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

LAURIE J MURRAY, Applicant

LA CROSSE VISITING NURSE ASSOCIATION, Employer

VIRGINIA SURETY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93053018

An administrative law judge for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and order in that decision as its own, except for the following modifications:

Delete the sentence which begins on first page of the administrative law judge's decision and ends on the second page of the decision and substitute:

"While the carrier denies the compensability of the applicant's injuries and liability for related medical treatment expense, it also disputes the reasonableness of the medical fees. Both parties agreed to request an interlocutory order on that issue in the event the employer and the carrier are found liable for a compensable injury."

Delete the second paragraph beginning on page 8 of the administrative law judge's decision, and substitute:

"Because the applicant suffered a compensable injury, the employer and carrier are liable for reasonable expenses necessary to cure and relieve the applicant from the effects of the injury. Sections 102.42 (1) and 102.30 (7), Stats. However, at the mutual request of the parties, the order in this case shall be left interlocutory on the issue of the reasonableness of the expenses for the applicant's medical treatment."

ORDER

The findings and order of the administrative law judge, as modified are affirmed.

Dated and mailed August 31, 1995

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

MEMORANDUM OPINION

In this case, there are at least two possible ways to characterize the applicant's status at the time of her automobile accident: (a) she was returning home from a purely personal errand, (b) she was "performing services growing out of and incidental to her employment" either in the normal course of performing her duties for the employer, as a "traveling employe," or as an employe on a "special trip." A third possibility, that the applicant was commuting in the regular routine coming and going to work, does not apply because it is undisputed that the applicant did not normally work at the employer's premises in Whitehall.

The applicant contends, and the ALJ found, that the applicant was, at the time of her injury, performing services growing out of and incidental to her employment. In reaching this conclusion, the ALJ determined that the applicant was either in the normal course of her employment duties, engaged in a special trip, or a traveling employe. The employer contends the applicant was on a purely personal errand at the time of the accident.

In order for an employer to be liable for a work injury under sec. 102.03 (1)(c), Stats., the injured worker must be performing services growing out of and incidental to his or her employment at the time of his or her injury. Generally, this does not include an employe who is commuting to work. However, a special statute applies to a "traveling employe." Section 102.03 (1)(f), Stats., provides:

"102.03(1)(f) Every employe whose employment requires him to travel shall be deemed to be performing service growing out of and incidental to his employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of his employment."

This statute is further explained by the department in one of its footnotes to the worker's compensation statute:

"11 Accident or disease must arise out of a hazard of employment, and accidents and disease not caused by reason of incidents of service are not to be compensated. Injuries, whether accidental or otherwise, must therefore arise out of the business circumstances of the trip and not merely occur because of a personal condition or disability bearing no relation whatsoever to service."

In addition, the Supreme Court has stated:

"It is the rule in this state that an employee whose duty it is to travel on behalf of an employer and to do work away from the premises of the employer and who is not required to report to the premises before starting out to this outside work is performing service as soon as he leaves his home and starts for the first place at which he is to perform such work."

Black River Dairy Products v. ILHR Dept., 58 Wis. 2d 537, 542 (1973). The supreme court has also recognized that a worker who might not seem to fit precisely the "traveling employe" statute is still performing services growing out and incidental to employment while engaged in a special trip off the employer's premises, if the trip is not part of the usual routine of commuting to work at the employer's premises. Horvath v. Industrial Commission, 26 Wis. 2d 253, 258-62 (1964).

No matter how this case is analyzed, the critical question is whether the applicant was summoned to Whitehall. Certain underlying facts on this issue are relatively undisputed. On the day of the alleged work injury (December 17, 1992), the applicant was initially scheduled by the employer to work at the home of a client, Agnes, as a supportive care aide, from 7:30 to 9:30 p.m. However, the employer needed to provide staff to St. Michael's Hospital in Fountain City. Consequently, the employer desired to rearrange the schedule to assign the applicant to St. Michael's Hospital and assign another worker to Agnes. The shift at St. Michael's Hospital was to begin at 4:30 p.m. Exhibit 1.

According to the applicant, she was informed of the schedule change by a coworker, Chris Henderson, who called the applicant at her job at Marinuka Manor. (Ms. Henderson also worked both at Marinuka Manor and for the employer.) The applicant testified in response to a leading question that Ms. Henderson specifically told her to report to the employer's business office in Whitehall.

The applicant also testified that Ms. Henderson told her that Jackson wanted the applicant to work at St. Michael's Hospital and Henderson to take the applicant's assignment with Agnes. Transcript page 17. Later during direct examination, the applicant testified that she would generally drive to Whitehall to get an assignment rather call because she believed supervisor Jackson preferred direct communication, and because it would not have cost much more to just drive to Whitehall than to drive to a pay telephone to call the employer. Transcript, page 20.

Coworker Henderson testified that she received a phone call on December 17 from supervisor Jackson asking her to relay a message to the applicant. According to Henderson, the message was that the applicant was to come Jackson's office in Whitehall to talk with her. Ms. Henderson testified she then relayed that message to the applicant at Marinuka Manor. Transcript, page 58.

Supervisor Jackson could not recall how the employer informed the applicant of her change in assignment on December 17. She conceded she might have contacted coworker Henderson to relay the message to the applicant. However, supervisor Jackson also testified that she could not recall coworker Henderson's name. Supervisor Jackson testified that she could not remember telling Henderson or any one else to report to the employer's office in Whitehall on December 17. However, Jackson did concede that:

"time sheets are due in on the 16th, so I might have been looking for her time sheets also."

