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

ALEXANDRIA DOERING, Applicant

KERSTEN A SCHMELZER, Applicant

SCHOOL DISTRICT OF RHINELANDER, Employer

WAUSAU UNDERWRITERS INS, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 94001890, 93035318

The administrative law judge issued her Findings of Fact and Interlocutory Order in this case on September 29, 1995, following hearings on May 16 and August 16, 1995. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's Findings and Order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $667.03 for Ms. Doering, an average weekly wage of $444.04 for Ms. Schmelzer, and that the applicants were injured in an accident occurring on September 1, 1992. In addition, the respondent conceded that both applicants were temporarily and totally disabled from the date of the accident to the date of the first hearing in this case.

The primary issue in this case is whether the accident causing the applicants' injuries occurred while the applicants were performing services growing out of and incidental to their employment with the employer. If a compensable injury is established, liability for medical expenses would also be at issue.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission hereby reverses the administrative law judge's Findings of Fact and Interlocutory Order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicants, Alexandria Doering and Kersten Schmelzer, were both elementary school teachers employed by the Rhinelander School District. They had been assigned to a more rural elementary school, Cassion-Woodboro, approximately 14 miles from the city of Rhinelander. As a rural school, Cassion-Woodboro is located off County Trunk K, which contains various hills and curves. Some teachers felt County Trunk K might be more difficult to drive at night or under slippery weather conditions than the roads leading to the schools located within the city proper.

Both applicants appeared at the school on September 1, 1992, which was an in-service day for teachers to prepare their classrooms and generally get ready for the next day which was the first day of school. The normal working hours were 7:45 a.m. to 3:45 p.m. Doering had been transferred to Cassion-Woodboro quite late in the summer and had never taught at that particular school before. When Doering arrived at the school with a vanload of class materials and educational aids, she discovered that her classroom had been emptied of all furniture and was being newly carpeted. The principal, Erik Larson, was informed sometime during the day that the furniture and materials for Doering's room could not be moved into the room until 6 p.m. that evening when the carpeting floor adhesive would be sufficiently dry.

Although Principal Larson did not order Doering to make an extra trip to return in the evening to put her room back together and the school janitor was expecting to return at 4:30 a.m. to put the furniture back into the room, Principal Larson assumed that Doering and Schmelzer would return that evening to set-up Doering's room. He testified that good elementary teachers have a certain way in which they want their rooms arranged to facilitate learning. According to Principal Larson, there was some urgency in getting the room in shape to greet students for their first day on the next day and that the circumstances required Doering to make a special trip to her room after 6 p.m. to get it set up properly.

Principal Larson and other witnesses testified that there was no way one person could have hauled all the furniture and school supplies back into the room and properly set it up without help. They testified that no conscientious teacher could take the chance of not having the room properly set-up by the janitor in the morning. Principal Larson was so concerned that he volunteered to return with his family that evening to assist Doering with the set-up. In Mr. Larson's view, part of a teacher's duties is to make sure she is ready to receive the students the first day of school, and the last-minute carpeting job complicated Doering's preparations.

While at the school during the in-service day, around noon, the assistant janitor offered to put the furniture and things back in the classroom. Doering and Schmelzer declined his offer. They said no because they wanted to put the furniture back in themselves the way Doering wanted it. According to the assistant janitor, Bonnie Wittrock, Doering and Schmelzer indicated that they were coming back together to put the room back together.

Although Principal Larson himself had no independent recollection of calling the school, his wife, Kathy Larson, indicated that she recalled her husband calling the school in the early evening to ascertain whether the two teachers were there and whether the family should come to help them move the furniture and supplies. Upon receiving an affirmative response, Principal Larson and his family arrived around 8:30 p.m. He stated that "the five of us" (his family, Doering and Schmelzer) were moving things into the classroom with Doering primarily directing where she wanted things placed. Principal Larson believed that Schmelzer was working on some set-up of her own room when he and his family arrived. He stated that Schmelzer's classroom was ready to go except for last minute teaching materials being picked up.

Principal Larson did not tell the two women to leave or to go home until the task of setting up Doering's room was completed. When the work was completed about 10 p.m., the applicants and the Larsons decided to return home. No one mentioned doing any school work after leaving. Between 10 and 10:35 p.m., Principal Larson called the janitor and informed him that he would not have to move the furniture back in the morning because Doering, Schmelzer and the Larson family had already done so.

