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

MARSHALL BEGEL, Applicant

UW MADISON, Employer

UW SYSTEM, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998014896

The employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on January 25, 1999. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained an injury while performing service growing out of and incidental to his employment with the employer, and whether the injury arose out of that employment. Should a compensable injury be found, nature and extent of disability and liability for medical expense would also be at issue.

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 her Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Background Facts

The background facts of this case, as found by the administrative law judge and reiterated below, are undisputed.

The applicant was born in 1970. In 1996, he began to pursue a Master's degree at the University of Wisconsin-Madison in civil and structural engineering. In 1996, he also began working as a research assistant for the University under the supervision of David Bohnhoff, an Associate Professor in the Biological Systems Engineering Department.

As a research assistant, the applicant worked on a post-frame construction tolerance project. The applicant would examine and measure post-frame buildings to determine how accurately they were constructed. The ultimate purpose of this project was to develop standards for the building industry to determine what was acceptable or not acceptable when a building was out of tolerance.

As a research assistant, the applicant also worked on a second project called the long-span truss bracing project. This involved research to determine what bracing was needed to prevent buildings under construction from being blown over by the wind. This project primarily involved wide-span buildings.

As part of his work, the applicant was required to periodically consult with Professor Bohnhoff. This was an essential part of his duties. A face-to-face consultation was more common and more productive. A face-to-face consultation was preferred.

Faculty members and research assistants performed their work at all hours of the day on any day of the week. There was no set schedule. It was basically a matter of convenience. Professor Bohnhoff, in particular, tried to be as accessible as possible to his students. He encouraged them to contact him at any time, even at his home, as long as it was not too late in the evening.

From July 1996 through April 1997, Professor Bohnhoff was readily available on campus in his office or lab. The applicant was able to locate him easily and they met face to face on a fairly regular basis.

In May 1997, Professor Bohnhoff began working on the construction of his new home. He acted as general contractor on the project. Once the construction began in May 1997, he spent most of his daytime and weekend hours at the construction site. Once the construction began, he was no longer readily available on campus. Face-to-face meetings on campus became virtually impossible. In addition, Professor Bohnhoff did not have a home telephone at that time.

In order to consult with Professor Bohnhoff, the applicant began to visit him at the construction site. Professor Bohnhoff never specifically directed him to come to the construction site but this arrangement was agreeable to and convenient for the Professor.

At some point, the applicant and Professor Bohnhoff discussed the subject of the applicant working on the house. It is not clear who first brought the subject up. However, both the applicant and Professor Bohnhoff agreed it would be good for the applicant, as a civil engineering student, to get some hands-on construction experience.

The applicant visited the site on a few occasions to consult and perform some work. On one occasion, Professor Bohnhoff told the applicant he should come and watch a contractor pour concrete because a certain technique and different additives would be used.

On Sunday, June 22, 1997, the applicant went to the construction site to consult with Professor Bohnhoff. After their consultation about a research project was completed, the applicant asked what he could do on the house. Professor Bohnhoff said he could help glue and screw down sheets of paneling onto the floor joists.

The applicant worked for about 20 minutes. It then began to rain. The first floor was exposed and they had to move materials to a covered area. Professor Bohnhoff asked the applicant to help him move a joist. The Professor took one end and the applicant took the other. While moving the joist, the applicant stepped backward into a hole in the floor. He fell to the lower basement level onto a concrete surface. As a result of the fall, he suffered a traumatic spinal cord injury that rendered him quadriplegic.

Although initially disputing that an employer-employe relationship existed between the applicant and the employer, the employer subsequently withdrew that defense in this case and stipulated to the existence of such relationship. The primary issues remaining are whether at the time of the injury occurring on June 22, 1997, the applicant was performing service growing out of and incidental to his employment with the employer, and whether the injury arose out of such employment.

Course of Employment

Various factors cited by the administrative law judge led her to find that the applicant's physical work on Professor Bohnhoff's house was "inextricably intertwined" with his work as a research assistant, and that he was therefore in the course of his employment with the employer when he injured himself while helping the Professor move a joist. The commission's review of the evidence leads it to a different factual inference.

