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

LANDON WALLIN, Applicant

MINERS INC, Employer

WAUSAU UNDERWRITERS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-014491

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed by the applicant.

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 October 6, 1999
wallila.wsd : 175 : 2  ND  § 3.17 § 3.19

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in his petition for commission review that the administrative law judge erred in determining that the applicant was not performing services incidental to and growing out of his employment with the employer nor did he sustain an injury arising out of his employment when he hurt his ankle on the employer's premises on November 16, 1997. The applicant states that the employer had an obligation to keep the entire parking lot safe for its employes and the employer may not avoid compensation for impulsive, momentary, and insubstantial deviations. However, it was not established that the applicant was injured while in a momentary deviation from his normal duties. Rather, the applicant had completed his work for the day and had punched out from work and was no longer performing any duties for the employer at the time of his injury.

Under Wis. Stat. § 102.03(1)(c)2. any employe going to and from his or her employment in the ordinary and usual way is performing service growing out of and incidental to employment. However, in this case it was not established that the applicant was going to and from his employment in the ordinary and usual way. The evidence indicates that the applicant normally parked his car in the employer's south parking lot and exited directly onto 16th Street when going from work. However, on November 16, 1997, the evidence based on the testimony from two co-workers, Mr. Olson and Mr. Janz, indicated that the applicant left work and entered his automobile and drove to the north side of the employer's building where the applicant, Mr. Olson and Mr. Janz played football catch for approximately 12 to 13 minutes. The evidence indicates that the applicant engaged in playing football on an infrequent basis after leaving work and was engaged in a purely personal recreational activity on the employer's premises at the time of his ankle injury. The evidence does not indicate that the applicant was going from his employment in the ordinary and usual way while on the employer's premises at the time of the injury.

The administrative law judge appropriately noted that the fact that the applicant was injured while on the employer's premises does not bring about liability for the employer under the Act. The applicant was not engaged in his usual work duties at the time of the injury and in fact had left work for the day and was engaged in personal recreation. Since the applicant did not establish that he was injured while going from work in the ordinary and usual way. The applicant's case is similar to Dardanell v. DILHR, 37 Wis. 2d 249 (1967), where an employe was injured after punching out from work but did not directly enter her car and was engaged in a purely personal activity while lifting a large box containing a doll owned by a co- worker out of her trunk when she was injured. The court noted in Dardanell that it was clear that it was neither ordinary nor usual for the applicant to deviate in her route by opening the trunk and to engage in conduct that was unrelated to her departure from the parking lot. Similarly in the current case the evidence established that it was not ordinary or usual for the applicant to deviate from his normal route leaving work onto 16th Street to play football catch in the north parking lot. Based on the testimony from Mr. Olson and Mr. Janz and given the evidence of the applicant's normal route going to and from his employment the evidence did not establish that the applicant was performing services growing out of and incidental to his employment nor did he sustain an injury arising out of his employment.

cc: ATTORNEY PETER J NICKITAS

ATTORNEY MARK A SIEFERT
STILP & COTTON

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