P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 2000-027319

In September 2001, the applicant filed an application seeking compensation for an injury occurring on May 25, 2000. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on August 20, 2002, with a close of record on October 21, 2002.

Prior to hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $688.60. The threshold issue to be resolved by the ALJ was whether the applicant sustained an injury arising out of his employment with the employer while performing services growing out and incidental to that employment. If such an injury were established, ancillary issues included the nature and extent of disability and the respondent's liability for medical treatment expense. The ALJ issued his decision dismissing the application on November 4, 2002.

The applicant filed a timely petition for review. 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 makes the following:


The applicant was born in 1977. He began working in shipping and material handling for the employer in 1998. He suffered a patellar dislocation on May 25, 2000, when he slipped while playing softball with some other employees on the employer's premises during a paid 20-minute break.

The employer allowed its workers to go outside during breaks. While it had recently forbidden smoking, it did not otherwise restrict the employee's activity during breaks. The employer provided a basketball hoop outside for the workers to use during breaks and posted a notice so informing its workers in early May (transcript, pages 25, 28-31.) However, the employer did not organize the softball game. Rather, the workers themselves brought the softball equipment, and played in the area where the basketball hoop was.

The applicant himself had played basketball on break before his injury, and softball on one prior occasion. Transcript, pages 12 and 32-33. The workers had been playing softball for a "short period of time," starting "when the weather broke nice" after smoking was prohibited. Transcript, page 11. Thereafter, the applicant testified without contradiction, workers frequently played basketball and softball on their breaks without objection from the employer or supervisors. Transcript, page 34. After the applicant was hurt, the employer took down the basketball hoop and no longer allowed any kind of sports during breaks. Transcript, page 39.

The respondent contends that the applicant was not performing services growing out of or incidental to his employment with the employer when he was injured. Stated more prosaically, the respondent contends the applicant was not in the course of employment when he was hurt. On this point, the employer cites two cases discussing injuries during recreational activities: State Young Men's C. Asso. v. Industrial Commission, 235 Wis. 161 (1940) and Schwab v. ILHR Department, 40 Wis. 2d 686 (1968).

In State Young Men's, a camp counselor hurt his knee while playing tennis on camp grounds during his off hours. The Industrial Commission awarded compensation, but the supreme court reversed, rejecting both the arguments that (a) allowing counselors to play tennis off-duty benefited the employer as "morale building," and (b) because he was subject to call when injured, he was necessarily "so related to employment to keep him in service." In rejecting the second argument, the court specifically noted:

But to include the acts of an employee when off duty and when attending to business pertaining strictly to his own private affairs . . . would be to enlarge the meaning of the statutory words beyond their reasonable import, and to constitute every act of an employee subject to a call for duty an act within the scope of his employment though performed in a matter purely personal to himself.

Id., at 235 Wis. 164. The court went on to state:

The employment must establish the limits of the risk. Exactly as the working man is entitled to his wages, so he should be entitled to indemnity for the injuries sustained in the natural course of his labor. This excludes injuries sustained when off duty and while the relation of employment does not operate upon him by requiring him to do anything or be in a particular place. He then conducts himself according to his own wishes, sets the stage himself, and controls the elements that constitute the hazard. Where there is no evidence that at the time the injury was received the claimant was engaged in any work for his employer, a finding is not warranted that the injury arose out of and in the course of his employment.

Id., at 165-66.

Of course, the injured worker in State Young Men's was on call, not on a twenty-minute paid break. Further, simply because the applicant was not actually engaged in productive work when injured does not, any longer at least, automatically mean an injury is not compensable. For example, injuries on break may be compensable under the personal comfort doctrine. (1)

Indeed, as the applicant points out, the court of appeals held that the supreme court implicitly overruled State Young Men's, at least to the extent it implied that any deviation to "exercis[e] a personal privilege apart from any interest of the employer, the nature of which cannot be considered as being for the benefit of the employer... [does] not arise out of and in the course of employment." Bruns Volkswagen, Inc. v. DILHR, 110 Wis. 2d 319, 322-24 (Ct. App. 1982). Rather, the court of appeals reasoned that since the supreme court had adopted the "momentary deviation" test permitting the payment of compensation in "curiosity cases" in Maahs v. Industrial Comm., 25 Wis. 240 (1964), the same rule should apply in horseplay cases, too. The supreme court later agreed, noting it had

"moved away from the harsh rule that any deviation from employment would prevent an award of benefits and adopted the rule that an impulsive, momentary, and insubstantial deviation will not bar recovery."

