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

CLARENCE TALBERT, Applicant

MADISON TAXI, Employer

UNITED STATES FIRE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998026024

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on October 15, 1998. Respondents submitted an answer and briefs were submitted by the parties. At issue is whether on February 8, 1998, the applicant sustained an injury arising out of and in the course of his employment with the employer. Should a compensable injury be found, then nature and extent of disability and liability for medical expense would also be at issue. Also at issue before the commission is the applicant's motion to submit allegedly newly discovered evidence.

The commission has carefully reviewed the entire record in this matter and hereby sets aside the administrative law judge's FINDING OF FACT and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is July 27, 1954, was employed as a taxi driver for the employer. His twelve-hour shift was scheduled to end at 9 a.m. the morning of February 8, 1998, but by 6 a.m. that morning he felt that he had made enough money for one shift, so he asked the dispatcher if he could leave. The dispatcher indicated that would be okay.

The applicant did not own a vehicle of his own and normally took one of the employer's cabs home from work. On February 8, 1998, a co-worker, who was on duty, explained to the applicant that she had driven her mother's car to work and needed to get that car to her mother's house by 7 a.m. The co-worker and the applicant asked the dispatcher if the applicant could follow the co-worker to her mother's house, with the applicant driving the co-worker's cab and the co-worker driving her mother's car. The plan was for the co-worker to drop off the car at her mother's house, and then take the cab from the applicant and drive him to his home, which was only about two blocks from the mother's house. The dispatcher agreed to this arrangement. While the applicant was driving the co-worker's cab and following her to her mother's house, the cab skidded on some ice and an accident resulted in which the applicant was injured.

At the time of the accident the applicant was not receiving any wages from the employer, but the employer does have a policy of allowing a 25 percent discount to its employes who accept a ride to or from work in one of its taxis. The applicant paid the worker $9 for the "ride" on February 8, 1998.

The typical trip to or from work is not covered by Wisconsin's Worker's Compensation Act. See Wis. Stat. § 102.03(1)(c) and Brown v. Industrial Comm., 236 Wis. 569, 571, 295 N.W.2d 695 (1941). Wisconsin adheres to the "part-of-service" exception to this rule, summarized in Arthur Larson, Larson's Worker's Compensation Law (1995):

"The rule excluding off-premises injuries during the journey to and from work does not apply if the making of that journey, or the special degree of inconvenience or urgency under which it is made, whether or not separately compensated for, is in itself a substantial part of the service for which the worker is employed." Larson at § 16.00

Wisconsin also adheres to the "employer's conveyance" exception to the coming- and-going rule:

"If the trip to and from work is made in a truck, bus, van, car, or other vehicle under the control of the employer, an injury during that trip is incurred in the course of employment." Larson at § 17.11

Neither of these exceptions applies in the applicant's case. The most common instance of the "part-of-service" exception is the special errand rule, which provides coverage when the errand on which the employe is injured may be viewed as an integral part of the service to the employer. See Fruit Boat Market v. Industrial Comm., 264 Wis. 304, 58 N.W.2d 689 (1953). However, the applicant was not performing any substantial service for the employer. Rather, he was doing a favor for a co-worker. From the employer's perspective, it could not have been desirable to have the co-worker leave her shift to return her mother's car, regardless of whether the co-worker arranged to do this on her own or enlisted the assistance of the employer and the applicant. A minimal benefit could be seen as having accrued to the employer under the arrangement between the applicant and the co-worker, because it allowed the employer to keep the co-worker on her shift with less disruption than might otherwise have been expected, and because it facilitated the employer's collection of a reduced fair from the applicant. But the problem of getting the co-worker's mother's car to the mother's house was primarily a concern for the co-worker. The employer acquiesced in the arrangement to facilitate the co-worker's needs, not its own. The applicant credibly testified that had the arrangement with the co-worker not been made, he would have just waited for another of the employer's taxis and hired it to take him home. Considering all the circumstances, the applicant's driving of the taxi to the co-worker's house cannot reasonably be said to have constituted a substantial service to the employer.

Larson notes that the applicability of the "employer's conveyance" exception depends on the extension of risks under the employer's control. Larson at § 17.11. An example of such a case is Krause v. Western Casualty and Surety Company, 3 Wis. 2d 61, 87 N.W.2d 880(1952). In that case one of the employer's owners invited the employe, and three co-workers who were employed as carpenters by the employer, into his car to be driven to a nearby restaurant for a coffee break. On the way, there was an accident and the court affirmed the award of compensation. The court applied the "personal comfort" doctrine to the coffee break deviation, but also supported it by relying on the employer's conveyance rule. Id. at 70. The employer's owner in that case not only provided his car for the transportation, but also drove the vehicle. One could argue that there are similarities between the applicant's case and Krause, in that the employer provided a vehicle and the trip in question was more of a gratuity or fringe benefit to the employe than a service to the employer. But unlike Krause, the applicant was not on a "personal comfort" break. He was driving home from work in a vehicle which was essentially loaned to him for a reduced fair, and which he controlled.

