JAMES PATRICK SHATTO, Applicant
COUNTY OF DANE, Employer
COUNTY OF DANE, Insurer
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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed November 29, 2002
shattoj . wsd : 101 : 8 ND § 3.6 § 3.11 §
3.12 § 3.25
/s/ David B. Falstad, Chairman
James A. Rutkowski, Commissioner
/s/ Laurie R. McCallum, Commissioner
1. Facts and posture.
The issue in this case is whether the applicant, who was injured in a motorcycle accident, was performing services arising out or incidental to his employment with the employer when the injury occurred.
The applicant was a community youth worker, whose job involved contacting and supervising juvenile offenders at home, school or work, as an alternative to incarcerating the offenders. The formal work hours were 2:00 p.m. to 10 p.m., which of course corresponds to the juveniles' likely free time. In practice, however, the youth officers varied from these hours, to respond to a juvenile in need or for a court appearance; indeed, the employer expected the workers to do so.
Community youth workers start the day at the employer's office, but were not required to return to the office at the end of the day. They also were expected to have "on call" days, when they were expected to be available at short notice to handle emergencies on a 24-hour basis. The applicant frequently did his calls on a motorcycle. The employer had no problem with this mode of transportation.
On August 14, 2000, the applicant and a friend, Paton, rode their motorcycles from the applicant's home in Stoughton to Madison, where the men stopped first at a motorcycle dealership (Engelhart's) and then to visit a mutual friend. The men then proceeded to the City-County building in downtown Madison, where the applicant did some paperwork. The applicant, accompanied by Paton, then made work-related calls on two juveniles. The second call was on Topaz Street on the east side of the city.
After the second call, the applicant and Paton stopped for lunch and at a different motorcycle dealership (Barr's) on an errand for Paton. Both stops were on or near US Highway 51, which was the route back to the applicant's home in Stoughton from Topaz Street in Madison. After the errand at Barr's, the applicant was severely injured in an accident while traveling south on US 51 when a car turned left in front of his motorcycle. At the time of the accident, the men were on the most direct route from Topaz Street to Stoughton, but had previously planned to exit US 51 a mile or so past the scene of the accident to travel west on US Highways 12 and 18 (the "Beltline") on a personal errand at Engelhart's.
2. The law.
Workers normally are not "performing services arising out of or incidental to their employment" while commuting to and from work. However, the statutes provide for a different rule for workers whose employment requires them to travel off the employer's premises. Specifically, Wis. Stat. § 102.03(2)(f) provides:
"102.03(2)(f) Every employee whose employment requires the employee to travel shall be deemed to be performing service growing out of and incidental to the employee's employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of the employee's employment."
The department's interpretative footnote provides:
"9 Accident or disease must arise out of a hazard of employment, and accidents and diseases not caused by reason of incidents of service are not to be compensated. Injuries, whether accidental or otherwise, must therefore arise out of the business circumstances of the trip and not merely occur because of a personal condition or disability bearing no relation whatsoever to service."
DWD Worker's Compensation Act of Wisconsin with Amendments to January 1, 2002, WKC-1-P (R. 07/2002).
In this case, the briefs of the parties raise the dual nature of the applicant's trip into town on the day he was injured, part social, part business. When a trip serves both a personal and business purpose, the "dual purpose doctrine" is implicated. A helpful discussion of the dual purpose doctrine in conjunction with a deviation from employment is found in Sauerwein v. ILHR Dept., 82 Wis. 294, 302-03, where the court states:
"In Barragar v. Industrial Comm., 205 Wis. 550, 238 N.W. 368 (1931), this court endorsed the following explanation of the dual purpose doctrine:
`We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. . . . The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. If, however, the work has had no part in creating the necessity for travel if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose though the business errand was undone, the travel is then personal, and personal the risk.' Barragar at 205 Wis. 554, 555, quoting Matters of Marks v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929).
"In the same case this court also stated that,
'In case it is the employer's trip and there are any detours for purely personal objectives, such detours must be separated from the main rip and the employee held to be outside the scope of his employment during such detour.' Barragar at 205 Wis. 553.
"Assuming arguendo that the applicant's trip comes within the dual purpose doctrine, that doctrine does not mean that an employee will be covered by worker's compensation during the entire dual purpose trip. The employee is not covered while pursuing purely personal objectives. At the time of this applicant's injury he was pursuing personal objectives, swimming and socializing with his friends. The applicant is not entitled to worker's compensation based on the dual purpose doctrine.
The Sauerwein court continued:
"The case of Olson v. Industrial Comm., 273 Wis. 272, 77 N.W.2d 410 (1956) does not call for a contrary result. In that case, the applicant drove his employer's truck from Blair, Wisconsin to Claremont, Minnesota to pick up a load of shelled corn. After the corn was loaded, the applicant spent two hours drinking beer, purchased at a liquor store, and then got into a fight with another man, named Marsolic. Both men were arrested, but Marsolic resisted arrest. While the police officer was putting Marsolic in jail, the applicant got in his truck and drove away, toward Blair. The applicant's truck overturned fourteen miles away, and he was seriously injured. He was allowed worker's compensation benefits.
"In Olson, supra, this court reasoned that the applicant deviated from his trip by stopping at the liquor store, but returned to the purpose by starting the return journey to Blair. The applicant in Olson would not have been entitled to benefits if he had been injured while pursuing personal objectives and the same result must follow here."
Sauerwein, at 82 Wis. 303-04. To summarize: where a worker would make the trip in the absence of the motive for personal detours, the trip the worker is "in the course of employment" during the trip under the Sauerwein/Barragar test and Wis. Stat. § 102.03(2)(f), except while the applicant was engaged in a deviation for personal purposes.