Upon leaving the school, the Larsons drove their own personal vehicle and were following Schmelzer and Doering in Doering's personal vehicle. Schmelzer and Doering exited the school parking lot before the Larsons, turned and proceeded east on County Trunk Highway K. As Doering's vehicle approached the intersection of Harshaw Road, Old County K and County Trunk K, a truck came through the stop sign without stopping from the south heading to the north into the path of Doering's vehicle going approximately 45-50 miles per hour. The right front corner of Doering's car was struck by the left front and side of the pickup.

In Principal Larson's view, the accident happened so fast that Doering had little or no time to react and could have done nothing to avoid the accident. Both Doering and Schmelzer sustained multiple severe injuries as a result of the motor vehicle accident. Doering was driving her private vehicle and the district was not paying her mileage for travel at the time of the accident.

The primary issue is whether the applicants were, at the time of their injury, performing service arising out of and incidental to their employment with the employer. The general rule is that an employe going to or from work is not in the course of employment while off the premises of the employer, and so not covered under Wisconsin's worker's compensation law. Krause v. Western Casualty & Surety Co., 3 Wis. 2d 61, 68 (1958). The court in Krause reached this result by reading sec. 102.03 (1)(c), Stats., to limit coverage to those situations where an employe is actually on the employer's premises. The "coming and going" rule discussed by the Krause court remains the law in Wisconsin, Doering v. LIRC, 187 Wis. 2d 472, 479 (Ct. App. 1994), but it is subject to exceptions. See for example Krause, at 3 Wis. 2d 70, and Doering, supra.

However, Wisconsin law does not recognize an exception that covers the applicants' situation. The closest case on the facts which squarely addresses the legal issue is Elkhorn v. Industrial Commission, 251 Wis. 497 (1947). In that case, the supreme court held that a worker who completed an emergency overtime assignment, and who was injured off the employer's premises on his way home, was not performing services arising out of and incidental to his employment when injured.

As discussed in the memorandum opinion attached to this decision, the commission cannot conclude that Elkhorn has been over-ruled by subsequent cases, including those cited by the parties in this case. Consequently, the applications in this case must be dismissed.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The Findings of Fact and Order of the administrative law judge are reversed. The applications are dismissed.

Dated and mailed April 4, 1996
doerial.wrr : 101 : 8 ND § 3.17

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not confer about witness credibility and demeanor with the administrative law judge who presided at the hearing. A conference was not necessary since witness credibility and demeanor were not at issue, and this case posed entirely a question of law. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). Indeed, the respondent stated in its petition for review that it substantially agreed with the administrative law judge's Findings of Fact. The commission therefore incorporated the administrative law judge's Findings of Fact into its decision with only minor modifications.

The legal issue in this case is whether the accident causing the applicants' injuries occurred while they were performing service growing out of and incidental to their employment. As stated above, subject to certain exceptions, an employe going to or from work is not in the course of employment while off the premises of the employer, and so commuting injuries are not generally covered under Wisconsin worker's compensation law. Krause v. Western Casualty & Surety Co., 3 Wis. 2d 61, 68 (1958) and Doering v. LIRC, 187 Wis. 2d 472, 479 (Ct. App., 1994).

In his treatise, noted commentator Professor Arthur Larson recognizes an exception that would seem to fit the facts in this case. Specifically, the professor writes:

"If . . . overtime work extended so far into the night as to transform the journey home into a substantially more inconvenient or hazardous trip, a case might be made out for invoking the special errand rule. By the same token, when a worker who normally started work at 8:00 a.m. was directed by his employer to appear at 4:00 a.m. to help clear a storage place in order to allow the day shift to operate a machine, the Oklahoma court quite properly awarded compensation for an accident on the way to work at 3:30 a.m. The added onerousness of this trip is obvious. . .

"If the overtime work involves a special and extraordinary trip for the benefit of the employer, it has several times been held that the trip becomes part of the service. A good example is that of a bookkeeper, who normally worked five days a week, but who was asked to come to the office for about an hour on Saturday morning to get out certain records and go over them with an accountant who was preparing an income tax report. Her husband drove her to the shop, waited for her in the car, and then drove her home. After she left the car, she crossed the public sidewalk and, about half-way between the sidewalk and her house, on premises owned by her and her husband, she slipped and fell. Compensation was based squarely on the special errand rule."

1 Larson Workmen's Compensation Law, section 16.14 (1995).

These specific remarks of Professor Larson are entitled to more consideration than normal because, as the applicants point out, the second paragraph was quoted with apparent approval by the supreme court in Horvath v. Industrial Commission, 26 Wis. 2d 253, 260 (1965). Indeed, the Horvath case has led two other careful commentators to state:

"A trip to or from work, which would ordinarily not be within the course of employment as a commuting trip, is covered if it is a special or overtime trip for the benefit of the employer."

