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

JAMES WILLIAMS, Applicant

JOHNSON CONTROLS INC, Employer

JOHNSON CONTROLS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96013020

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant began work for the employer in 1985. Applicant worked at the employer's Keefe Avenue plant in Milwaukee. Initially he worked in the glove room, washing towels, replenishing supplies, cleaning respirators, etc. On or about January 2, 1996, he was transferred to a battery assembly line off-loading batteries weighting between 30 to 60 pounds.

Applicant first met Gregory Love in October of 1995 when applicant was working in the glove room. He would sit at a table in the cafeteria with Love and others making shop talk. He did not know Love prior to working at Johnson Controls.

The applicant's girlfriend, Jackie Patterson, drove applicant to work in her car because his car was broken down. Ms. Patterson's car had been stolen and the steering column was damaged. Ms. Patterson had a for sale sign in her car. One day Ms. Patterson gave Love a ride home because Love lived by her. Applicant was in the car at the time. Love asked Ms. Patterson about buying the car, how much she wanted for it. The applicant did not handle any money involved in the purchase, was not present when Love bought Ms. Patterson's car, and had no part in the sale.

Ms. Patterson sold the car to Love on January 2, 1996, for $650, with a balance due of $150.00. About three days after Love purchased the car, he approached the applicant and said that he had lost his license due to some drunk driving incidents and wanted his money back. The applicant told Love to talk to the person who he bought the car from, Ms. Patterson. Later, passing by, Love asked applicant if he had told Ms. Patterson what Love said. Applicant replied that he had told her and that Love should speak to Ms. Patterson personally.

Applicant arrived for work on January 15, 1996, at approximately 10:00 p.m., for his 11:00 p.m. shift. He and another worker, Patricia Brzezinski were let into the employe parking lot by another worker Gloria Killins. He noticed two guys by the guard shack and he thought they were new employes. He parked in the employe parking lot, took his radio out, and put it in the trunk. There is a guard booth at the entrance of the lot but no guard is on duty. The applicant began to walk towards the employer's building. Three female co-workers, Gloria Killins, Patricia Brzezinski, and Bernice Gamble, were also proceeding to the employer's plant. As the applicant left the lot by a pedestrian gate the men called out to him. Gregory Love's son asked the applicant what the applicant was going to do about Gregory Love's money. The applicant replied that he did not sell the car to Gregory Love and the son should confront the individual who Gregory Love bought the car from.

The applicant continued to walk and Gregory Love Jr. grabbed at his arm. The "bigger guy" extended his arms to block the applicant's path. The applicant walked around him and Gregory Love Jr. grabbed the bottom of applicant's coat. Applicant proceeded. Gregory Love Jr. said that his "pops wants his money" and the applicant replied that he had nothing to do with the sale of the car.

Applicant got to the door of the employe entrance to Johnson Controls and had his hand on the doorknob trying to pull. Two co-workers, Pat and Bernice, squeezed through the door The bigger guy stood in front of the door with his leg out, arms extended. Gregory Love Jr. hit applicant in the back of the head with a pipe, and then in the eye. Applicant and the two other men fell into the plant. The security guard, Mr. Schroeder, who was in the guard office a few feet from the entrance, intervened and told Gregory Love Jr. and the other man to leave. They did so.

The neighborhood in which the employer's plant is located is average in terms of safety. There has been to the employer's and workers' knowledge, only one mugging in the immediate vicinity of the employer's plant in the last five or six years. The walk from the hourly employe parking lot to the employer's plant, a distance of about 263 feet, is well lit. The employer utilizes security guards to prevent property loss and make sure gates are closed, not to act as body guards or to prevent assaults.

