STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
CLAUDE R PHILLIPS, Applicant
GREEN BAY PACKING INC, Employer
WAUSAU UNDERWRITERS INS CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1999040649
The applicant filed an application seeking compensation for an injury alleged to have occurred on April 1, 1999. Prior to a hearing before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on May 3, 2000, the employer conceded jurisdictional facts; an average weekly wage of $772.05; that the applicant was temporarily disabled from June 25, 1999 to December 16, 1999; that the claimed medical expense was reasonable and necessary to cure and relieve the effects of the applicant's injury; and that the applicant was paid $7,581.43 in short term disability from a self-funded plan during his period of temporary disability.
At issue is whether the applicant's injury arose out his employment with the employer while he was performing services growing out of or incidental to that employment. The ALJ decided this issue in favor of the applicant. The respondent filed a timely petition for review.
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 makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant was injured on April 1, 1999, on the employer's premises. Nature and extent of disability, assuming a compensable injury, is not at issue. The only issue is whether the applicant was in the course of employment -- that is, performing services growing out of or incidental to employment -- when he was hurt. The respondent's position is that the applicant was no longer in the course of employment, due to a personal deviation, when he was hurt.
The applicant was, at the time of injury, 51 years old. He had worked for the employer for 19 years. He was a hauler helper, and would drive rolls of paper for making cardboard from the warehouse to the plant and back again.
According to the applicant, on April 1, 1999, after delivering a load to the plant, he heard coworkers talking about a rat in the parking lot that had jumped at one of the workers. While standing in the door of the plant, the applicant saw a rat about 40 yards away, in the vicinity of some semi-trailers. He got a large putty knife and went after the rat. He claims he tried to shoo the rat away, and succeeded in chasing the rat under a trailer.
Thinking that was far enough from the plant doors, the applicant stopped. The rat stopped, too, but then turned and charged the applicant. The applicant back-pedaled, slipped in the gravel parking lot, and fell, injuring his shoulder in the process. The rat continued to come toward him. The applicant was able to kick the rat, and after the second kick, the rat stopped moving.
After the incident, the applicant returned to his truck and drove at least one more load that day. The entire incident occurred during normal working hours, before the applicant had finished work.
A witness, Fred Litkey, was subpoenaed by the respondent. He saw the applicant go after the rodent, which Mr. Litkey believed was a muskrat with a very long tail. Other than the actual species of the rodent, Mr. Litkey substantiated the basics of applicant's version of the injury. Mr. Litkey testified that the applicant approached the muskrat by walking very fast, but not running. The muskrat turned on the applicant, and the applicant fell.
The issue before the commission is whether the applicant's actions with the rodent, rat or muskrat, were a sufficient deviation to take the applicant outside the course of employment.
The supreme court has expressly held that the Worker's Compensation Act must be liberally construed in favor of including all services that can in any sense be said to reasonably come within it. (1) Upon entering the employer's premises and beginning work, an employee is presumed to be continuing to work as long as he or she is on the employer's premises, absent evidence to the contrary. (2)
Stated another way, once an employee has entered into the course of employment,
"the test to be applied in determining whether he has removed himself therefrom is one of deviation. In other words, has the employee engaged in some activity of his own which has no relation to his employer's business?"
In re the Estate of Fry v. LIRC, 2000 Wis. App. 239 ¶10, ___ Wis. 2d ___ (Ct. App., 2000), citing Van Roy v. Industrial Commission, 5 Wis. 2d 416, 422 (1958). Thus, an act for the benefit of the employee alone may constitute a noncompensable deviation. (3) However, an act is not a deviation, even if in violation of the employer's directives, if it furthers the employer's interests and not merely the employee's own personal ends. (4)
Applying these standards, the commission cannot conclude that the applicant's actions in this case, while impulsive and unwise, constituted a noncompensable deviation. If the rodent were in fact a rat, the applicant would have been acting in the employer's interests in shooing it away. The employer had had a pest control problem inside its building in the past, and the employer's supervisor testified it would have been permissible for the applicant to have chased a rat away from the door. Even if the rodent were merely a muskrat, the employer's supervisor testified it would be permissible to chase it off if it were sufficiently close to the applicant. Thus, even though the applicant's duties did not include rodent extermination, chasing vermin on the employer's premises serves the employer's interests.
The commission notes that the applicant was 51 years old at the time of his injury, and a 19-year employee. If he had previously been disciplined for engaging in horseplay, it is not in the record. Nonetheless, the commission does not deny that one might reasonably view this case as involving an element of horseplay. Certainly the employer takes that position, asserting that the applicant had departed from the course of employment "in order to engaging in [a] hunting activity."
