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

DOMINICK PAUL RODE, Applicant

QUALITY ASPHALT, Employer

SOCIETY INSURANCE A MUTUAL CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999-007149

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.

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 May 5, 2000
rodedom.wsd : 185 :  ND § 3.9  § 3.17

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In their petition, respondents attempt to distinguish the law of this case from the holdings in Krause v. Western Casualty & Surety Co., 3 Wis. 2d 61, 87 N.W.2d 875 (1958), and Van Roy v. Industrial Commission, 5 Wis. 2d 416, 92 N.W.2d 818 (1958). They argue that Krause is inapplicable because in that case the court relied not only on the fact that the applicant was on a paid lunch break, but also on the fact that the employer provided the transportation to and from the restaurant. However, as noted in Van Roy v. Industrial Commission, 5 Wis. 2d at 422:

"However, a reading of the opinion in the Krause Case establishes that the holding would have been the same if the employe Krause had not been riding in his employer's car."

In other words, the employer-provided transportation was an additional reason for compensability in Krause. But the fact that when injured, the applicant was on a paid lunch hour with the employer's consent, was enough to invoke coverage.

Respondents argue that Van Roy is inapplicable because in that case the applicant regularly used his car for employer errands, and received a gas allowance for such use. But this argument ignores the basis on which the court found compensability. That basis was the personal comfort doctrine as applied to paid lunch excursions during normal lunch hours with the employer's consent. All those elements were present when Mr. Rode was injured. In fact, the lunch was at the invitation of the employer and the food was actually paid for by the employer, elements supporting compensability which were not present in Van Roy.

Finally, respondents argue that Mr. Rode's case should be seen as analogous to Marmolejo v. ILHR Department, 92 Wis. 2d 674, 285 N.W.2d 650 (1979). There, the applicant was injured in a car driven by a co-worker on the way to a restaurant for an unpaid lunch break. The court distinguished this case from Krause and Van Roy by noting that the individuals in those cases were injured during "specific working hours of employment" while on excursions either at the employer's request or with its express consent. Id. At 681. As stated in Marmolejo v. ILHR Dept., 92 Wis.2d at 681:

" The court in Van Roy emphasized that "an employee who ministers to his personal comfort during the hours of employment is `performing services growing out of and incidental to his employment.' " (Emphasis in original.)

Mr. Marmolejo merely made a personal choice to leave the employer's premises for an unpaid lunch break. Mr. Rode was injured during specific working hours of employment while on a paid lunch excursion made at the employer's request. The law requires the awarding of compensation in this case.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe that Marmolejo v. ILHR Department, 92 Wis. 2d 674, 285 N.W.2d 650, (1979) showed that paid or unpaid lunch time was not controlling if the work injury occurred off the employer's premises. The Court wrote "Secondly, it should be pointed out that this court has not made a distinction between paid and unpaid lunch hours as alleged by the appellant. The distinction adopted by this court concerns whether the injury occurs during regular (i.e., specific) working hours. An employe, injured during regular working hours while providing services incidental to or growing out of his employment is entitled to recovery of worker's compensation benefits. The fact that an employe is paid for his time is one indication that the employe is within his specific working hours." The court also indicated that "In Krause and Van Roy the employes were injured during their specific working hours of employment and their excursions off the premises were either at the employer's request or with his expressed consent. The court in Van Roy emphasized that ".an employe who ministers to his personal comfort during the hours of employment is `performing services growing out of an incidental to his employment'"

The employe while paid for his lunch time was not off the premises during work time. He did have the employer's permission to be off the premises. The employe was not attending to his personal comfort because he had brought a lunch that day and did not need to leave the employer's premises for lunch. The employe in Van Roy had not eaten breakfast so he had eaten half his at 8:30 and the rest at 11:30 a.m. and was again hungry by 2:00 p.m.. He was allowed to go for lunch at 2:00 p.m. during regular work hours. In Krause, the employe went with the co-owner for a coffee break at 9:30 a.m. at a nearby restaurant. This occurred during regular work hours not during normal lunch time.

For these reasons, I agree with the briefs of the insurance carrier and I would find that this was not in the course of the employe's employment and dismiss the claim.

_________________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY STUART J KRUEGER
RODLI BESKAR BOLES & KRUEGER SC

ATTONREY JOSEPH DANAS JR
BORGELT POWELL PETERSON & FRAUEN SC

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