The applicant came to the house construction site on June 22, 1997, in order to discuss with Professor Bohnhoff his research assistant project on long-span truss bracing, which he was working on at that time. In testimony, the applicant described this project as follows:

"Q All right. So, this different project is described in Dr. Bohnhoff's statement as a long-span truss bracing project, and I'd like you to describe for us what that was.

"A Okay. That was to investigate what kind of bracing would be needed to prevent buildings that were under construction to prevent them from being blown over by the wind. (Transcript pages 16-17).

* * *

"Q What responsibilities did you have in regard to participating in this long-span truss bracing project?

"A Well, I was doing some calculation to determine what wind forces would be acting on different types of trusses and to try and come up with a relationship between the force of the wind and the deformation of the truss that would cause it to fall over." (Transcript page 17).

Prior to the long-span truss bracing project, the applicant had worked with Professor Bohnhoff on a different research project called the post-frame construction tolerance project. This project required the applicant to visit buildings under construction and measure one of several tolerances to determine how well the building was being built, and then to analyze the data collected. The applicant completed the measurement-taking aspect of this project by the end of the 1996 fall semester, made presentations concerning his findings at construction conventions in February and May of 1997, and thereafter turned his attention to the long-span truss bracing project. He still had a report to write concerning the post-frame construction tolerance project, but he "put it on the back burner" as of May 1997.

It is important to compare the descriptions of the applicant's research projects with the details of his activities at the house construction site on June 22, 1997. On that date the applicant, after completing his academic discussion with Professor Bohnhoff, asked the professor what he could do to help with the house construction. Professor Bohnhoff told him he could assist the Professor's wife and sons, who were in the process of gluing four-by eight-foot sheets of strand board to the first floor joists. For approximately the next 20 minutes, the applicant proceeded to help glue the strand board into place, and to remove excess glue that had dried on joist surfaces. At that point, a light rain began to fall and everyone stopped what they were doing in order to cover the exposed wood construction with tarps. Professor Bohnhoff asked the applicant to help him move a joist off a tarp and it was while moving this joist that the accident occurred.

When the applicant was injured he was no longer in the course of his employment as a research assistant for the employer. He had completed his academic discussion with Professor Bohnhoff and had volunteered to assist him with the construction of his house. The work the applicant was performing with the strand boards and the joist was not related to measuring construction tolerances, or to calculating wind forces or other stresses on trusses. He was merely assisting the Professor and his family with mundane construction tasks necessary for the completion of the Professor's personal residence. This assistance did not involve the applicant in making any contacts with contractors or any construction personnel beyond the Professor's family members.

The only thread which arguably connects any of the applicant's activities at Professor Bohnhoff's house site with his research assistantship was the idea that it would be good for the applicant to gain some practical, hands-on experience in a building construction, since he was studying to become a civil/structural engineer. But under the circumstances of this case, such connection was too tenuous and remote to have brought the applicant into the course of his employment as a research assistant. Neither gluing strand boards to joists, nor scraping glue off joists, nor helping to move a joist off a tarp so that the tarp could be placed over wood construction would have taught the applicant anything useful concerning wood or building tolerances, force or stress on trusses, or any other mental or physical skill required of a civil engineer. When asked to explain what relationship he saw between his home construction and the applicant's project on post-frame construction tolerance Professor Bohnhoff gave unconvincing testimony as follows:

"Q Could you describe for us the relationship if any between that particular project and the building of your home at 5931 Schroeder Road?

"A Well, there's definitely a need to understand why buildings perhaps aren't constructed as accurately as they are constructed. You can put numbers on a sheet of paper, okay, and say I want you to build to this particular tolerance but the general person has no idea how hard those tolerances are received and worked out there, and that's particularly true of civil engineering." (Transcript page 49.)

* * *

"Q Describe for us if you can the relationship between your house project and the research project.

"A There's a relationship, if you can, to the work and look at the exact type of work Marshall did. He's looked at warp, dimensions, wood-related problems. You can talk about saw cuts, you can talk about being out of plumb, being out of square. The size of the object is relevant.

"Q That's the main difference then as opposed to a commercial building which was basically the subject matter of that versus a residential project?

"A What we're looking at is tolerance. The state certainly does.

"Q Those are fairly large-scale buildings?

"A They vary tremendously in size as well as the ones that Marshall looked at." (Transcript page 50.)