However, even if the applicant's actions were horseplay, that does not end the inquiry. The state supreme court has
"moved away from the harsh rule that any deviation from employment would prevent an award of benefits and adopted the rule that an impulsive, momentary, and insubstantial deviation will not bar recovery."
Nigbor v. DILHR, 120 Wis. 2d 375, 384 (1984). Stated another way, minor acts of horseplay do not automatically constitute departures from employment but may in workers compensation cases, as in other fields, be found insubstantial. (5)
The Wisconsin appellate courts have adopted the following standards to determine when a deviation is a substantial or noncompensable deviation from the course of employment:
"(1) the extent and seriousness of the deviation resulting from the horseplay, (2) the completeness of the deviation (i.e., whether it was commingled with the performance of duty or involved an abandonment of duty), (3) the extent to which horseplay was accepted, and (4) the extent to which the employment may be expected to include horseplay."
Nigbor, at 120 Wis. 2d 384-85; and Bruns Volkswagen, Inc. v. DILHR, 110 Wis. 2d 319, 324-25 (Ct. App., 1982). (6) Applying these standards, a worker put his head in a energized press machine for a joke was found to have engaged in such dangerous activity as to constitute a noncompensable deviation (Nigbor). (7) On the other hand, a supervisor injured while wrestling with a coworker (Bruns-Volkswagen) was found not to have engaged in a substantial deviation. (8)
In this case, the applicant's activity with the rodent did not last long in any temporal sense. He remained on duty and on the employer's premises. Further, even though exterminating rodents was not part of the applicant's job, there is some nexus between chasing rodents away the employer's buildings and the employer's interests. In addition, the applicant's job duties put him at the door to the employer's building, where he was standing when he observed the rodent. In short, the commission view the applicant's actions as commingled with the performance of duty rather than an abandonment of duty. Moreover, while the employer disciplined the applicant for the incident, Supervisor Henke did not regard the incident as serious or a "really big deal." Mr. Henke's testimony (and the text of his written reprimand to the applicant at exhibit 1) indicate that it was not the horseplay itself, but the injury or "negative results" from the horseplay, that troubled the employer.
Thus, under the standards adopted by the courts for horseplay involved in workers compensation injuries, the applicant's deviation -- to the extent he may have deviated by engaging in "hunting activity" -- was insubstantial and did not remove him from the course of employment. Consequently, the commission, like the ALJ, concludes that the applicant sustained an injury from an accident arising out of his employment with the employer, while performing services growing out of and incidental to that employment.
Accordingly, the applicant is entitled to temporary disability from his last day of work on June 25, 1999 to his return to work on December 16, 1999, a period of 24 weeks and four days. At the weekly rate of $514.70 (two-thirds the applicant's average weekly wage of $772.05), the applicant is entitled to a total of $12,685.93 in temporary disability compensation.
During the period for which he is entitled to temporary disability compensation, the applicant received short term disability payments from the employer's self- funded disability plan in the amount of $7,581.43, which the applicant concedes should be repaid under Wis. Stat. § 102.30. Deducting those payments from the applicant's award for temporary disability leaves a balance of $5,114.50.
The applicant agreed to an attorney fee, set under Wis. Stat. § 102.26 at 20 percent of the additional amounts awarded under this decision. The fee is thus $1022.90, which together with costs of $100.44 shall be deducted from the applicant's award and paid to his attorney within 30 days. The amount remaining, $3,991.16, shall be paid to the applicant within 30 days.
The applicant also incurred reasonable and necessary medical treatment to cure and relieve the effects of the work injury, as follows: from St. Mary's Hospital, the sum of $8,599, of which $5.90 has been paid by the applicant, $7341.78 has been paid by Sisco, and $1251.32 has been adjusted from the bill; from Roderick B. Wilson, M.D., s.c., the sum of $980, all of which has been paid by Sisco; from Prevea Clinic, the sum of $2,505.50, of which $1,903.30 has been paid by Sisco, $2.90 has been adjusted from the bill, and $599.30 remains outstanding; from Green Bay Radiology, the sum of $346, of which $35 has been paid by the insurer, and $158.86 has been paid by Sisco, and $152.14 remains outstanding; and from Bay Care Clinic, $168, all of which remains outstanding. In sum, Sisco, a non- industrial insurer, is entitled under Wis. Stat. § 102.30(7) to reimbursement in the amount of $10,383.94 towards the applicant's medical expenses from the work injury. The providers listed above are to be paid any amounts still outstanding. In addition, the applicant has incurred $260.77 in medical mileage and is entitled to recover his out-of-pocket medical expenses.