Neal and Danas, Worker's Compensation Handbook, sec. 3.24 (3d ed., 1990).

However, the Horvath case did not involve the precise facts here: commuting home from work following a special or overtime assignment. Ms. Horvath was a teacher, and as part of her job was advising the Future Homemakers Association. On the day of injury, Ms. Horvath and some students had set-up for a banquet for a Future Homemakers function to be held that evening. Ms. Horvath was also required to attend the evening function. Because neither the school nor the banquet site had acceptable facilities, she drove to her home to clean up and change her clothes for the banquet. She was injured in an accident on the way to her home.

The department examiner allowed compensation, but the industrial commission reversed and denied, holding that Ms. Horvath was simply going home at the time of her injury. The circuit court reversed the commission, and allowed compensation. The circuit court judge reasoned that Ms. Horvath was making a special trip to clean and bathe for the direct benefit of her employer; that there was no interruption in the continuity of her service for the employer; and that at no time did she leave her employment or deviate from it for any private or personal activity. Horvath, at 26 Wis. 2d 259-60.

The supreme court affirmed the circuit court judge, describing his memorandum opinion as well-considered and quoting it length in its decision. The supreme court went on to say:

"We only want to add by way of emphasis the distinction between the facts of this case and the ordinary uncompensable act of `going to and coming from work.' Miss Horvath was not going to her home because her day's work was done. Presumably she would make that trip after the banquet and ceremonies were completed. Nor was she going home for personal or private reasons on a `split shift,' such as an occasion where her evening duties did not reasonably require special attire." [Emphasis added.]

Horvath, at 26 Wis. 2d 262.

One may fairly infer from the material quoted above that the supreme court would have reached a different result had Ms. Horvath been injured on her way home from the banquet. At that point her day's work would have been done. Thus, even though she had attended the banquet as a special assignment that evening, her return home would have been a simple commuting trip, rather than continuing employment, and would not have been covered.

In emphasizing that Ms. Horvath's work day was not done at the time of the injury, Horvath reflects an earlier holding of the supreme court in Elkhorn v. Industrial Commission, 251 Wis. 497 (1947). In Elkhorn, worker Mitchell was employed by the City of Elkhorn street department and was subject to call by the employer at irregular times in the case of emergency. On the date of his injury, a severe rainstorm had struck, and Mitchell was called into work after his normal hours to check storm sewers. He was taken to his place of employment by this son, and he toured various potential trouble spots with his foreman in a car his foreman had borrowed. The last potential trouble stop was the corner of Church and Jefferson streets, 120 feet from Mitchell's home. After completing their inspection, the foreman drove a little further and let Mitchell out of the car across from Mitchell's house. Mitchell was apparently injured between that point and his home.

The industrial commission found that Mr. Mitchell had sustained a compensable injury and awarded benefits. The circuit court affirmed, stating:

"[Mitchell] was on a special errand and he was at work from the moment he embarked on the trip to the first sewer until he reached his destination (home) from the last sewer. He was not injured going to or from work. He was injured, we repeat, at work."

Elkhorn, at 251 Wis. 497.

The supreme court reversed, however, and denied Mitchell compensation. The court first noted that the foreman's transporting of Mitchell was a mere gratuity, thus taking the case out of the "paid trip" category. It then cited the section of the statutes providing that an injury occurring on the employer's premises while coming to or going from employment was compensable. The court concluded:

"If any effect at all is to be given to the provision of the statute already quoted, then at the very least, after the claimant left the corner of Church and Jefferson streets, he was not performing any service growing out of or incidental to his employment. The service he was to render the city had been completed and there was nothing further for him to do but go home. After claimant left the corner he was on his way home and not at work."

Elkhorn, at 251 Wis. 500-01.

The only way to distinguish Ms. Doering and Schmelzer's case from Elkhorn is that Doering and Schmelzer were actually returning home from the employer's premises, while Mitchell was returning from a remote location. However, the fact that Mitchell was returning home from an off-premises assignment would, if anything, seem to enhance the case for compensation under Professor Larson's rule. See, for example, 1 Larson, at sec. 16.11. In short, in both Horvath and Elkhorn, the supreme court has indicated that, even where overtime or special assignments are involved, the return trip home is still off-duty commuting and not covered.