Professor Bohnhoff went on to concede that there was "less" relationship between his home construction and the long-span truss bracing project, and further testified:

"That particular problem was looking at a problem that probably was more specific to very wide-span buildings although the research itself had to certainly involve a range of buildings. He was modeling, I believe, spans as low as 30 maybe up to 80. The spreadsheet that was discussed before the accident would have had those sorts of ranges in it." (Transcript page 51.)

Again, this testimony is consistent with the factual inference that on June 22, 1997, the applicant and Professor Bohnhoff discussed the long-span truss bracing project in an academic sense, and that it was after that discussion was completed that the applicant volunteered to assist the Professor with his personal construction project unrelated to the applicant's research or education.

The administrative law judge was also influenced in her decision by the fact that the applicant, as Professor Bohnhoff's student, desired to stay in good favor with the Professor, and hoped the Professor would help him in the future with prospective employers. However, Professor Bohnhoff did not require the applicant to assist him with the construction of his house. Neither Professor Bohnhoff nor the applicant could remember who first suggested that the applicant actually assist in the construction tasks, indicating that it was done on an informal, volunteer basis. Professor Bohnhoff did encourage the applicant to come to the construction site when the basement concrete was being poured because "some special techniques, different techniques" were being used. But the applicant's observation of the concrete pouring did not require any physical participation, this was the only occasion on which Professor Bohnhoff specifically invited the applicant to the site for a construction related purpose, and the circumstances were unlike those of June 22, 1997. On that date, the applicant came to the site to discuss academic matters and volunteered to perform uncomplicated labor after the academic discussion had ended. The applicant testified that he thought Professor Bohnhoff would have been disappointed had he not assisted with the construction labor on the house, but this perception could not have been based on any terms of the applicant's employment with the employer. There was never a written or verbal statement from the Professor or the University relating such labor to the applicant's research or education, the Professor conceded in testimony that there would not have been any adverse consequences to the applicant's academic status had he not performed the labor, and on the date of injury the applicant was under no obligation to remain at the site after he had completed his academic discussion with the Professor. While it is certainly credible that the applicant likely felt that he was in some sense gaining the Professor's favor by volunteering his assistance, such perception is normal for almost any form of volunteer activity. That perception was not sufficient to have transformed a volunteer activity into a work activity which benefited or provided service to the employer.

The applicant has additionally argued that he was performing a special errand at his employer's direction when he was injured on June 22, 1997, citing Continental Casualty v. Industrial Comm., 28 Wis. 2d 89, 135 N.W.2d 803 (1965). In that case, the court stated: "The broad rule stated by Professor Larson commends itself." (1) But the court stopped short of full adoption of Professor Larson's rule, further stating:

"Perhaps there may be circumstances under which directions given by a superior would be so clearly unauthorized that services rendered in response thereto could not be said to grow out of or be incidental to the employment." Id. at 96.

The court went on to award compensation to the deceased employe's widow in Continental Casualty, noting that the accidental gun shot which had fatally wounded the employe, while incidental to the performance of a personal favor for the employe's supervisor, was also incidental to the performance of a work task and was performed on the normal work premises during ordinary work hours. When the applicant's injury occurred, his labor was not incidental to the performance of any work for the employer, it was performed on the premises of a personal residence not owned by the employer, and it was performed as a volunteer activity on the applicant's personal time. Furthermore, there was no evidence to the effect that Professor Bohnhoff asked or ordered the applicant to perform the labor. In fact, Professor Bohnhoff's written description of events (Respondent's Exhibit 2) verified that it was the applicant who asked what he could do to help. Finally, the commission infers that even were Professor Bohnhoff's acceptance of the applicant's volunteered labor to be construed as a request for such labor, it would have to be found to be clearly unauthorized personal utilization of such labor, unrelated to the applicant's duties as a research assistant or student.