Because the applicant's treating doctor reported that the applicant "continued on rehabilitation" and that it was too early to rate permanent disability (exhibit A), this order shall be left interlocutory to permit further orders and awards as are appropriate on this claim.
INTERLOCUTORY ORDER
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed. The employer and its insurer shall pay the following:
1. To the applicant, Claude R. Phillips, Three thousand nine hundred ninety-one dollars and sixteen cents ($3,991.16) in disability compensation.
2. To the applicant's attorney, the sum of One thousand twenty-two dollars and ninety cents ($1,022.90) in fees and One hundred dollars and forty-four cents ($100.44) in costs.
3. To the payor of the short-term disability, Seven thousand five hundred eighty-one dollars and forty-three cents ($7,581.43) in reimbursement of disability paid under a non-industrial plan.
4. To Prevea Clinic, Five hundred ninety-nine dollars and thirty cents ($599.30) in medical treatment expense.
5. To Green Bay Radiology, One hundred fifty-two dollars and fourteen cents ($152.14) in medical treatment expense.
6. To Bay Care Clinic, One hundred sixty-eight dollars and no cents ($168.00) in medical treatment expense.
7. To Sisco, Ten thousand three hundred eighty-three dollars and ninety- four cents ($10,383.94) in reimbursement of medical treatment expense paid.
8. To the applicant, the sum of Two hundred sixty-six dollars and sixty- seven cents ($266.67) in medical mileage and Five dollars and ninety cents ($5.90) in out-of-pocket medical expense.
Jurisdiction is reserved for such further orders and awards as are appropriate under this order.
Dated and mailed December 19, 2000
phillip.wrr : 101 : 6 ND § 3.13
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
Pamela I. Anderson, Commissioner (Dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. Unlike the majority I believe that the applicant deviated from the course of his employment when he went after the rodent. The employee took out a "large sharp putty knife" to deal with the rodent. I believe that the applicant stalked the creature and his intention was to kill it for sport. The employer had hired a professional exterminator for pest control and the employee had no responsibility for rodent or pest control. The applicant was a hauler helper. He drove the truck to the warehouse and to the plant and back again. He delivered rolls of paper to the plant to make cardboard. The applicant was written up and reprimanded for horseplay for stalking the rodent. He did not grieve the discipline.
The Nigbor case involved an individual who was a prankster and put his head in a sand mold machine and knew it would cycle. It cycled before he took his head out and he died as a consequence. The commission and court denied him benefits. I would find that the applicant deviated from the course of his employment when he chased the rodent and then kicked it to death. For these reasons, I would reverse and find that applicant was not in the course of his employment and deny all payments.
__________________________________________
Pamela I. Anderson, Commissioner
cc:
ATTORNEY ISRAEL RAMON
SCHNEIDMAN MYERS DOWLING BLUMENFIELD EHLKE HAWKS & DOMER
ATTORNEY STEVE A COTTON
STILP & COTTON
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]
Footnotes:
(1)( Back ) Severson v. Industrial Commission, 194 Wis. 489, 494 (1936). See also Wisconsin Elec. Power Co. v. LIRC, 226 Wis. 2d 778, 796 (1999) (where an inference may be drawn one way as easily as another, the scale should be turned in favor of the applicant as it is the intent and purpose of the act to bring border-line cases under it.)
(2)( Back ) Tewes v. Industrial Commission, 194 Wis. 489, 494 (1927).
(3)( Back ) Radtke Bros. & Korsch Co. v. Rutzinski, 174 Wis. 212, 217 (1921).
(4)( Back ) Grant County Serv. Bureau v. Industrial Commission, 25 Wis. 2d 579, 584 (1964).
(5)( Back ) 2 Larson, Workers' Compensation Law § 23.01 (MB 2000).
(6)( Back ) The factors are taken from the discussion in Professor Larson's treatise, now at 2 Larson, Workers' Compensation Law § 23.01 (MB 2000), which both the court of appeals and the supreme court cite with approval.
(7)( Back ) The dissent analogizes the facts of this case with those of Nigbor. However, the majority reads the court's decision to turn on the clear, obvious, and frankly mortal danger posed by Mr. Nigbor's activity in placing his head in a moving press machine. Chasing a rodent simply does not pose a danger of similar dimension.
(8)( Back ) See also: Alan Steinfeldt v. Oneida Tribe of Indians, WC Claim No. 96049444 (June 25, 1998).
uploaded 2000/12/22