STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
JAMES J FRY (DEC'D)
JANET L FRY, Applicant
PIPER JEFFRAY, Employer
PACIFIC INDEMINITY COMPANY, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1995050440
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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed March 18, 1999
fryja.wsd : 145 : ND § 3.9
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
James A. Rutkowski, Commissioner
In the petition for commission review the applicant asserts that the personal comfort doctrine has been applied in a wide variety of factual situations, including getting a drink, eating, sleeping, warming oneself and extinguishing a fire. The applicant asserts that seeking medical attention is ministering to one's personal comfort, and therefore does not constitute abandoning employment. However, the applicant in this case abandoned his job, at least temporarily, to seek medical treatment for a nonwork related injury. In other words, the extent of the departure in this case, while understandable given the applicant's medical condition, goes beyond the personal comfort doctrine. This was therefore not in furtherance of the interests of the employer, but an errand of his own.
The applicant further asserts that his departure had been permitted by his employer, previously, and because he was not an hourly worker was free, in general, to set his own schedule. The applicant asserts that because he was being paid a draw, he was effectively on the payroll at the time of the tragic accident. However, a worker who is paid a draw for commission sales is not the same as an employee paid on an hourly basis.
Finally, the commission acknowledges the applicant was given permission to leave the workplace to seek medical attention, and certainly consent must be considered in a personal comfort case. However, because of the applicant's abandonment of his job, at least temporarily for a personal errand, this case is not compensable under the personal comfort doctrine.
cc: JANET L FRY
ATTORNEY GEORGE BURNETT
LIEBMANN CONWAY OLEJNICZAK & JERRY SC
ATTORNEY JULIE J DARNIEDER
DARNIEDER WEST DAVIS & GERAGHTY
STEPHEN M SOBOTA
ASSISTANT ATTORNEY GENERAL
Appealed to Circuit Court. Affirmed January 4, 2000. Appealed to Court of Appeals; affirmed October 31, 2000. [Court of Appeals decision].
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