JANICE L TALOFF, Applicant

R L HAIR DESIGNERS INC, Employer

FRANKENMUTH MUTUAL INS CO, Insurer

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. Based on its review, the commission agrees with the Department's decision and adopts the findings and order of that decision as its own.

The findings and order of the administrative law judge are affirmed. The application is dismissed.

Dated and mailed April 11, 2003
talofja . wsd : 185 : 9 ND § 3.19

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner

The commission agreed with the administrative law judge that Rose Labinski was credible when she testified that she never told the applicant she was supposed to park in the city lot across the alley behind the employer's building. In addition, the employer exercised no control over this city-owned lot. Approximately eight years prior to the hearing, the employer made a request to the city to change a section of the lot to three-hour parking, and that request had been granted. However, the fact that the city deemed it appropriate to make this change does not translate into dominion or control over the lot by the employer.

Furthermore, the commission rejects the applicant's argument that an "employer's designated parking lot," as that phrase is used in Wis. Stat. § 102.03(1)(c)2., merely refers to a lot that has been "selected or pointed out" by the employer. As noted in Jaeger Baking Co. v. Kretschmann, 96 Wis. 2d 590, 292 N.W.2d 622 (1980), the 1971 statutory amendment which created coverage for employees going between "an employer's designated parking lot" and that employer's work premises was contemplated by the Legislature to be a narrow exception. Id. at 598. The court noted:

". . . it is apparent that the legislative intent in amending the statute was to cover employees injured while going directly from the one portion of the employer's premises to the other." (emphasis added) Id. at 597- 98.

Adopting the applicant's interpretation of the statute would constitute a change not found anywhere in the history of, or intent behind, Wisconsin's "coming and going" statutes. The applicant's proposed interpretation would result in coverage which would bear no relation to the question of whether the employee had been injured after he/she had reached the employer's premises (in this instance an employer- owned-or-controlled parking lot). Jaeger Baking appropriately cautions against such "unwarranted broadening of coverage" and plainly identifies the intent of Wis. Stat. § 102.03(1)(c)2., in the following sentence:

"Protection is afforded by the statute for the journey undertaken by an employee when he is going between two portions of the employer's premises when one of such portions is the employee parking lot." (emphasis added) Id. at 598.

Accordingly, even had Ms. Labinski verbally "selected or pointed out" the city lot as an appropriate place for the employee to park her vehicle, a factual assumption which the commission does not find credible, such action alone would not have been sufficient to have transformed the lot into "the employer's designated parking lot," as contemplated in the statute. An employer must own the parking lot in question, or exercise sufficient elements of dominion and control over it, in order for it to acquire the status of an employer premises.

cc: 
Attorney Robert T. Ward
Attorney Paul R. Reigel

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