MARTHA O MORA, Applicant

PERRY JUDDS INC, Employer

TRANSCONTINENTAL INSURANCE COMPANY, Insurer

The employer and its insurance carrier submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on November 9, 2001. Briefs were submitted by the parties. At issue are whether the applicant sustained an injury arising out of her employment with the employer while performing services growing out of and incidental to her employment; and, if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter, and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:

The applicant, whose birthdate is May 28, 1972, began her employment with the employer on August 10, 1998. She normally parked in the upper level of the employer's outdoor parking lot, which is separated from the lower level of the parking lot by a grassy hill. The grass on the hill is well-maintained and the hill has a moderate slope as pictured in the exhibits. In the middle of the area between the two parking lot levels there is a 14-step concrete stairway which the employee and her co-workers normally use to walk between the two levels. However, on days when the applicant was behind schedule and parked in the upper level of the lot, she might choose to make up time by walking down the grassy hill rather than going to the stairway. She did this approximately one percent of the time. A co-worker indicated that the 160 first-shift employees used the grassy hill to save time with a frequency of about two percent. He indicated that he himself had used the hill very rarely, or about one percent of the time.

The morning of August 10, 1999, the applicant was running a bit late (she arrived at about 6:52 a.m. and was supposed to be on the plant floor at 6:55 a.m.). She conceded that the grass was wet at the time, apparently from the morning dew. She walked quickly from her car halfway down the grassy hill, and at that point turned to look at a shoe vendor's truck that the employer had allowed to park in the upper level of the lot. As she turned she fell, fracturing her right ankle. The applicant did not know how the fall happened.

The applicable statutory section is Wis. Stat. § 102.03(1)(c)2., which provides in relevant part that an employee is in the course of her employment when:

". . . going to and from his or her employment in the ordinary and usual way, while on the premises of the employer, or in the immediate vicinity thereof if the injury results from an occurrence on the premises . . .."

The determinative question is whether the applicant was injured while going to her employment "in the ordinary and usual way."  In Cmelak v. Industrial Commission, 22 Wis. 2d 552, 135 N.W.2d 304 (1965), the court stated:

"The words 'in the ordinary and usual way' clearly refer to the mode and route of transportation or ambulation...." Id. at 556. (Emphasis added).

The commission finds that the particular facts and circumstances of this case reveal that the applicant was not walking to the employer's entrance door in the ordinary and usual way when she was injured on August 8, 1999. She was in a hurry, and as a result chose to take a shortcut down the grassy hill. The ordinary and usual way for her and her co-workers was to walk down the concrete stairway. The fact that on only one or two percent of the occasions the applicant or her co-workers might elect to use the hill instead of the stairway, supports the inference that the hill was an unusual and out-of-the-ordinary route.

Accordingly, the commission finds that when the applicant fell on the hill on August 10, 1999, she was not performing service growing out of and incidental to her employment, because she was not going to her employment in the ordinary and usual way.

Now, therefore, this

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

Dated and mailed April 25, 2002
morama . wrr : 185 : 8   ND § 3.19

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

No issues of credibility arose in this matter. The facts were undisputed.

cc: 
Attorney Aaron N. Halstead
Attorney Jan M. Schroeder

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