Wis.LIRC WC Decision: Hake, Patricia - November 17, 1989 - ND � 3.16 - Employer premises; � 3.17 - Going and Coming; � 3.19 - Parking lot - injury while on the way to lunch, entering vehicle from sidewalk - on leased premises of employer at the time

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

PATRICIA A. HAKE, Applicant

ATHUR J. GALLAGHER AND COMPANY, Employer

TRAVELERS INDEMNITY COMPANY OF ILLINOIS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 89-09612

Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Administrative Law Judge's findings and order are supported thereby. The Commission therefore adopts the findings and order of the Administrative Law Judge as its own, except as herewith modified:

Delete the second paragraph of the findings of fact, and substitute therefor the following:

"It appears that respondent is denying that the injury is compensable based on the theory that at the time of the injury the applicant was not performing service growing out of and incidental to her employment, within the meaning of section 102.03 (1)(c)1., Stats. However, section 102.03 (1)(c)2., Stats., provides, in relevant part, that any employe going to and from his or her employment in the ordinary and usual way is deemed to be performing service growing out of and incidental to his or her employment if injured while on the premises of the employer. The employer in this case rented space in the Mayfair Bank Tower under a lease which provided the employer with a right to use (in common with the landlord and others to whom similar rights were granted by the landlord) the parking areas, sidewalks, roadways and other common areas and facilities within or upon the building and the parcel of land on which the building was located. The building was completely surrounded by parking lots owned by the landlord and as to which the employer had a common use entitlement. All doors from the building led to this parking lot. The sidewalk outside the door from which the applicant was apparently entering the vehicle, and the roadway in which the vehicle had been driven from the parking lot to the "pick up" point, were not purely public, municipal, facilities, but were merely part of the privately owned "parking area, sidewalks, (and) roadways" which under the lease were part of the leased "site" and as to which the employer had a common use right. From the time that she left the office suite in which she worked to the time that she sustained the injury while entering the vehicle outside the building, the applicant remained on the leased "site." It is therefore concluded that she was at, the time of her injury, on the premises of the employer within the meaning of section 102.03 (1)(c)2., Stats. Since she was also going from her employment in the ordinary and usual way, she is deemed to have sustained her injury while performing service growing out of and incidental to her employment within the meaning of section 102.03 (1)(c)1., Stats."

NOW, THEREFORE, this

INTERLOCUTORY ORDER

That the Findings and Order of the Administrative Law Judge are modified to conform with the foregoing, and as modified are affirmed. Within ten days the respondent shall pay to Patricia Hake, the applicant, the sum of Three thousand eight hundred forty dollars ($3,80) and to Attorney Aaron Starobin, Nine hundred and sixty dollars ($960). Respondent shall also pay all medical bills associated with this injury. The Department shall retain jurisdiction as to all issues.

Dated and mailed at Madison, Wisconsin, November 17, 1989
ND � 3.16 � 3.17 � 3.19

/s/ Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The general rule in Wisconsin, codified in section 102.03 (1)(c), Stats., is that any employe who is injured while going to and from his or her employment in the ordinary and usual way is considered to have been performing service growing out of and incidental to his or her employment while doing so and while on the employer's premises . Many jurisdictions follow a similar rule, under which questions can arise as to whether an employe of an employer, which rents space in a shopping mall or similar facility with extensive common areas, is on the "premises" of the employer when injured in the those common areas. The circumstances of this ease make it functionally equivalent to a case in which an employe of a tenant of a shopping mall is injured in the common areas of the mall or in a parking lot owned by and contiguous with or surrounding the mall.

This appears to be an issue of first impression in Wisconsin. However, the majority of the courts considering this issue in other jurisdictions have concluded that shopping mall parking lots and similar areas constitute the "premises" of employers operating in the malls. May Department Stores Co. v. Harryman, 307 Md. 692, 517 A. 2d 71 (Ct. App. Md., 1986); Merrill v. J. C. Penney Co., 256 N.W. 2d 518 (Minn. 1977); Evans v. J. W. Mays, Inc. , 25 A.D. 2d 597, 267 N.Y.S. 2d 233 (1966); Frishkorn v. Administrator , 26 Ohio App. 2d 165, 270 N.E. 2d 366 (1971); Livingstone v. Abraham & Strauss Inc., 111 N.J. 89, 543 A.2d 45 (Sup. Ct. N.J. 1989) , Lollar v. Wal-Mart Stores, 767 S.W. 2d 143 (Sup. Ct. Tenn 1989). Professor Larson has also noted that, when the place of employment is a building, it is not necessary that the employer own or even lease the place where the injury occurred, and that it is sufficient if the employer has some kind of right of passage, as in the case of common stairs, elevators, lobbies, hallways, or passages through which the employer has something equivalent to an easement, for it to be found that an injury occurring there occurs on the "employer's premises". Larson, Workmen's Compensation (Desk Ed.) sec. 15.40 at p. 4-38. Larson has also endorsed the proposition that if a shopping center parking lot is used by employes of businesses located in the center, the rule that a parking lot is part of the employer's premises is applicable; 1 Larson, The Law of Workmen's Compensation (1985 Ed.) sec. 15.42 at pp. 4-100 to -101. Because the Wisconsin Supreme Court has often adopted Professor Larson's views in developing areas of the law, see Maahs v. Industrial Comm., 25 Wis. 2d 240, 243 45 (1964), the Commission considers it likely that it would find May Department Stores Co. v. Harryman, supra, and similar cases to be persuasive authority if faced with the question.

The Commission notes that the fact that the employe was going from work on her way to lunch, rather than on her way home at the end of the day, makes no difference here. As Larson has noted, when an employe has a definite place and time of work, and the time of work does not include the lunch hour, the trip away from and back to the premises for the purpose of getting lunch is indistinguishable in principle from the trip at the beginning and the end of the work day, and should be governed by the same rules and exceptions. Larson, Workmen's Compensation (Desk Ed.), see. 15.50 at page 4-38).

Because it has decided the case based on this rationale, the Commission finds it unnecessary to address the employer's arguments that the Administrative Law Judge erred in finding that the applicant was injured in a "designated parking lot" within the meaning of section 102.03 (1)(c)2., Stats. The "designated parking lot" exception only becomes significant in cases in which the parking lot is physically separated from the employer's premises by an intervening area which is clearly not the employer's premises, and the injury occurs in that intervening area.. In such a case, the general rule that the injury is compensable if it occurs while the employe is going to and coming from work and on the employer's premises, is clearly not applicable, and it is therefore unnecessary to inquire into whether the employe was going to or from a "designated parking lot" (which would itself, of course, also constitute part of the "premises" of the employer). Since the applicant never left the "premises" of the employer before sustaining her injury here, the question of whether the parking lot was "designated" is not presented.

Additionally, relying as it does on its conclusion that the employe was injured while going from work in the ordinary and usual way while on the employer's premises, the Commission has no occasion to address, and makes no findings or conclusions concerning, the Administrative Law Judge's conclusion that there was a work-related purpose to the luncheon such that the injury in any event could be deemed to have occurred in the course of the applicant's employment.

110 - CD0682

cc: Donald Roy Fraker
Starobin & Associates, S. C.

Frank T. Crivello, Attorney
Riordan, Crivello, Carlson & Mentkowski

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