Finally, the applicant has asserted that his injury should be found to have been in the course of employment pursuant to the traveling employe statute, Wis. Stat. § 102.03(1)(f). The commission agrees that the applicant was a traveling employe at the time he drove to Professor Bohnhoff's house construction site on June 22, 1997, because this was not his principal place of employment. Even though the employer did not reimburse the applicant for this trip, or for any of his other trips to the house construction site, his actual travel to the site had a legitimate business purpose. Also, the applicant received a salary from the employer rather than an hourly wage. However, when the applicant finished his academic consultation with Professor Bohnhoff, and volunteered to assist with the construction labor, he deviated from the business purpose of the trip for a private or personal purpose. All the commission's aforementioned findings concerning the unrelatedness of the applicant's construction labor activities to his research assistantship or education, as well as the lack of relationship between such activities and a business purpose or benefit to the employer, support the conclusion that there was a deviation for a private or personal purpose. The applicant was injured when the business purpose of his trip had ended, and he was engaged in a volunteer activity constituting a private or personal deviation as contemplated under Wis. Stat. § 102.03(1)(f).

Arising Out of Employment

The administrative law judge also found that the applicant's injury arose out of his employment with the employer because his work on Professor Bohnhoff's house exposed him to the hazards of a construction site leading to his injury. It is inferred that the administrative law judge had in mind the positional risk doctrine, which was explained and adopted by the court in Cutler-Hammer v. Industrial Comm., 5 Wis. 2d 247, 253-54, 92 N.W. 2d 824 (1958):

"The `positional risk' interpretation has been phrased in various ways. The core of the idea is that an accident arises out of the employment when the connection between the employment and the accident is such that the obligation or circumstances of the employment places the employe in the particular place at the particular time when he is injured by a force which is not solely personal to him. . .

"Applying the `positional risk' doctrine it has been said accidents arise out of employment if the conditions or obligations of the employment create a zone of special danger out of which the accident causing the injury arose. Stated another way, an accident arises out of employment when by reason of employment the employe is present at a place where he is injured through the agency of a third person, an outside force, or the conditions of the location constituting a zone of special danger."

It is true that Professor Bohnhoff's home construction site constituted a zone of special danger for the applicant. However, it is also true that it was not the obligation or circumstance of the applicant's employment with the employer which placed him in that zone of special danger. Rather, it was the applicant's personal choice to stay on the construction site after his work-related activities has ceased, and to volunteer his assistance on his own time to Professor Bohnhoff.

Accordingly, the commission finds that when the applicant was injured on June 22, 1997, he was not performing service growing out of and incidental to his employment with the employer, nor did his injury arise out of that employment.

NOW, THEREFORE, this

ORDER

The Findings and Interlocutory Order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed August 27, 1999
begelma.wrr : 185 : 7 ND §§ 3.11, 3.16, 3.25,  3.33

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In consultation with the administrative law judge, the commission learned that it had no disagreements with her concerning the credibility of the witnesses' testimony. As noted in its findings, the commission did disagree with the administrative law judge's factual inferences concerning the relationship between the applicant's research projections/education and the volunteer work he performed at Professor Bohnhoff's home construction site. The commission also disagreed with the administrative law judge's factual inferences concerning the nature and effect of the "encouragement" Professor Bohnhoff gave to the applicant to participate in the construction work, and with her inferences concerning the relationship of that "encouragement" to any service or benefit to the employer. However, these inferences were all drawn from undisputed facts.

cc: ATTORNEY ROBERT T WARD
SCHIRO & WARD

STEPHEN M SOBOTA
ASSISTANT ATTORNEY GENERAL
DEPARTMENT OF JUSTICE

Appealed to Circuit Court.  Reversed June 2, 2000. Circuit Court decision appealed to Court of Appeals.  Circuit Court decision affirmed, May 4, 2001, sub nom. Begel v. LIRC and UW-Madison, 2001 WI App 134,  246 Wis.2d 345, 631 N.W. 2d 220.

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Footnotes:

(1)( Back ) Larson's "special errand" rule, as quoted by the court in Continental Casualty, provides:

"When any person in authority directs an employe to run some private errand or do some work outside his normal duties for the private benefit of the employer or superior, an injury in the course of that work is compensable. "The technical reason for these holdings is simply that, whatever the normal course of employment may be, the employer or his supervisory staff have it within their power to enlarge that course by assigning tasks outside the usual area. If they do not assign these tasks on the strength of the employer-employe relation on which compensability depends, then what is the source of authority by which the task is assigned? "The practical reason for the rule is that any other places the employe in an intolerable dilemma: if he complies with the order, he forfeits compensation protection; if he does not comply, he gets fired." Id. at 94-95.

This rule is currently found in 2 Larson's Worker's Compensation Law, pp. 39-42, § 27.04[1], [4].