STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

TERRY M MARTINI, Applicant

AMERICAN SECURITY CORP, Employer

ZURICH AMERICAN INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2011-025408


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 respondents conceded jurisdictional facts and that the applicant incurred medical expenses of $451 and $483 relating to a traffic accident on November 16, 2008. They have made no payments in this case. At issue in the hearing was whether the applicant suffered an injury by accident arising out of and incidental to employment on or about November 16, 2008. All issues of disability were deferred until there is a determination as to whether or not the applicant was within the course of employment at the time of his injuries. The applicant requested an interlocutory order.

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant worked as a security guard for the respondent employer. He was required to travel throughout much of the state in order to arrive at his various
work sites. During the time he traveled to the sites, he was not reimbursed for mileage or paid for his time.

On November 16, 2008, the applicant was assigned to travel from his home in Stevens Point to a home that was being sold in Marshfield. The employer gave him flyers to distribute at the work site. The customer of the employer to which he was assigned, wished its greeters, before they left for the site, to be properly attired, clean and well-groomed, to call it on the way to the site, and to have 40 copies of the property flyer to take with him. The applicant was provided driving directions by his co-worker. The applicant's direct supervisor was Mr. Bledsoe.

The applicant began his trip to the work site in a timely manner but the directions given to him by his co-worker were inaccurate. He had to ask an area resident for directions to his job site. A deer ran across the applicant's path and he lost control of his vehicle while swerving and breaking to avoid a collision. The accident occurred during the time the applicant was scheduled to be working. Various reports identified the time of the accident between 12:05 and 12:35 p.m.

The employer's operations manager received a call from the client at 12:30 p.m. which informed him that the applicant had not arrived at the auction site. The operations manager called the applicant, who said he was almost at the work site.

The applicant was found by another motorist and emergency personnel responded to the accident. The applicant called the employer's director of operations, not the co-worker who gave him directions, to report that he had been in an accident. The applicant was transported by ambulance to the hospital, sustaining medical expenses of $934.

The respondents argue that the case is controlled by McRae v. Porta Painting, Inc., 2009 WI App. 89, 320 Wis. 2d 178, 769 N.W.2d 74. The commission agrees. McRae was a painter working for a company with its headquarters in Waukesha, Wisconsin, and he would drive from his home to whatever location he had been assigned to for the day. He would occasionally stop by the employer's headquarters to pick up supplies on the way to the job site. McRae drove his personal car and did not receive reimbursement for travel unless the job site was outside a five-county area. He was not paid for his travel time. McRae was driving his personal vehicle home from a job site on January 7, 2005, when he was in an accident and was injured. The commission issued a decision which held that the applicant was not injured while performing services growing out of or incidental to his employment, pointing out that McRae was driving his own vehicle when the accident occurred. He received no reimbursement for the commute which was within the five-county area established in his union contract. There was no business-related purpose to McRae's commute and he was simply going to work. Further, he was not performing a special errand when the accident occurred. The court affirmed the commission's decision, finding that McRae was not performing a work-related errand but was simply commuting to his job site in the usual manner. The court also held that McRae did not meet the exception in the "coming and going" rule. The court indicated that like the typical employee, McRae's employer did not provide transportation, was not reimbursing him for the use of his personal vehicle and was not compensating him for his travel time. The applicant in this case, like McRae, was simply driving to work at the time of his accident.

The applicant was given directions by a friend and co-worker and not the employer. As such, while it could be argued that the applicant would not have been involved in the accident had he not been given incorrect directions, the fact that the applicant took a wrong turn was not the result of any employer behavior. Instead the applicant was given incorrect directions by a friend who also happened to work for the employer.

In the present case, the applicant performed work at varying locations in Wisconsin. The applicant used his personal vehicle to travel to the assigned work site and was not paid for his travel time or reimbursed for mileage. Thus, the applicant was basically a typical commuter.

The applicant argued that the employer controlled his commute in various ways. For example, the applicant argued that he was supposed to be in uniform while driving to the work site and was required to maintain a minimum of $300,000 of insurance on his personal vehicle. Further, the applicant argued that he was unable to speak on his cell phone or carry a firearm. The director of operations persuasively testified that the employer's vehicle policy, which is part of the new hire paperwork, applied to the employer's patrol vehicles or to a personal vehicle which is used in the course of duty. The director of operations testified that it would be a very "weird circumstance" that would result in a worker using his or her personal vehicle to patrol a property.

The employer's policy provides that the insurance requirement for workers "using a personally owned vehicle for business purposes" must carry at least the minimum amount of insurance specified in the policy. The policy further provides that no cell phone use is allowed when a worker is driving a company vehicle. While this might be considered an act of control, the fact that the employee was driving his own car to the work site does not transform a personal commute into the use of his car for business purposes.

The applicant in the present case was driving his own vehicle in order to reach his work location. He was not on a special errand or using his car for business purposes. He was simply commuting to work, using the directions given to him by a friend and co-worker.

Therefore, based on the facts and circumstances of this case, when the applicant was injured, he was not performing service growing out of and incidental to his employment with the employer.

NOW, THEREFORE, this

ORDER

The findings and order of the administrative law judge are reversed. The application is dismissed.

 

Dated and mailed
August 28, 2013
martite_wrr.doc:145:6 ND6 3.24

 

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

 

 

NOTE: The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ indicated that the applicant was not a sophisticated witness and was easily confused. However, the ALJ believed that the witness was attempting to give accurate answers. The commission defers to the ALJ's credibility assessment. While the applicant may have been trying to answer the questions carefully, given the credibility impressions of the ALJ, the commission concluded that the applicant was a truthful, but not very reliable, witness.

 

 

cc: Attorney Sean M. Spencer
Attorney Ronald M. Fitzpatrick


Appealed to circuit court.

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