However, under Barragar, any detours from business must be separated out from a dual purpose trip, and the employee held to be outside the scope of employment during the deviation. On the other hand, a deviation does not completely end the business nature of the trip; a worker may end the deviation and resume the business trip. Olson. See also Tyrell v. Industrial Commission, 27 Wis. 2d 219, 225-227 (1965). In other words, "if there is a deviation the employee must return to his course of employment -- the most reasonably direct route for a traveling salesman -- at the time of injury in order that a recovery may be had." Tyrell, at 27 Wis. 2d 226.
If a deviation ends when a traveling employee returns to the most reasonably direct route, when does the deviation begin? Tryell, at 27 Wis. 2d 226, states:
"In respect to deviation, there must be a meaningful manifestation to engage in activities purely personal to the employee."
In his treatise, Professor Larson sets out numerous examples of deviations or personal side trips. See 1 Arthur Larson and Lex K. Larson, Larson's Workers' Compensation Law § 17.01, et seq. (MB 2002). (1) To summarize the relevant points in the treatise's lengthy discussion:
3. Discussion.
In this case, the ALJ found that the applicant and Paton were on the most direct route to the applicant's home in Stoughton from the applicant's last call, and that applicant was not engaged in a deviation, at the time of the injury. He accordingly found the applicant to be in the course of employment when the injury occurred, and awarded compensation. The employer and its insurer (collectively, the respondent) appeal.
The commission begins by acknowledging personal motives played some role in the applicant's trip to Madison on August 14, 2000. However, the most reasonable inference is that the applicant -- who had client calls in Madison on the date of injury -- would have made the trip even if Paton had not been in town and the motive for the personal detours were absent. Thus, the applicant's trip to Madison and back would be in the course of employment under the Sauerwein/Barragar test and Wis. Stat. § 102.03(2)(f), except while the applicant was engaged in a deviation for personal purposes.
The respondent does not deny that the applicant's job required him to travel. Indeed, the respondent acknowledges that the mere fact that the applicant was intending to stop at Engelhart's at the time of his injury does not mean the injury could not be compensable. Rather, the respondent agrees that if the applicant had been driving to southwest Madison to see a juvenile, which would require driving on the Beltline, an injury on US 51 could be in the course of employment though the applicant would have eventually deviated by leaving the Beltline to go to Engelhart's en route. See brief of respondent dated July 17, 2002, page 10.
Of course, the same reasoning could apply if the applicant intended to go home after going to the side trip to Engelhart's. Wisconsin Stat. § 102.03(2)(f) provides that a worker is deemed to be performing service growing out of and incidental to the employee's employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Had the applicant been going home after the stop on Topaz Street, he would have been on US 51 anyway. Any deviation from that route would not begin until he exited US 51 to get on the Beltline.
However, the respondent contends that the applicant's injury was not compensable as the facts do not establish what the applicant would have done after going to Engelhart's. As a result, the applicant has not established whether travelling south on US 51 was covered travel occurring before a deviation, or whether the entire trip was a deviation. For example, if the applicant had another call on the northeast side of Madison, he might never have been going south on that stretch of US 51 the rest of the day except as part of a deviation for personal purposes.
In other words:
"Mr. Shatto admitted he did not know where he was going after Engelhart. If he were to visit a client back in the direction northeast, the trip to Engelhart would be a clear deviation. Because Mr. Shatto does not know, and we do not know where he was going after Engelhart, it is simply a matter of speculation as to whether the stretch of Highway 51 on which Mr. Shatto was injured placed him in the course of his employment."
Respondent's brief dated July 17, 2002, page 10. The respondent asserts, too, that it is unsupported that the applicant was on a direct route home from his last client visit when injured. The respondent characterizes the finding as based on pure speculation, and an unsubstantiated fact added by the ALJ to the record.
However, like the ALJ, the commission concludes that the applicant was on the route to his home from the last call on Topaz Street -- prior to a planned deviation -- when he was injured. Like the ALJ, the commission also credits Paton's testimony that the applicant was done for the day (Transcript, pages 33-34) and that the men intended to return to the applicant's home after the trip to Engelhart's (Transcript, pages 21-22 and 36-37.)
Paton testified credibly, on direct and cross-examination, that the applicant had finished his calls and that the men intended to return to the applicant's home after the trip to Engelhart's. In contrast, the applicant has only a hazy idea that he had more business that day in Madison (Transcript, pages 86, 97-98) -- and his memory no doubt could have been affected by the trauma of the accident. Indeed, he did not really recall the meetings that actually did occur. (Transcript, page 97-98.) The applicant also indicated that had there been other calls that day, he'd have told Paton about them in advance. Transcript, page 107. Finally, the applicant's supervisor testified, and he provided no evidence of any other calls that day.
In other words, while an employee is not in the course of employment during a deviation for personal purposes during a business trip, the applicant in this case had not yet reached the point where the deviation would have occurred -- the junction of US 51 and the Beltline -- when he was injured. Under the case law, and the persuasive authority of Professor Larson's treatise, the applicant was in the course of employment when injured.
cc:
Attorney Robert T. Ward
Attorney Joseph Danas, Jr.
Appealed to Circuit Court.
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(1)( Back ) Professor Larson's treatise, while of course not binding, is usually regarded as persuasive, particularly on the "traveling employee" issue where the supreme court has quoted it with approval. See Horvath v. Industrial Commission, 26 Wis. 2d 253, 260 (1965) and Schwab v. ILHR Department, 40 Wis. 2d 686, 694 (1968).
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