Wis.LIRC WC Decision: Augustine, Kim - September 13, 2000 - ND � 3.21 - Work At Home - services covered where employee, who sought time off to stay home with ill child, performed work there at request of employer and was injured

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

KIM A. AUGUSTINE, Applicant

KENOSHA VISITING NURSE, Employer

UNITED WISCONSIN,
c/c UNITED HEARTLAND INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-064631

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 September 13, 2000
auguski . wsd : 132 : 6 ND � 3.21

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The respondent has petitioned for commission review of the adverse findings and order of the administrative law judge. The commission has reviewed the record in this matter and considered the arguments raised in respondent's petition. The applicant was performing services for the employer at the time of injury. The applicant was doing paperwork which needed to be completed following her visits, which the employer had given her permission to do at home. Under Wis. Stat. � 102.03(1)(c)4. the employer's premises includes the premises of any other person on whose premises the employe performed services. The applicant did not have a choice to go to the office and perform her work and leave her ill minor child at home alone. There is an aspect of convenience in this case, but it is the convenience to the employer not the applicant. It was not convenient for the applicant to be performing work at home. It would have been convenient for the applicant to do what she originally planned on doing, which was to simply call in and indicate she would be absent in order to care for her daughter. The employer requested that the applicant perform work that day and gave the applicant specific permission to perform paperwork at home in order that the work be done. The applicant was not injured engaging in a personal activity but when acting in her capacity as a nurse for the employer. The applicant was not injured going to or coming from work but while actually performing services for the employer. For these reasons, and for the reasons set forth in the findings and order of the administrative law judge, the commission affirms such finding.

cc: Attorney John A. Becker
Becker French & De Matthew

Attorney Philip Lehner
Capwell Nolden Kallenbach & Grahovac SC

Pamela I. Anderson, Commissioner (dissenting):

I am unable to agree with result reached by the majority herein and I dissent. The administrative law judge relied on Black River Dairy Products v. Department of Industry, Labor and Human Relations, 58 Wis. 2d 537, 207 N.W.2d 65 (1973) to find that the employe worked at home for the convenience of the employer. Black River Dairy at page 546 states "Under the three indicia recognized by Professor Larson, namely (1) the quantity and regularity of work performed at home; (2) the continuing presence of work equipment at home; and (3) the special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home, the premise of Smith should be deemed the premises of his employer as a place of employment while engaged in work growing out of and incidental to his employment." The employe in Black River Dairy fell under point two and so received benefits. In this case the only point at issue is point 3.

Under Larson � 16.10(3) Work Done at Home for Employee's Convenience "If work is done at home for the employee's convenience, the going and coming trip is not a business trip within the dual-purpose rule, since serving the employee's convenience in selecting an off-premises place in which to do the work is a personal and not a business purpose. The actual performance of the work itself may, under the rules in the next subsection, be within the course of employment; but the trip is not, since it is transfer of the location of the performance and not the performance itself that serves the employee's personal purposes. The clearest kind of illustration of this is the case of the bookkeeper who expressly asked to take the afternoon off, and was allowed to do so on condition that certain notices be addressed and mailed before that night. That evening, after having taken a trip and dining with her sister, and having managed to get the notices addressed in the meantime, she for some reason started back to the office, and on the trip was killed. She had not been requested to return to the office. Compensation was denied. The alternative would be to say that when one deliberately takes the afternoon off, he or she remains in the course of employment throughout the half-holiday if he or she carries a bit of unfinished business to which the employee may apply himself or herself at any moment.

Whenever it could honestly be said that the taking of work home was solely for the employee's personal convenience, compensation for injuries during the regular trip to or from work which the claimant would have taken in any case has been denied. Thus, in a California case, the claimant was a schoolteacher who had been injured in an automobile accident while driving to school from her home. Reversing the appellate court, the California Supreme Court refused to allow compensation benefits. Applying the "going and coming" rule, the court held that injuries sustained while traveling to work are compensable only when the employer requires work to be done at home. Although teachers normally do work at home, the court found that it was not required by the employer and was done merely for the convenience of the teacher. The court held that "if work is done at home for the employee's convenience, the commute does not constitute a business trip."

In this case, the employe was going back to her car to bring in some more paperwork when she was injured. The employe was working at home rather than at work for her own convenience to be able to take care of her daughter who was ill. The majority find the fact that she was doing work at home was for the employer's convenience because if she did not do the work at home it would not be done. I believe that this is not at all what Larson had in mind. By that standard, any time the employe does work it is for the employer's convenience. Larson was not concerned with the employer's convenience unless it was like the Black River Dairy case where the employe took a truck home and activated the truck's freezing unit. The employe took the truck home for the employer's convenience but it was compensable because the employe regularly worked at home. The employe in this case had never worked at home before. In this case, while the employe was working on her reports, had a ceiling fixture fallen on her, she likely would have been covered.

Because I believe the majority and the administrative law judge are misreading Black River Dairy, I would reverse and find that the employe was involved in "coming and going" and thus not on a business trip because the trip was for the convenience of the employe.

Pamela I. Anderson, Commissioner

Appealed to Circuit Court. Affirmed February 23, 2001.

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