AARON RELYEA, Applicant

AEROTEK INC, Employer

LUMBERMENS MUTUAL CAS CO, 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 May 29, 2003
relyea . wsd : 101 : 8  ND § 3.22 

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

1. Posture.

The applicant was injured in an automobile accident on March 16, 2001. At the time, the applicant was working for the employer, on a contract assignment to do computer programming at Moore Publishing in DePere. The issue on appeal to the commission is whether the applicant's injury arose out of his employment with the employer while performing services growing out of and incidental to that employment.

The applicant contends he was a "traveling employee" at the time of his injury, and thus performing service growing out of and incidental to his employment under Wis. Stat. § 102.03(1)(f). The employer and its insurer (collectively, the respondent) contend the applicant was not a traveling employee. The ALJ found for the applicant, and the respondent appeals.

2. Statute and cases.

Wisconsin Stat. § 102.03 (1)(c) and (f) provide:

"102.03 (1) Liability under this chapter shall exist against an employer only where the following conditions concur:
"(c) 1. Where, at the time of the injury, the employee is performing services growing out of and incidental to his or her employment.
"(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 supreme court has said:

"The purpose of Wis. Stat. § 102.03(1)(f) is to give traveling employees broader protection when their employment causes them to be away from home. As this court has often noted, after the court had denied compensation for injuries arising from normal living activities of traveling employees, the legislature enacted the traveling employee provision in order to expand protections for traveling employees. The statute must be liberally construed to afford coverage for all services that can be reasonably said to come within it.

"The statute creates a presumption that a traveling employee is performing services incidental to employment at all times during the business trip. In order to rebut the statutory presumption, the employer must show both that the employee deviated from the business trip and that the deviation was for a private or personal purpose that was not reasonably necessary for living or incidental thereto."

Heritage Mut. Ins. Co. v. Larsen, 2001 WI 30, ¶¶ 17-18, 242 Wis. 2d 47, 70-71. The court also noted that "`it was the intent and purpose of the act to bring border-line cases under it and to close up avenues of escape which would naturally be suggested to those seeking to evade liability under the act.' [Citations omitted.]" Id., at 242 Wis. 2d 78, ¶ 52.

The question of whether the applicant is covered as a traveling employee thus turns on two issues: (a) is he a traveling employee, and (b) if so, has the employer shown a deviation that was for a purely private or personal purpose not reasonably necessary to living or incidental thereto.

In support of its contention that the applicant was not a traveling employee by virtue of his assignment to work in De Pere, the employer cites Sauerwein v. ILHR Dept., 82 Wis. 2d 294 (1978). Mr. Sauerwein was employed by Wisconsin Telephone and was transferred to Houston for five to six months as part of an "employee loan" program between Wisconsin Telephone and Southwestern Bell. He was paid by Wisconsin Bell, but at the Houston rate, and Southwestern Bell reimbursed Wisconsin Telephone. Mr. Sauerwein was seriously injured in a swimming incident off duty about three months after moving to Texas.

The commission's predecessor denied compensation. It held that Mr. Sauerwein was not a "traveling employee." More specifically, it found that his employment, while stationed in Houston, did not require the worker to travel. According to the court, this was a finding of ultimate fact made on inferences drawn from the evidence that the worker anticipated staying in Houston for six months; that he had been there three months at the time of the injury; that he rented a furnished apartment in Houston (which he paid with a housing allowance from Southwestern Bell); that he bought and titled a car in Houston; and that he worked regular hours and was not required to travel outside the Houston metropolitan area. Sauerwein, at 82 Wis. 2d 301.

The supreme court in Sauerwein concluded that the ultimate finding of the commission's predecessor that the applicant was not a traveling employee was reasonable on the record. Because competing inferences could be drawn, the court characterized the finding as one of ultimate fact rather than a question of law, and so held the fact finding of the commission's predecessor was conclusive. However, the court specifically stated persons in "employee loan programs" should not automatically be considered not to be traveling employees. Id., at 82 Wis. 2d 302.

The employer also cites the commission decision in Carlson v. Inland Dredge, WC Case No. 93061871 (LIRC, August 30, 1996). In that case, Mr. Carlson's permanent residence was in northern Minnesota. Inland Dredge was an entity located in Burlington which did hydraulic and mechanical dredging of ponds and lakes to remove soil and sediment. Mr. Carlson had been hired in Burlington, Inland Dredge's owner lived there, and Burlington could be fairly described as the base of Inland Dredge's operations.

