TODD T JOHNSON, Applicant

CLEARY BUILDING CORP, Employer

ZURICH AMERICAN INSURANCE COMPANY, Insurer

The employer and its insurance carrier (respondents), as well as the applicant, each submitted petitions for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on September 14, 2001. Briefs were submitted by the parties. The initial issue is whether on December 23, 2000, the applicant sustained a fractured left ankle while in the course of his employment with the employer. If the injury is found compensable, additional issues arise concerning nature and extent of disability, as well as decreased compensation pursuant to Wis. Stat. § 102.58.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses her Findings and Interlocutory Order. The commission makes the following:

The applicant, whose birth date is July 13, 1977, was employed as a carpenter for the employer, a pole barn contractor. On December 23, 2000, he was scheduled to meet his foreman, Schuyler, and his leadworker, Kelly, at the employer's base of operations in Verona. The applicant lived on the east side of Madison. The applicant was late and Schuyler and Kelly waited for him for awhile, and then Schuyler drove the company van to his house in Stoughton with Kelly as a passenger. They were headed for a job site near Lake Mills. When the applicant got to the employer's business place he saw that Schuyler and Kelly had already left, but he guessed that he could catch up with them at Schuyler's house, where he believed they would stop. He did find them there and the three of them then left for the job site in the company van. Schuyler drove.

It was snowing heavily and on the way to the job site Schuyler decided to stop at a bar and wait for the snow to end. He, the applicant, and Kelly each had two or three drinks and waited until 11:30 a.m. or noon before Schuyler decided that they would not try to work that day. Schuyler and Kelly wanted to go back to Schuyler's and get Schuyler's wife so the four of them could play pool at a bar in Stoughton. The applicant didn't want to go, but he didn't want to disappoint the other two so he agreed. The employer's van got stuck in the snow at Schuyler's house but after they dug it out, Schuyler's wife went with them to a nearby tavern, where they had more drinks.

It was between 4:30 p.m. and 6:00 p.m. when they returned to Schuyler's house. However, before leaving the Stoughton tavern, the applicant and Kelly had decided that they would return there after dropping off Schuyler and his wife at their house. Schuyler had loaned Kelly twenty dollars to spend for this purpose.

As the applicant and Kelly were walking down Schuyler's driveway to get to the applicant's car, the applicant playfully pushed Kelly. Kelly responded with a playful push back and this caused the applicant to fall and land awkwardly on his left leg, resulting in a fractured left ankle. The applicant did not know at that time that he had fractured his ankle, but he knew he had hurt it. When the applicant and Kelly got into the applicant's car the applicant asked Kelly whether he still wanted to go back to the bar, and they just decided to go home. The applicant drove Kelly back to the employer's business place in Verona and then went home.

The credible evidence demonstrates that the applicant was on his way back to the tavern when he fell on Schuyler's driveway. Accordingly, he was not in the course of his employment when the injury occurred. Even had he been on his way to take Kelly back to the employer's business place in Verona, he would merely have been performing a personal favor for Kelly, rather than any service to the employer. Schuyler, rather than the applicant, was responsible for returning Kelly back to his vehicle. The credible inference is that it would not have constituted a benefit or a service to the employer to have had the applicant, who had been drinking alcohol since approximately 9:00 a.m. that morning, drive Kelly back from Stoughton to Verona. By the time the injury occurred, the applicant had deviated from any business purpose. Accordingly, the applicant's injury sustained on December 23, 2000, did not occur in the course of his employment with the employer. The application will be dismissed.

NOW, THEREFORE, this

The Findings and Order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed March 14, 2002
johnsto . wrr : 185 : 1  ND § 3.15  § 3.25

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

In consultation with the commission, the administrative law judge indicated that she found the applicant credible when he testified that he never intended to return to the Stoughton tavern after leaving it to go to Schuyler's residence. However, Kelly credibly testified that he and the applicant had agreed to return to the bar after taking Schuyler and his wife home. Kelly indicated that he borrowed twenty dollars from Schuyler for this purpose, and Schuyler confirmed that he loaned Kelly money. He also confirmed that Kelly and the applicant "claimed" they were going back to the bar. In particular, the commission found no credible motive for Kelly to lie about these circumstances.

Furthermore, for the reasons articulated in the commission's findings, even had the applicant and Kelly been on their way back to Verona when the applicant fell, the applicant would still not have been in the course of his employment with the employer. He had deviated from any business purpose which could reasonably be construed to have constituted a benefit or a service to the employer.

cc: 
Attorney John D. Neal
Attorney Quentin F. Shafer

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