Wis.LIRC WC Decision: Overbye - November 7, 1996 - ND � 3.25 - Traveling Employe - applicant injured in car accident while on sightseeing excursion after last meeting had ended; innocent, reasonable recreational activities during course of business trip not a "deviation"; cases finding deviation distinguished

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

SCOTT W OVERBYE (Deceased), Applicant
ARTHUR OVERBYE

WISCONSIN ELECTRIC POWER CO, Employer

WORKER'S COMPENSATION DECISION
Claim No. 95048232

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

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

Dated and mailed: November 7, 1996
overbsc.wsd : 101 : 8 ND � 3.25

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The applicant, while in Dallas, Texas, to attend a business seminar for the employer, was seriously injured in a car accident. The car accident occurred while the applicant, a co-worker, and the applicant's wife (who evidently was not employed by the employer) were on a sightseeing excursion to Fort Worth about two hours after the last session of the seminar had ended. The ALJ concluded that the applicant was in the course of his employment at the time of his injury or, more precisely, that the applicant's injury arose out of his employment with the employer while he was performing services growing out of and incidental to that employment.

In its petition for commission review, the employer essentially makes two points: (1) that the applicant deviated from his business trip when he chose to sightsee as part of a personal vacation, a personal choice manifested by the fact he arranged to have his wife join him at the conclusion of the seminar; and (2) that the deviation was not reasonably necessary for living because the applicant's business in Texas had ended and he chose to prolong the trip for personal reasons. The employer's assertions track the language of the statute that the ALJ cited in support of his order, the "traveling employe" statute, sec. 102.01 (1)(f), Stats.

In order to hold his employer liable under the worker's compensation law, a worker must show he was injured while "performing services growing out of and incidental to his employment." Section 102.03 (1)(c)1, Stats. Because the applicant was on a business trip while he was injured, the "traveling employe" statute, sec. 102.03 (1)(f), Stats., must be considered. That section 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 its footnote 11 to the worker's compensation statute:

"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."

According to the supreme court, if an injured worker is a "traveling employe" on a business trip, the law presumes he is performing services during the entire course of the trip, although the presumption may be rebutted. Hunter v. DILHR, 64 Wis. 2d 97, 102 (1974). Thus, an off-duty injury during a business trip ordinarily would be compensable unless the employer shows: (1) a deviation by the worker from his business trip and (2) such deviation was for a personal purpose not reasonably necessary for living or incidental thereto. Dibble v. DILHR, 40 Wis. 2d 341, 346 (1968). The court has also stated:

"Whether there is a deviation depends on whether there is established some `. . . meaningful manifestation to engage in activities purely personal to the employee . . .' The test is whose purpose was served. No purpose of the employer was in any way served [by the deviation in Hunter]. The evidence was sufficient . . . to find that the appellant deviated for a personal purpose and not for the benefit of the employer."

Hunter, at 64 Wis. 2d 103.

If a generalization is possible from the case law, it is that innocent, reasonable recreational activities during the course of a business trip are not a deviation. In discussing sec. 102.03 (1)(f), Stats., two commentators have written:

"An employe whose employment requires travel is deemed to be performing service in the course of employment at all times while on a trip except when engaged in a deviation for a purely private and personal purpose . . . Acts that are reasonably necessary for living such as eating, sleeping, and reasonable recreation are not regarded as deviations from employment."

Neal & Danas, Workers Compensation Handbook, sec. 3.25 (3d ed 1990).

The supreme court provided guidance for determining when recreation is reasonable and does not amount to a deviation is found in Hansen v. Industrial Commission, 258 Wis. 623 (1951). In Hansen, a salesman who attended a nightclub with a client after working hours. After the client left the club at 1:30 a.m., the salesman remained. He was found dead the next morning. The Industrial Commission denied benefits on the theory that the connection between the employment and the death was speculative. The supreme court reversed, stating:

"The provisions of the statute . . . keep the salesman within the declared scope of employment while doing the usual, legitimate things incidental to daily existence. During the period of being at ease, upon leaving his last customer, he is not required to seek immediate seclusion in a hotel and remain away from human beings at the risk of being charged with deviating from his employment. Nor is he required to eat his evening meal at the restaurant nearest to the spot where he takes leave of his customer for a particular day.

"The statute is so framed as to prevent any finding of deviation unless some meaningful manifestation of an intention on the salesman's part to engage voluntarily `in a deviation for a private or personal purpose' is shown to exist. . . . It cannot be held that evidence exists of a deviation if it does no more than show the salesman engaged in proper and customary conduct while living away from home."

Hansen, at 258 Wis. 626-27.

The Hansen court went on to distinguish prior cases, including the Armstrong case cited by the employer in its brief, noting that Mr. Armstrong had left the city where his business travel took him to visit friends in Canada. The court also noted that sec. 103.03 (1)(f), Stats., "was adopted following some cases where slight circumstances were apparently sufficient to show a `deviation from employment.'" Hansen, at 258 Wis. 2d 628. Consistent with Hansen, compensation has been paid even for recreational activities that are arguably less than reasonable or innocent recreation. (1 )

The meaning of "reasonable recreation incidental to living" was considered by the commission more recently, in Richard Kamps v. CBS Inc., WC claim no. 95012406 (March 13, 1996). In that case, the commission allowed benefits when a runner hired by the television network to travel to Lillehammer, Norway, to cover the Winter Olympics was injured while skiing off-duty.