Mr. Carlson worked for Inland Dredge from May to December in 1989, corresponding to Inland Dredge's typical season, and returned for a second season in April 1990. In both years, Inland Dredge's owner paid for the applicant to stay at a hotel in Burlington and gave him a food allowance. Mr. Carlson would dredge ponds at various sites in southeastern Wisconsin and northern Illinois, but usually stayed overnight at the hotel in Burlington. He was seriously injured in a swimming accident off-duty one night in Burlington, after having finished a day of work dredging in that city.

In resolving Inland Dredge, the commission noted that, unlike the situation in Sauerwein, Mr. Carlson did not live in a furnished apartment but a hotel; that he did not buy or title a car in Wisconsin; and that work was not limited to the Burlington metropolitan area, rather he traveled to Illinois, Milwaukee and Madison. On the other hand, Mr. Carlson could expect to work out of Burlington for six or seven months, and had been in Burlington for three months by the time of his accident.

The commission also noted that while Mr. Carlson was required to travel outside of Burlington for work assignments, he was not "traveling" when he worked in Burlington. The commission noted that Wis. Stat. § 102.03(1)(f) refers to "employment requiring the employee to travel" and states that the special "traveling employee" characterization applies whenever the employee "is on a trip." Noting, too, that Burlington was the base to which Mr. Carlson returned when he was traveling, and not a stop on the applicant's itinerary of work assignments, the commission concluded that Mr. Carlson was not "on a trip" when injured so Wis. Stat. § 102.03(1)(f) did not apply.

3. Discussion.

The commission concludes that the applicant in this case, unlike the workers in Sauerwein and Inland Dredge, was "traveling employee" and "on a trip" when injured. First, the applicant was injured three weeks in an assignment that was to last a month, possibly longer; he was not three months into a six-month assignment. Second, the employer itself did not operate from De Pere; that is where Moore Publishing, the employer's client, was located. Third, the record indicates that had the applicant obtained another assignment from the employer, he may well have been sent to another city -- the employer's business is to provide programs to clients wherever they are located. Fourth, while the applicant acknowledged he was not paid mileage, and that he did not charge for meals, per se, he did receive a per diem which Becky Lehman, an account representative for the employer testified were given to help out employees if they are outside a 50-mile radius of their primary residence. Finally, the applicant did not change his residence and moved little, if any, of his personal property to DePere, a distinction from the worker in Sauerwein who bought and titled a vehicle in Texas.

In sum, the applicant was "on a trip" unlike either Mr. Carlson or Mr. Sauerwein. Their cases involved longer, definite durations of employment. In Inland Dredge particularly it seems as if it was simply Carlson's choice to live in Minnesota rather than Burlington. Here, there is no reason to expect that the applicant either relocate to De Pere or even expect he would stay there long. Further, the applicant's employment, if he continued to work for the employer, would have involved periodic reassignment.

Assuming the applicant was a "traveling employee," the last question is whether the employer showed the applicant's car excursion off-premises to have a cigarette was "a deviation that was for a purely private or personal purpose not reasonably necessary to living or incidental thereto."

The commission concludes the applicant was not injured during "a deviation that was for a purely private or personal purpose not reasonably necessary to living or incidental thereto."  Smoking a cigarette during an employment break may, like eating or sightseeing, (1)  be described as reasonably necessary or incidental to living while on a business trip.  Smoking is not illegal, and breaks from work, including cigarette breaks, are reasonably necessary to living. In his treatise, Professor Larson--discussing the personal comfort doctrine (2)  -- notes that practically all the cases hold that smoking in and of itself does not constitute a departure from the employment. 2 Arthur Larson & Lex K. Larson, Workers' Compensation Law § 21.04 (LEXIS NEXIS, 2002). (3)

cc: 
Attorney Michael D. Stotler
Attorney Gregory Meyer

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

(1)( Back ) See: Wisconsin Elec. Power v. LIRC, 226 Wis. 2d 778, 790-796 15-25 (1999).

(2)( Back ) Because it is not necessary, the commission does not discuss the personal comfort doctrine as a possible separate basis for compensation apparent from the traveling employee statute.

(3)( Back ) The professor's treatise quotes from Whiting-Mead Commercial Co. v. Industrial Acc. Comm'n, 178 Cal. 505, 173 P. 1105, 1106 (1918): 

"Are we to place the use of tobacco in this list of ministrations to the comfort of the employed? Is its use necessarily contemplated in the course of such an employment as that in which Duarte was engaged? The petitioner, in answering these questions in the negative, places great dependence in the argument that tobacco is used to appease a self-created appetite and not a natural appetite. The argument does not appeal to us.... We have the tobacco habit with us, and must deal with it as it is.... Tobacco is universally recognized to be a solace to him his uses it, and it may be that such as a one, unless he finally shakes off the habit, cannot perform the labor of his life as well without it as with it." 

uploaded 2003/06/06