The hourly employe lot is enclosed by a fence with barbed wire on top. The gate to the hourly lot is controlled by a key card. There is a guard shack at the entrance of the hourly lot. The guard shack is 18 feet from the pedestrian gate. A guard was stationed in the shack from 4:00 p.m. to 8:00 p.m. and from 3:00 a.m. to 7:00 a.m. There is a camera covering the hourly lot but it hasn't functioned for two or two and one-half years. When the camera for the hourly lot was working the guard shack would be on the periphery of the camera's image. The employer did not have the camera covering the hourly lot fixed for monetary reasons. Fixing the camera was not a priority because the employer had never had a car stolen, or any other problems in the lot. The camera was left for its deterrent effect. There was no camera covering the sidewalk between the hourly lot and the plant entrance. There was no camera, operative or inoperative, that would show the area in front of the employer's building.

The salaried workers' lot is directly across the street from the plant and has an operating surveillance camera. Another operating camera covers an alleyway between the employer's plant and the Turner Box Company, which gives a line of sight into the employer's yard where it keeps material. There is another operating camera around the back of the employer's building where the loading dock and transformer are located. The purpose of the camera is to prevent property loss.

Applicant sustained a fracture over his left eye, a two-inch laceration on his head, pulled muscles in his neck, upper shoulder and back injuries and abrasions to his knees and hands. Applicant treated with Dr. Jordan Mandel, for post-traumatic headaches; cervical strain; right shoulder strain; right knee contusion; jaw pain; multiple contusions and abrasions; lacerations including head and extremities; and fracture of the orbital bone of his left eye.

The issue in this case is whether the injuries the applicant sustained when he was assaulted on his way to work "arose out of his employment."

Wisconsin Statutes § 102.03 sets forth conditions which must be satisfied for liability to exist against an employer. One condition is that the accident or disease causing injury "arose out of the employe's employment." Wis. Stat. § 102.03(1)(e). One way an injury can be found to "arise out of the employe's employment" is through application of the "positional risk doctrine." This doctrine was explained by the court in Cutler- Hammer v. Industrial Commission, 5 Wis. 2d 247, 253-54 (1958), as follows:

"The `positional risk' interpretation has been phrased in various ways. The core of the idea is that an accident arises out of the employment when the connection between the employment and the accident is such that the obligation or circumstances of the employment places the employee in the particular place at the particular time when he is injured by a force which is not solely personal to him.
* * *
"Applying the `positional risk' doctrine it has been said accidents arise out of employment if the conditions or obligations of the employment create a zone of special danger out of which the accident causing injury arose. Stated another way, an accident arises out of employment when by reason of employment the employee is present at a place where he is injured through the agency of a third person, an outside force, or the conditions of the location constituting a zone of special danger. Nash-Kelvinator Corp. v. Industrial Comm.(1954), 266 Wis. 81, 62 N.W.2d 567; American Motors Corp. v. Industrial Comm. (1957), 1 Wis.2d 261, 83 N.W.2d 714."

Often when the positional risk doctrine is applied the conditions or obligations of the employment clearly put the employe in a position where the employe was injured. The question is whether the injury was caused by a force not solely personal to the employe. Consistent with the positional risk doctrine, an assault at work, even though personally motivated, is compensable if the conditions of the employment facilitate the injury. Professor Larson described the general rule as follows:

"Assaults arise out of the employment if either the risk of assault is increased because of the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in the workplace. A few jurisdictions deny compensation if the claimant himself was the aggressor; most reject this defense if the employment, in fact, caused the fight to break out. An increasing number accept the idea that the strain of enforced close contact may, in itself, provide the necessary work connection. Assaults for personal reasons do not arise out of the employment unless, by facilitating an assault which would not otherwise be made, the employment becomes a contributing factor. Assaults by lunatics, drunks and children have generally been found to arise out of the employment and the same has been held by some courts in the case of unexplained or mistaken identity assaults, although there is authority to the contrary."

Larson's Workers' Compensation Law, § 11.00, at 3-200 (1997).

The assault in this case was personally motivated. The applicant was clearly singled out by the assailants. The first thing out of Love Jr.'s mouth "Hey, hey, man. What are you going to do about pop's money," shows that the assailants sought out the applicant specifically in an attempt to retrieve Love Sr.'s money. The contention that the applicant was not actually involved in the transaction does not make this a random act, the act of a mad man, or a case of mistaken identity. The assailants clearly were seeking out the applicant. It does not matter whether the assailants were mistaken in their belief that applicant was involved in the sale of the car. The motive remains personal and unrelated to the applicant's employment. Further, from applicant's testimony he had already told Love Sr. that he wasn't involved and Love Sr. persisted and came back. At the least, even if he was not involved in the initial sale, Love Sr. was looking to him as the boyfriend of the woman he bought the car from, and the assailants were doing the same.