Analysis of the "part-of-service" and "employer's conveyance" exceptions come together in a more recent coming-and-going case, Doering v. LIRC, 187 Wis. 2d 472, 523 N.W.2d 142 (Court of Appeals 1994). Doering was a salaried plant foreman for a manufacturer of storage tanks and power washing equipment. His work duties included expediting orders and making pickups and deliveries to various customers. The employer gave him use of the company pickup truck to make these pickups and deliveries, and also allowed him to use it for personal travel. The employer paid all the operating and maintenance expenses for the truck. On his way to work one morning, while driving the truck, he was killed in an accident. The court, in finding coverage, went through a detailed analysis of the coming-and-going cases in Wisconsin (Id. At pages 479-89). In its central holdings the court stated:

"Under this rationale, the furnishing of a vehicle or payment of transportation expenses by the employer cannot be considered alone as a basis for triggering coverage; rather, we must examine the entire employment picture. Id. at 487.

As stated earlier, coverage under this exception depends on the relative importance of the travel to the employment, and the payment of travel expenses alone does not automatically make the travel part of the employment." Id. at 488.

The court found coverage for Doering because he needed to use the truck during the work day and on weekends to make pickups and deliveries for the employer. The court also noted that he had to bring the truck back and forth from his home to serve the employer's business needs. Finally, the court found that the employer controlled and exercised the choice of the vehicle to be used, noting that it paid all the expenses. The dissimilarities between Doering's arrangement and the circumstances of the applicant's case are significant. The applicant was doing a favor for a co-worker, and using one of the employer's cabs for the purpose of getting home. He was not serving any substantial business purpose for the employer.

One of the cases cited in Doering is perhaps more instructive than others with regard to the applicant's case. In Brown v. Industrial Comm., 236 Wis. 569, 295 N.W.2d 695 (1941), the applicant was a used car salesman whose employer allowed him to use any one of the cars on the lot to go to work, so long as a car was available to use. The applicant had driven one of the employer's cars home. When he was about to leave to return to work, he had trouble starting the car and an explosion occurred injuring his eye. The court denied coverage because there was no agreement on the part of the employer to transport the employe, the employer was not obligated to furnish a car, and the employer could not control the means of transportation. These reasons are equally applicable to the applicant, particularly given the casual, non-business nature of his trip on February 8, 1998. The applicant was not performing work in the course of his employment when injured on that date.

Finally, the applicant's motion to submit allegedly newly discovered evidence is denied. The evidence offered consisted of a memo allegedly written by the employer's dispatcher who was on duty the morning of February 8, 1998, and who indicated in the memo that he had a hard time covering calls that morning, and had no way to get drivers home from the office. The applicant asserts that this shows the employer risked losing a fare from the applicant if it had not allowed the arrangement with the co-worker. The applicant also submitted a copy of statements the employer's general manager and another individual allegedly made to the Madison Equal Opportunities Commission, and asserted that these statements undercut the credibility of the general manager, who testified at the hearing held in this matter.

The employer's dispatcher could have been subpoenaed to testify at the hearing held in this matter on September 2, 1998. The applicant has not provided an acceptable excuse for failing to subpoena him, and therefore the alleged statement does not fit within the criteria for newly discovered evidence. Lock v. State, 31 Wis. 2d 110, 116-117, 142 N.W.2d 183 (1966). In addition, even were the dispatcher's alleged statement to be accepted into evidence, it could not change the applicant's testimony to effect that had he not made the arrangement with the co-worker, he would have waited for another of the employer's taxis to bring him home. Nor is it a likely inference that the employer's dispatcher would have been concerned with loss of the applicant's fare at the time he agreed to the arrangement benefiting the applicant's co-worker. Furthermore, even considering the general manager's alleged statement to the Equal Opportunities Commission, there is no significant discrepancy between that statement and the general manager's testimony on September 2, 1998.

NOW, THEREFORE, this

ORDER

The FINDINGS OF FACT of the administrative law judge are set aside and the commission's findings are substituted therefor. The application is hereby dismissed.

Dated and mailed May 11, 1999
talbecl.wrr : 185 : 7  ND § 3.17

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY DENNIS C TIEDT
BARSNESS LAW OFFICES

ATTORNEY DOUGLAS M FELDMAN
LINDNER & MARSACK SC

Appealed to Circuit Court.  Affirmed January 20, 2000.

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