Transcript page 79. Ms. Jackson also explained that the time sheets were for the period from the first through the fifteenth, and that some workers dropped them off at the employer's office while others would mail them in.

At any rate, after her shift at Marinuka Manor ended at 2:00 p.m., the applicant changed from "food service blues" to "nursing assistant whites." Transcript, page 23. She then drove to Whitehall.

Considering the direct testimony of the witnesses, particularly Ms. Henderson, the most reasonable conclusion is that the applicant was in fact summoned to Whitehall. However, the employer points out that the applicant admits that she was aware of the change in assignment (and indeed had changed in to her uniform); that she could offer no convincing explanation about why she was summoned to Whitehall; that the applicant indeed seems to suggest it was her own personal choice to go there rather than simply call from a neighbor's home or a pay telephone (as she had done on several previous occasions); and that Ms. Jackson testified she would not ordinarily have required the applicant to come to Whitehall for a change of assignment. The employer ultimately concludes that it simply made no sense, in fact defied credibility, for the employer to have summoned the applicant to Whitehall.

The commission gave a substantial amount of consideration to this argument, which necessarily depends on the conclusion that the applicant and Ms. Henderson misrepresented the facts at the hearing. As part of its consideration, the commission conferred with ALJ Shore. He stated that all the witnesses seemed generally credible, but that Ms. Jackson seemed to have a genuinely poor recall of events and seemed defensive about her December 18 memo on the back of the incident report (see Exhibit 1). He also stated that the applicant seemed to have a cognitive disability and genuinely seemed to have trouble following questioning during cross-examination. He also stated that Ms. Henderson seemed a truthful and neutral witness. He stated that he believed Ms. Henderson accurately describing her relationship with the applicant as friends in the sense of acquainted coworkers, rather than close friends who saw each other socially. On this basis, he concluded that Ms. Henderson had little incentive to lie.

Although the record indicates that it might not have been strictly necessary for the applicant to drive to Whitehall, that does not mean she could not have been summoned. The commission recognizes it is not bound to accept the testimony of the applicant and Ms. Henderson simply because Ms. Jackson did not testify definitely that she did not summon the applicant to Whitehall. However, the lack of direct testimony on that point obviously has some bearing on the commission's view of the evidence. In sum, the apparent inconsistencies in some aspects of the applicant's testimony are not sufficient to lead the commission to disregard her testimony, or that of Ms. Henderson. Nor can the commission conclude that, simply because it might have been unnecessary or unwise for Ms. Jackson to summon the applicant to Whitehall, she did not do so.

Having concluded that the applicant was summoned to Whitehall, before reporting to her assignment in Fountain City, the commission concludes that she would ordinarily be considered to be performing services growing out of or incidental to her employment while en route from Whitehall to Fountain City. On this point, the commission sees little difference whether the applicant is regarded as a "traveling employe" under sec. 102.03 (1)(f), Stats., or as returning from a "special trip" under Horvath, supra. In either case, the fact that the applicant might not have been paid mileage for the trip is not dispositive. Horvath, at 26 Wis. 2d 261. Regardless of whether she was a "traveling employe" or on a "special trip," an injury during the trip is compensable, assuming the applicant was taking a reasonable route and was not engaged in a deviation.

The commission is satisfied that the route the applicant took was reasonable. The shortest route is not always the only reasonable route. In Bergner v. Industrial Commission, 37 Wis. 2d 578, 584 (1968), for example, the supreme court held that while "old" US 141 from Green Bay to Milwaukee was not as direct as WI 57 or as fast or modern as US 41, it was nonetheless a reasonable route.

By the same token, while the US53-WI35 route between Whitehall and Fountain City chosen by the applicant in this case was 19 miles longer than the WI95 route, the commission cannot conclude that the route was either unreasonable, or in and of itself a deviation. The applicant was more familiar with the route, since she lived in Galesville where US53 and WI35 join, and the record permits the inference that the applicant typically traveled WI35 to Fountain City for previous assignments. The administrative law judge also pointed out that December 17 has one of the shortest periods of daylight in the calendar year. Thus, the commission concludes that, as in Bergner, the applicant here did not "drive[] outside the performing of services growing out of and incidental to [her] employment." Bergner, at 37 Wis. 2d 584.

Nor does the fact that the applicant lived in Galesville mean that choosing the route through Galesville made the entire trip a deviation. The supreme court has consistently ruled that coverage resumes when the deviation ends and a traveling worker returns to his normal route. Lager v. ILHR Department, 50 Wis. 2d 651, 661 (1971). Of course, it is possible that the applicant might have deviated from the Whitehall to Fountain City route by leaving US53 or WI35 upon reaching Galesville to visit her children. However, the commission cannot conclude that the possibility of deviating to visit her children in Galesville means that the applicant was on a deviation at the time of the injury while she was traveling on US53.

The parties agreed at the hearing to request an interlocutory order on the issue of the reasonableness of the fees. The commission acknowledges that the department may not be bound by the mutual request. However, the commission notes that both parties request in their briefs to the commission that the administrative law judge's order be amended to remain interlocutory on the issue of the reasonableness of medical expenses. On that basis, the commission amended the administrative law judge's order to leave that issue open.

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

ATTORNEY ROBERT T WARD
SCHIRO & WARD

Appealed to Circuit Court. Affirmed March 15, 1996.

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