It is true, there are many cases where the commission and the courts have found deviations by traveling employes and denied compensation. But these cases either involve a worker who consumes large amounts of liquor generally prior to engaging in rather dangerous behavior, (2 ) or a worker who leaves the city that was the destination of the business trip, (3 ) or a worker who does both. (4 ) The commission has also denied benefits in cases where the worker was injured in an off-duty swimming accident after drinking alcohol, but these cases involved situations where the worker was assigned to a location for so long he was no longer considered to be traveling. (5) .

Here, of course, the record does not establish that the applicant had deviated by drinking an unreasonable amount of alcohol, or that he was leaving the Dallas-Fort Worth metropolitan area on a side trip for personal reasons. Rather, he was simply seeking an innocent diversion while in the Dallas-Fort Worth area on a business trip. Sightseeing while on a business trip in and of itself is not a deviation, but rather reasonable recreation incidental to living.

However, the employer goes on to suggest that, once the applicant decided to stay over Friday night and have his wife come to Dallas, he converted the trip to a purely personal one. Thus, the employer asserts, the applicant was engaged in a deviation because he could have chosen to leave that day instead of staying over and sightseeing. The logical conclusion of the employer's argument is that once the applicant's seminar ended at noon on Friday, he started a deviation by not simply packing up and leaving.

However, the employer's position cannot convincingly counter the fact that the employer offered the choice of staying over an extra night in the first place, and benefited from that choice by saving several hundred dollars in air fare as travel consultant Nowak testified. True, the employer did not require the applicant to stay over and, true, the applicant did plan to spend the weekend in Dallas-Fort Worth with his wife. But it is also true that the stay-over served the clear business purpose of saving money in air fare. The applicant's choice to stay over was not "a purely personal deviation," nor can it be said that the purposes of the employer were "not in any way served" by the applicant's choice, as was the case in Hunter, 64 Wis. 2d at 103.

Nor does the fact that the applicant's wife flew to Dallas to spend the weekend with the applicant convert the stay-over to a personal deviation. That argument might have more force had the applicant been injured after the Saturday flight left. The employer's policy was only for a one-day stay-over and as soon as the employer could get the cheaper flight on Saturday its purpose would have been served. Remaining in Dallas after that point might seem to be a purely personal deviation, at least until the applicant resumed the course of employment by beginning the return trip home. But here the accident happened even before the Friday flight had left.

Finally, the commission must be guided in this case by a statement made by the supreme court in Phillips:

"In cases where the evidence is evenly balanced and an inference may be drawn one way as easily as another, the scale should be turned in favor of the claimant, principally because it was the intent and purpose of the act to bring border-line cases under it . . ."

Phillips, at 56 Wis. 2d 569.

cc:
ATTORNEY MICHAEL K SCOTT
DAVIS & KUELTHAU SC

ARTHUR OVERBYE

ATTORNEY LYNNE ENGLISH
WISCONSIN ELECTRIC POWER CO

MARGARET OCONNELL
W C DIVISION

ATTORNEY ROBERT H DUFFY
QUARLES & BRADY

STEPHEN M SOBOTA
ASSISTANT ATTORNEY GENERAL

Appealed to Circuit Court; affirmed. Appealed to Court of Appeals; reversed in an unpublished Court of Appeals decision, October 13, 1998. Appealed to Supreme Court; Ct. App. decision reversed and LIRC decision reinstated in Wis. Electric Power Co. v. LIRC and Scott Overbye , 226 Wis. 2d 778, 595 N.W.2d 23 (1999).

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Footnotes:

(1) (Back) One example is Phillips v. DILHR, 56 Wis. 2d 569 (1972). That case involved the City of Phillips chief of police who was in Milwaukee to attend a law enforcement seminar. The police chief was familiar with Milwaukee, having tended bar there before becoming police chief. He visited the bar where he formerly worked, had three highballs in less than an hour, left to check into a motel. His whereabouts for the next several hours were unknown, but there was some evidence he was stopped at some point for driving the wrong way on a one-way street. At about 3:00 a.m., while walking in the vicinity of his hotel, he was struck by two cars, and later died. His blood alcohol level at the time of death was 0.24 percent.

DILHR and the courts allowed benefits, characterizing the police chief's actions as a walk after a late dinner in a neighborhood he was familiar with. The fact he was intoxicated, DILHR and courts reasoned, was alone not enough to establish a deviation.

(2) (Back) Goranson v. ILHR Dept., 94 Wis. 2d 537 (1980).

(3) (Back) Neese v. State Medical Society, 36 Wis. 2d 497 (1967); Hunter v. DILHR, 64 Wis. 2d 97 (974); Dibble v. DILHR, 40 Wis. 2d 341 (1968).

(4) (Back) Tyrell v. Industrial Commission, 27 Wis. 2d 219 (1965).

(5) (Back) Sauerwein v. DILHR, 82 Wis. 2d 294 (1978); Carlson v. Inland Dredge, WC case no. 93061871 (LIRC, August 30, 1996).