Wis.LIRC WC Decision: Mohr, Daniel - October 29, 1990 - ND � 3.25 - Traveling Employe - traveling employee becomes intoxicated after work and is injured while trying to get to where he was sleeping that night - no deviation at time of injury, as going back to lodgings was act reasonably necessary for living or incidental thereto - legislature's intention clear, that fact of intoxication, absent other disqualifying circumstances, result in reduction rather than elimination of recovery

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

DANIEL MOHR, Applicant

CLAUDE W. LOPPNOW BUILDERS, Employer

SECURA INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 88-067199

The applicant submitted a petition for Commission review alleging error in the Administrative Law Judge's Findings and Order issued on July 18, 1989. Council for the employer/insurer submitted an answer to the petition. At issue is whether the applicant sustained an injury arising out of and in the course of his employment with the employer, and if so, liability for medical expenses.

The Commission has carefully reviewed the entire record in this matter and hereby reverses the Findings and Order of the Administrative Law Judge and makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was employed as a carpenter for the employer. On April 28, 1988, he was working with the employer's owner, Claude Loppnow, and Claude's two brothers, Dave and Kelly Loppnow, at a construction site away from home. At the end of the work day the applicant and Dave Loppnow stopped at a bar and drank before going back to their motel and showering. Then they ate dinner at a restaurant and went to another bar. Claude and Kelly Loppnow subsequently arrived at this bar and found the applicant there alone. Dave Loppnow had left the bar earlier. The applicant, Claude and Kelly then all drank alcoholic beverages, and discussed both work and non-work matters. The applicant drank heavily and became intoxicated.

At approximately 11:30 p.m. that night, these three individuals left the bar to return to their motel. On the way to Claude's van the applicant passed out from intoxication, and although Kelly attempted to catch him, he was unsuccessful and the applicant's head struck the payment.

The applicant was a traveling employe, and at the time he was injured, he was on his way back to his motel to sleep for the night. Therefore, at that time he was not engaged in a private or personal deviation from the performance of services growing out of and incidental to his employment as a traveling employe. Returning to his motel for the night was an act reasonably necessary for living or incidental thereto. While it is reprehensible that the applicant drank so heavily, section 102.58, Stats., provides that if an injury results from the intoxication of an employe, the compensation and/or death benefits due such employe shall be reduced by 15 percent up to a maximum reduction of $15,000. This statute makes clear the legislature's intention that the fact of intoxication, absent other disqualifying circumstances, should result in reduction rather than elimination of an applicant's recovery. The 15 percent reduction does not apply to medical expenses attributable to a work injury.

As a result of the work injury of April 28, 1988, the applicant incurred reasonable and necessary medical expenses in the total amount of $1,905.89, which remained unpaid as of the date of hearing. Payment will be ordered to the medical providers, with the understanding that if the applicant or any insurance company has subsequently made payment of any of the bills, reimbursement should be made to such payor rather than to the medical provider. In order to claim reimbursement for any medical bills which he may have paid, the applicant would have to notify the Worker's Compensation Insurer, Secura Insurance Company.

The applicant's treating physician, Dr. Holoyda, submitted a WC-16-B dated January 23, 1989, in which he found no permanent disability and no need for additional medical treatment.

NOW, THEREFORE, this

ORDER

Within 30 days from this date, the employer or its insurer shall pay the following reasonable medical expenses: to Dr. Pierce J. Meier the sum of One Hundred Seventy-Seven dollars and fifty cents ($177.50); to Medical Associates of Watertown the sum of Fifty-Five dollars ($55); to Dean Medical Center the sum of Nine Hundred Nine dollars ($909); to Watertown Memorial Hospital the sum of Six Hundred Sixty-Seven dollars and forty cents ($667.40); to Shopko Pharmacy the sum of Seventeen dollars and ninety-nine cents ($17.99); and to Central Otologic, Ltd. the sum of Seventy-Nine dollars ($79).

Dated and mailed October 29, 1990
ND � 3.25

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

NOTE: The Commission has reversed the decision of the Administrative Law Judge as a matter of law. The Commission and the Judge were in agreement concerning the relevant facts of the case.

cc:
William Hue, Attorney
Krek, Friedericks & Hue

Willaim R. Sachse, Jr., Attorney
Peterson, Johnson & Murray, S.C.

185 - CD8245

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