A similar result, involving an accident on the way to an asserted special or overtime assignment, was reached in Githens v. Industrial Commission, 220 Wis. 658, 265 N.W. 662 (1936). In that case, Mr. Githens was conducting inspection work off premises for the employer, went home to eat supper about 6:30 p.m., and was injured on the way to a 7:15 p.m. appointment at the employer's office. The court concluded that Githens was not covered, citing the general rule that commuting trips are not covered. The court also noted that cases from other jurisdictions covering comings and goings are not necessarily persuasive because sec. 102.03 (1)(c), Stats., narrowly limits the circumstances when commuting trips are covered. Id., at 265 N.W. 664.

More recently, however, the supreme court indicated it might decide this issue differently. In Schwab v. ILHR Department, 40 Wis. 2d 686 (1968), Mr. Schwab was killed while driving home from a "supervisory get-together." The industrial commission concluded that Schwab was not rendering services at the supervisory get-together, and denied compensation. The supreme court affirmed.

In its decision in Schwab, the supreme court noted the Horvath case, and stated:

"[I]n Horvath the facts were clearly different in that the injured school-teacher was accidentally injured while driving to a special, required, overtime work assignment. Larson states:

`If the overtime work involves a special and extraordinary trip for the benefit of the employer, it has several times been held that the trip becomes part of the services.'"

Schwab at 40 Wis. 2d 694.

The supreme court concluded that the Larson statement did not apply in Schwab because Mr. Schwab was not working overtime. Id. Assuming the court meant the entire get-together (rather than simply the trip home) was not work, the citation to Horvath and Larson in Schwab could be read to mean the court might now be inclined to pay compensation for injuries during "coming and going trips," contrary to Elkhorn, where the trip is the result of a special or overtime assignment. (1)

Consequently, the commission is faced with two choices. It may reverse the ALJ's decision and deny compensation to Ms. Doering and Ms. Schmelzer based on relatively old precedent in Elkhorn to the effect that the performance of service ends before the trip home, even in cases of special or overtime assignments. Or it may affirm the ALJ's decision, inferring from obiter dicta in the relatively recent Schwab case that the court has reconsidered its position and would now reach the result proposed by Professor Larson.

The Horvath case, as discussed above, cuts both ways. On the one hand the supreme court reiterated the circuit court's quotation of Professor Larson's position. On the other hand, the court went on to emphasize that Ms. Horvath's injury did not occur on the trip home at the end of her day's work (as would have been the case had she been injured on the way home from the Future Homemakers function later that evening.)

Under these circumstances, the commission must follow the more certain precedent of the Elkhorn case. In doing so, the commission notes, as did the supreme court in Githens, that cases from other jurisdictions, including those relied upon by Professor Larson, are not necessarily persuasive because of the specific Wisconsin statutory language in sec. 102.03 (1)(c), Stats.

cc: ATTORNEY TIMOTHY J YANACHECK
STILP & COTTON

ATTORNEY JAMES A JOHNSON
JOHNSON HOULIHAN PAULSON & PRIEBE SC

ATTORNEY CURTIS M KIRKHUFF
PELLINO ROSEN MOWRIS & KIRKHUFF SC

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Footnotes:

(1)( Back ) The commission also considered three other cases referred to by the parties in this case. In Fruit Boat Market v. Industrial Commission, 264 Wis. 304 (1952), the applicant set out from home during evening hours to perform work-related research at a public library and then go to the employer's premises to pick up a lease to review before negotiations the following day. After completing the research, he was injured while alighting from a street car in the vicinity the employer's premises when he was injured. Id., at 264 Wis. 308-09. While the court held the applicant was performing services during this "off-premises journey," Id., at 311-12, the case did not involve an injury on a trip home as is the case here. In Makal v. Industrial Commission, 262 Wis. 215 (1952), the applicant was injured on his way to a company garage to pick up a company vehicle to begin his normal work day. He asserted he was making a "special trip." The court treated this as a straight commuting case, and denied compensation, since the garage was the first place the applicant reported to work. In Bitker Cloak and Suit Co. v. Industrial Commission, 241 Wis. 653 (1942), the employer instructed its sales clerk, Miss Miller, to call on a customer on her way to work. She was injured between her home and the customer's premises, and while her route still coincided with the route she would normally take to the employer's premises. The court allowed compensation on the grounds that the entire trip was travel to outside work required by the employer before reporting to the employer's premises. The court believed it would be arbitrary to conclude that the employment-required travel did not begin until after she passed the employer's place of business. The court concluded Miss Miller's situation was similar to that of a traveling salesperson, whose "day's work" begins as soon as she leaves home for her first sales call. The fact that Ms. Miller was performing a sales call when she was injured distinguishes this case from Bitker Cloak.