STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
MELVIN SMITH, Applicant
WILLOWGLEN ACADEMY INC, Employer
FIREMANS FUND INS CO OF WISCONSIN, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1991000058
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on April 9, 1998. Respondents submitted an answer to the petition and briefs were submitted by the parties.
At issue are whether the applicant sustained an injury arising out of and in the course of his employment with the employer, and if so, nature and extent of disability and liability for medical expense.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Order. The commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant was employed as a childcare counselor for the employer, a childcare facility. On December 6, 1990, he was working on the second shift with two other counselors and 13 youths. The three counselors decided to chip in and buy Kentucky Fried Chicken for everyone, and the applicant was authorized to take the employer's vehicle to go get the food. He was also supposed to buy treats to be given out to the youths at a bingo game after dinner. The applicant did not have any money with him and he asked the supervising counselor, William Brazelton, whether he could go to his credit union while he was out. Brazelton told him not to go to the credit union, but to just buy the chicken at a KFC about seven blocks from the employer's building.
The applicant disregarded Brazelton's direction not to go to the credit union. He wanted to obtain money from it to chip in for his share of the chicken purchase. The applicant's credit union is located at 92nd and Burleigh in Milwaukee, and at the intersection of Lisbon and Burleigh, he was involved in an automobile accident. This resulted in an injury to his back, but two of the employer's youth residents who were in the car with the applicant were uninjured. The applicant was subsequently discharged for attempting to drive the car to the credit union against his supervisor's orders, for negligent driving, and for failing to require his two youth passengers to wear seat belts.
At the time the automobile accident occurred, the applicant was performing services growing out of and incidental to his employment with the employer (see Wis. Stat. § 102.03(1)(c)). His supervisor had authorized him to take the employer's vehicle and purchase chicken and treats for the children and the staff. His supervisor had also instructed him not to go to the credit union, where he wanted to obtain his share of money for the chicken, but this fact does not defeat the applicant's claim under Wisconsin law. In Wisconsin, recovery of worker's compensation does not depend on an employe acting within the scope of his employment, but on whether he/she was performing services growing out of and incidental to that employment. Grant County Service Bureau, Inc. v. Industrial Commission, 25 Wis. 2d 579, 583, 131 N.W.2d. 293 (1964); Butler v. Industrial Commission, 265 Wis. 380, 386, 61 N.W.2d. 490 (1953). The applicant's intent in going to the credit union was to obtain money to help pay for the children's and counselors' dinner, which was an intention in furtherance of the employer's interests. The fact that in so doing he was disobeying his supervisor's orders does not change the fact that he was performing a service growing out of and incidental to his employment, and does not defeat recovery of worker's compensation. Grant County Service Bureau, Inc. v. Industrial Commission, 25 Wis. 2d at 584; Butler v. Industrial Commission, 265 Wis. at 386-87. (1)
In addition, the applicant was a traveling employe at the time of the accident, pursuant to Wis. Stat. § 102.03(1)(f). Under that statute he is presumed to be performing services growing out of and incidental to his employment at all times, except when engaged in a deviation for a private or personal purpose. Once again, the applicant's purpose in going to the credit union was to pay his share of the dinner costs, which was in furtherance of the employer's interests rather than his own.
As a result of the work injury the applicant sustained a herniated disc at L4-5, resulting in a hemi-laminectomy being performed at that level by Dr. D. Yoder on December 17, 1991. Respondents' physician, Dr. William McDevitt, opined that the applicant had a preexisting spondylolisthesis at L5-S1, which was not aggravated by the work injury of December 6, 1990. However, he assessed five percent permanent partial disability to the work- related laminectomy at L4-5. Dr. Yoder noted that the applicant's Achilles and plantar reflexes are absent bilaterally, and that the applicant has not had a good symptomatic result from the laminectomy. Dr. Yoder's opinions, including his assessment of 10 percent permanent partial disability to the work injury and resultant surgery, are accepted as credible. The applicant has also been diagnosed with depression, but no medical opinion causally linked that depression to the work injury, and therefore his depression is found not to be a compensable consequence of the work injury.
The applicant's 10 percent permanent functional disability entitles him to 100 weeks of compensation at the applicable rate of $131 per week for a total of $13,100. From this amount applicant's attorney is entitled to a 20 percent fee plus $1,134.89 in costs.
Temporary total disability was paid, under asserted mistake of fact, for periods ending March 16, 1992. That disability was properly paid and no additional temporary disability, up to the date of hearing, has been claimed.
Jurisdiction will be reserved with respect to the issues of additional disability, including loss of earning capacity, and/or additional medical expense.
