to or from work. See: Wis. Stat. § 102.03(1)(c).
However, the facts in this case, are quite different. The applicant was not injured after completing his work shift. Rather, he was injured after signing in for work at the employer's bus station and while en route to a driver relief point. He testified credibly that he had been trained to report to the bus station a little early to make sure everything was proceeding normally. Employer's exhibit 4 shows that the applicant in fact signed in at the bus station on the date of injury. After signing in for his shift as required by the employer, he picked up route schedules, checked for detours, and departed the station to relieve another driver. However, the applicant went to the wrong relief point and was injured when he was jogging in an
attempt to get to the correct one on time.
The worker's compensation act does not require that a worker be in "pay status" to be in the course of employment. Under the facts of this case, once the applicant went to the terminal and signed in, and began to travel from the bus operating station to the transfer point, he met the statutory test of "performing services growing out of and incidental to his employment." That is, the applicant was performing services for the employer when he left its station and proceeded to the point where he was to relieve the other bus driver.
The commission has previously held that an employee, even one who is not technically in pay status, may still be performing services growing out of and incidental to their employment. In Pederson v. Industrial Commission, 201 Wis. 599, 602 (1930), the court noted cases which found coverage for employees who had been discharged, but who were injured within a reasonable period of time after the discharge, while picking up their final wages on the premises and at a time chosen for that purpose by the employer. For example, Hackley-Phelps-Bonnell Co. v. Industrial Commission, 165 Wis. 586 (1917), involved a logger who was injured while riding an employer-provided logging train at the direction of his foreman to go from a logging camp to the employer's office to pick up his paycheck before leaving for vacation and was held to be covered. In that case, the court held that "here the employee, as we have pointed out, was still performing a duty imposed upon him by his employer and one necessary to perform before the terms of the contract were mutually satisfied." Hackley-Phelps-Bonnell Co., 165 Wis. at 590.
More recently, the court found a worker to be in the course of employment when he was on the premises of the employer, a temporary help agency, waiting for a job assignment. Powell v. Labor Ready Inc., WC claim no. 2002-006786 (LIRC May 31, 2003), affirmed, Labor Ready and Lumbermen's Mutual v. LIRC and Powell, 2005 WI App 153, 285 Wis. 2d 506, 702 N.W.2d 27. While Labor Ready involved a situation where the employee was injured on the employer's premises, in this case the applicant had reported to work at the employer's bus station. As the ALJ pointed out, upon entering the employer's premises and beginning work, an employee is presumed to be continuing to work as long as he or she is on the employer's premises, absent evidence to the contrary. Tewes v. Industrial Commission, 194 Wis. 489, 494 (1927).
In this case, the applicant was--in the words of the Hackley-Phelps-Bonnell Co. case--performing a duty imposed by the employment. Specifically, upon reporting to the employer's premises, the applicant signed in for work, albeit early but within a reasonable time before his shift formally started. He then left the premises to report to the driver relief point. On this point, the commission notes that the employer's own witness and station operations manager, William Locher, testified that the applicant was required to report to the station at 2:52 p.m. to sign in. (October 11, 2011 transcript, page 121). While the applicant may have gotten there a little bit early to do so, again, that did not take him out of the course of employment, nor did he deviate for a personal purpose(2) by going first to the wrong relief point. In short, the applicant was performing services growing out and incidental to his employment when he was injured, even if he never actually achieved pay status by reaching the relief point on the date of injury.
b. Idiopathic fall.
The employer's next argument is that the applicant was injured in an idiopathic or unexplained fall.(3) The basis for this seems to be that some of the medical reports do not report that the applicant was jogging, but rather that he was walking or walking briskly. From this, the employer argues that the fall was due to a force solely personal to the employee--or else is unexplained--so that he has not shown he sustained an injury arising out of his employment.
The commission cannot agree. The employer states that the medical records are materially inconsistent regarding whether the applicant was lightly jogging, walking briskly, or simply walking. However, the ALJ found, and the commission adopts the finding based on the applicant's credible testimony, that the applicant was jogging when he was injured. Both medical experts found an injury arising out of employment on this history.
Moreover, the report of the respondent's examiner, Dr. Guten, undercuts the assertion that the records are materially inconsistent. Specifically, Dr. Guten reviewed the medical records and stated that the history given to him was consistent with that given to other treating doctors, so he relied on it in stating his diagnosis that the applicant sustained a work-related injury. See exhibit 1, July 9, 2010 report of Guten, page 4, response to interrogatory 1. Whether the applicant was jogging, walking briskly, or walking to the transfer relief point, the most credible medical evidence in this case, again from both the applicant's doctor and Dr. Guten, is that that activity caused his bilateral knee injury.
Viewed as a whole, the record does not support the finding that the applicant was simply standing when his knees gave out and he fell to the ground. Even if the employee were only walking--as opposed to walking briskly or jogging--the fact that walking is a normal everyday activity does not preclude the finding that his injury arose out of his employment. The supreme court has stated:
The fact that the employee had a pre-existing diseased disc which was liable to herniate from even normal work effort as a bricklayer does not relieve the employer from liability. An employer takes an employee 'as is' and if he is suffering from a disease predisposing to breakage and an exertion required by the employment causes the breakage at the moment of exertion, the employer is liable under the act.
Brown v. Industrial Commission, 9 Wis. 2d 555, 570 (1960). Subsequently in Lewellyn v. DILHR, 38 Wis. 2d 43, 58 note 3, 61 (1968), the court further clarified that the work activity required for a compensable injury need only be "usual" or "normal" in the sense of the exertion of nonemployment life, and effort expended need not be unusual or extraordinary.
An idiopathic or unexplained fall is different from a situation where an everyday activity performed at work causes injury to a worker. Because the applicant injured his knee due to the activity of ambulating while working--which is the opinion of both parties' medical experts in this case--he sustained a work-related injury even though ambulating is a normal activity.
c. Extent of disability.
The last issue is the extent of disability. The applicant's doctor, Dr. Kohli, rated disability at ten percent bilaterally while Dr. Guten rated it at five percent bilaterally. The commission carefully considered the respondent's argument that Dr. Kohli rated ten percent based, in part, on the potential for arthritis. The commission reads Dr. Kohli's opinion to be that the applicant has sustained an injury that has weakened his knees and made them susceptible to arthritis and further disability. In other words, Dr. Kohli is describing the nature and extent of the applicant's current disability caused by the work injury. The commission does not read his disability estimate to include disability that has not yet arisen but might in the future.
Stated directly, the commission does not believe Dr. Kohli meant to say that the applicant now only has a five percent disability but may eventually have ten percent disability. Further, in his initial report, Dr. Guten stated that permanent partial disability would be in the range of five to ten percent. On this basis, the commission believes, like the ALJ, that the bilateral ten percent rating offered by Dr. Kohli is the most reasonable.
cc:
Attorney Israel Ramon
Attorney Michael Mesirow
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