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

RONALD L HOERTER, Applicant

THE BAR & GRILL, Employer

CASUALTY RECIPROCAL EXCHANGE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2001056382

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on September 19, 2002. Respondents submitted an answer to the petition and briefs were submitted by the parties. At issue is whether the applicant sustained an injury to his right knee which arose out of and in the course of his employment with the employer.

The commission has carefully reviewed the entire record in this matter, and hereby substitutes its own findings for the administrative law judge's Finding of Fact, but affirms the dismissal of the application. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was employed as a bar manager for the employer, a bar and grill. He asserts that he also had an ownership interest in the bar, but has presented no credible evidence to support this assertion. The employer's owner, Howe, credibly testified that he holds the liquor and restaurant licenses for the business, as well as the building lease, and that the applicant has no ownership interest in the business. The applicant conceded that in his pending personnel bankruptcy proceeding he had not claimed any ownership interest in the bar, except for some equipment or furnishings that he bought for it. It would be speculative to find ownership of such unspecified equipment or furnishings amounts to an ownership interest in the bar.

The applicant came to the bar on the morning of August 10, 2001, with the intention of confronting Howe about the fact that Howe had arranged to have the daily cash receipts deposited in the bank instead of leaving them for the applicant to handle. The applicant and Howe got into an argument and the applicant admits that he did some chest butting of Howe (the applicant weighed about 100 lbs. more than Howe). Howe told the bartender who was there to call 911, and the applicant touched or tapped Howe on the chin and cheeks and taunted him, asking him if he was going to cry. The bartender did not call 911, and when Howe tried to go to the phone the applicant grabbed him in a bear hug to prevent it. The applicant had Howe cornered behind the bar, and Howe put a hand on his shoulder and scooted around him to escape. As he did this the applicant fell to the floor and injured his right knee.

In order for an injury to be compensable it must "arise out of the employment" (Wis. Stat. § 102.03(1)(e)), and have been sustained while the applicant "was performing services growing out of and incidental to his or her employment" (Wis. Stat. § 102.03(1)(c)). The applicant failed to demonstrate that either of these required elements was present in the circumstances of his injury. He allegedly came to the bar that morning to assert some imagined right of ownership interest over Howe. However, the credible inference is that it was a simple attempt to bully Howe into going back to the procedure of allowing the applicant to handle the cash receipts. When Howe resisted, it turned from a verbal to a physical attempt to bully. There is no credible evidence that the applicant's presence at the bar that morning had anything to do with his employment as a bar manager, or with services growing out of that employment. Rather, it arose out of a personally- motivated attempt to intimidate the owner, Howe.

Even were the incident in question found to have arisen out of the applicant's employment, it is evident that it did not occur in the course of such employment. The applicant was not performing any service for the employer at the time in question. Even if he had been performing employment-related services earlier that morning, his physical confrontation of Howe would have invoked the "aggressor defense" under Vollmer v. Industrial Commission, 254 Wis. 162, 35 N.W.2d 304 (1948). The applicant was the aggressor and did physically confront Howe by chest butting him, taunting him with taps on the face, grabbing him in a bear hug, and physically cornering him behind the bar. For all these reasons the application must be dismissed.

NOW, THEREFORE, this

ORDER

The commission's findings are substituted for the administrative law judge's Findings of Fact. The administrative law judge's ultimate finding that the application should be dismissed is affirmed. The application is dismissed.

Dated and mailed April 17, 2003
hoertro . wrr : 185 : 3  ND § 3.14  § 3.31

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


cc: 
Attorney John R. Jokela
Attorney Troy D. Thompson

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