The mere fact that the transaction originated at work, and that the applicant and his girlfriend knew Love Sr. only from work, does not make the assault compensable. Work must do more than bring the participants together. As stated in Larson's:

"Under even the broadest rule, the but-for test, it must be emphasized that the test is not `but for the bare existence of the employment,' but rather `but for the conditions and obligations of the employment.' Surely it would be going too far to say that every assault arises out of the employment if it can be proved that the acquaintance of the parties came about through the employment. If the friction and strain arise not because of the enforced contacts resulting from the duties of the employment, but rather because the two employees, who met each other on the job, choose to enter into a purely private relationship just as they might if they had met elsewhere, and if in the course of the ups and downs of that private relationship a private quarrel develops. the quarrel may well be treated the same as a domestic quarrel brought to the employment."

Larson's Workers' Compensation Law, sec 11.22, at 3-351 (1997). The applicant maintains that obligations of the employment involuntarily exposed the applicant to continuing contact with Love Sr. thus fomenting Love Sr.'s resentment toward the applicant culminating in the attack. The applicant attempts to compare his situation with the assault occurring in Nash-Kelvinator Corp. v. Industrial Comm., 266 Wis. 81 (1954). The commission is unpersuaded. First, the court in Nash-Kelvinator focused on the "mob mentality" existing in Nash-Kelvinator. Second, the employer in Nash-Kelvinator, unlike the present case, was aware of the growing hostility towards the applicant. A mere ongoing employment relationship exposing one worker to another is not sufficient.

The applicant's employment did not contribute to nor exacerbate the assault. The applicant was assaulted while walking from the employe lot to the employer's building. The applicant arrived with other workers, the walk was lit, the neighborhood was average in terms of safety, and there had been only one known assault in the immediate vicinity in the last five years.

Applicant makes much of the fact that the camera covering the hourly employe lot was not functioning and had not functioned for years. However, the testimony established that even had there been a functioning camera it would not have picked up the assault. When the applicant initially began walking toward the plant he was simply talking with the assailants. Physical interaction, consisting of an assailant grabbing applicant's, clothing occurred as applicant was proceeding down the walk. Actual fisticuffs did not occur until the applicant and assailant reached the plant entrance. The evidence was undisputed that if every camera had been operational they would not have picked up the assault. Further, the cameras were not in place to prevent or dissuade assaults. The cameras were there to dissuade property theft. Nor can it be said that the employer should have been attempting to dissuade personal assaults, or had a camera that picks up the walk to the plant, given that there was only one known mugging in the previous five years. For the same reason, there was no reason to have a security guard at the hourly employe lot. Finally, the testimony showed that the prompt response of the security guard once the assault spilled into the building caused the assailant's to flee thus preventing further injury to the applicant.

The motivation behind the assault was personal and not work related. Nothing in the conditions or obligations of the employment facilitated or exacerbated the assault. Nothing about the work environment, including the fact that some cameras did not function, facilitated or exacerbated the assault. For these reasons, the commission concludes that applicant's injuries did not arise out of his employment with the employer.

ORDER

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

Dated and mailed: June 25, 1998
willija . doc : 132 : 1  ND § 3.33

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the administrative law judge. The administrative law judge credited the employe's testimony that he was not involved in the sale of the vehicle. The commission's reversal of the administrative law judge's decision is not based on a differing impression of witness credibility or demeanor but upon reaching a different legal conclusion when applying the law to the facts.

cc: ATTORNEY THOMAS M ROHE
OTJEN VAN ERT STANGLE LIEB & WEIR SC

ATTORNEY KELLETT J KOCH
KOCH & MCCANN S C

Appealed to Circuit Court. Affirmed February 5, 1999.

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