The applicant submitted three medical claims. The first is from Capitol Rehabilitation Clinic for $2,000, representing work hardening and other therapeutic treatment received in 1991, prior to the applicant's surgery. This represents reasonably required medical treatment and the claim will be ordered paid. The second claim is from Medical Rehabilitation Associates for $7, supported by numerous invoices dated from 1994 through 1997, with no specification of what the $7 claim represents. Accordingly, this claim is denied. The third claim is from St. Joseph's Hospital in Milwaukee for $325, supported by numerous invoices dated from 1993 through 1997, with no specification of what the $325 claim represents. Accordingly, this claim is also denied.
NOW, THEREFORE, this
INTERLOCUTORY ORDER
The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, respondents shall pay to the applicant the sum of Nine thousand three hundred forty-five dollars and eleven cents ($9,345.11); and to the applicant's attorney, Robert Figg, fees in the amount of Two thousand six hundred twenty dollars ($2,620), and costs in the amount of One thousand one hundred thirty-four dollars and eighty-nine cents ($1,134.89).
Jurisdiction is reserved with respect to such further findings and orders as may be warranted.
Dated and mailed: December 16, 1998
smithme.wrr : 185 : 7 ND § 3.10
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
In his consultation with the commission, the administrative law judge indicated that he did not find the applicant to have been a credible witness, and disbelieved his testimony that he was headed for a Sentry grocery store rather than the credit union when the accident occurred. The administrative law judge also indicated that he did not believe the applicant was sent out to obtain chicken and treats for the children, but that the purpose of the trip was solely to obtain chicken for the three counselors.
The commission also disbelieved the applicant's testimony that he was headed for a Sentry store when the accident occurred. As noted in the commission's findings, the credible inference is that he was headed to the credit union to obtain cash to help pay for the chicken.
However, the commission found credible the applicant's testimony that he was authorized to purchase chicken for the resident children as well as for the counselors, and also authorized to purchase treats for the children's after-dinner games. The applicant's testimony in this regard was uncontroverted by any employer witness at the hearing. Mr. Brazelton, whom everyone agrees authorized the trip, was not present to testify. This rendered speculative the administrative law judge's factual inference that the chicken was only to be purchased for the counselors. A hearsay written statement by Brazelton was submitted at respondent's Exhibit 6, and in it Brazelton wrote that the applicant was instructed to go get chicken "for the unit" which is consistent with the applicant's testimony. Furthermore, the commission found it unlikely that the applicant would have taken two of the resident children along with him on the trip, if they were not to share in the chicken dinner.
While the applicant's failure to testify truthfully about his intention to go to the credit union understandably made the administrative law judge skeptical of the applicant's overall credibility, the applicant's testimony that his supervisor instructed him to purchase chicken and treats for the children makes sense in light of all the evidence, and was uncontradicted by any firsthand testimony.
PAMELA I. ANDERSON, COMMISSIONER (Dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employe was not a credible witness. I note that Exhibit 5 indicates that the employe was going to purchase food for the T.U. staff.
The employe testified that "William and Gwen and I decided to chip in to get chicken because we did not want to eat whatever they were serving. I think it was Spanish rice or something... William and Gwen put in their share, and I asked William about going to the credit union and he said no. I had no money. He said I should not go to the credit union... Gwen and William chipped in and there was no money on the unit for this food. It was the counselor's responsibility."
The employe testified "I was told to go to the KFC on 35th and Vliet by William. It was seven blocks away... I knew the use of the company vehicle had to be authorized... There was no discussion with William about going anywhere else. I did not discuss getting money from my wife or redeeming a voucher at Sentry Foods." "I gave a statement six days later. I said I was going to get money from my wife who was in the area. I did not say I was going to get treats at a Sentry."
The employe needed money so he could pay his share of the chicken bill. I disagree with the majority that the record indicates that the employe and his co-workers were going to buy chicken for the children. The children were going to have Spanish rice or whatever meal the counselors did not like. The employe was involved in a personal deviation from his work. Mr. Gutberlet believed that the employe went to get chicken. He did not agree that the employe went to get treats for the children.
For these reasons, I agree with the administrative law judge that the injury did not occur while the employe was performing services for the employer. I would affirm the administrative law judge's decision.
Pamela I. Anderson, Commissioner
cc: ATTORNEY ROBERT A FIGG
EISENBERG WEIGEL CARLSON BLAU REITZ & CLEMENS SC
ATTORNEY RICHARD T MUELLER
MUELLER GOSS & POSSI SC
Appealed to Circuit Court.
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Footnotes:
(1)( Back ) The Courts' holdings in this regard are in keeping with the intended liberal construction of the worker's compensation statutes to accomplish their overall objectives of protecting injured employes and those who depend on such employes for support. Larson v. ILHR Department, 76 Wis. 2d 595, 615, 252 N.W.2d 33 (1977).