Nigbor v. DILHR, 120 Wis. 2d 375 (1984).

The respondent counters that while the supreme court may have abandoned its rule that "any deviation" is not compensable for a rule that allows compensation of momentary deviations in some situations, that does not mean that all deviations tangentially connected to employment are automatically compensable. On this point, the respondent cites Schwab v. ILHR Department, 40 Wis. 2d 686 (1968), where a worker was fatally injured while driving home from a supervisory get- together held on the invitation of the employer's personnel manager at a lodge off-premises which included a happy hour and dinner. The commission held that at the time of his injury, Mr. Schwab was not performing services growing out of and incidental to his employment.

In affirming the commission's decision, the court quoted at length from the section of Professor Larson's treatise. In particular, the court noted Professor Larson's observation that:

And so, just as in the sleeping and eating cases some arbitrary time and space limitations must circumscribe the area within which the benefit [to the employer from having a well-rested, well-fed worker] establishes work-connection, the recreation cases must submit to some similar limitation, since otherwise there is no stopping point...

Schwab, 40 Wis. 2d at 692, citing 1 Larson, Law of Workmen's Compensation, p. 375, sec. 22.30. The quoted language remains in the treatise at 2 Arthur Larson & Lex K. Larson, Larson's Worker's Compensation Law § 22.05[3] (LEXIS NEXIS 2003).

Of course, the off-duty and off-premises activity in Schwab can reasonably be distinguished in terms of the "arbitrary time and space limitations" from on-premises recreation during a twenty minute paid work break. Professor Larson separately addresses the question of a recreational injury occurring on an employer's premises during a lunch or break period in an earlier section of his authoritative treatise, at 2 Larson § 22.03.

According to Professor Larson's treatise, "recreational activities during the noon hour on the premises have been held compensable in the majority of cases," 2 Larson § 22.03[1], at least where the activity has persisted long enough that a reasonable employer would be aware of it so that it has become an incident of employment, 2 Larson § 22.03[2].  The Larson treatise goes on to state that while some courts have additionally required an employer benefit or a showing that participation in the sporting activity was compelled by the employer, the "better rule" and the one adopted by the treatise, is that recreational activities are within the scope of employment when one of at least three possible alternative conditions is met:

(1) [The recreational activities] occur on the premises during a lunch or recreation period as a regular incident of employment; or
(2) The employer by expressly or impliedly requiring participation, ... brings the activity within the orbit of the employment; or
(3) The employer derives substantial and direct benefit from the recreational activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

2 Larson, § § 22.01, 22.03.

The first question, then, is whether it is reasonable to follow Professor Larson's lead on this issue. The commission believes it is. First, as outlined above, Wisconsin appellate courts have moved away from denying benefits based on "any deviation." Further, the Schwab court specifically referred to Professor Larson's treatise in discussing the related question of whether off-duty, off-premises recreational activities are within the course of employment. Likewise, the Wisconsin appellate courts have specifically cited Larson's treatise in the conceptually-related horseplay cases (Bruns and Nigbor) and personal comfort doctrine cases (Marmelejo and Fry). Under these circumstances -- where the supreme court has relied on Larson's treatise on one issue -- the court of appeals has concluded that the supreme court would accept Larson's view on a separate but closely-related issue. Bruns, at 110 Wis. 2d 324.

The second question is a factual one. The softball activities occurred on the employer's premises during a lunch or recreation period. Did they also occur "as a regular incident of employment?" This question must be answered affirmatively as well.

It is clear from the Larson treatise that recreational activity need neither be compelled by the employer, nor benefit the employer, to be an incident of employment. In addition, Larson acknowledges that there is no precise formula as to how long the recreation must have occurred to become an incident of employment:

It has been suggested that it should be at least long enough for a reasonable employer to become aware of it. On the other hand, it should not be necessary to show actual knowledge or acquiescence by the employer. The test is whether the activity has in fact become an incident of employment, if it has persisted long enough to do so the employer's ignorance of its existence does not destroy the fact of its existence.

2 Larson, § 22.03[2].

In this case, the employer had put up a basketball hoop and posted a notice inviting its employees to use it during paid breaks. That establishes unquestionably that sporting activity in some form was a regular incident of employment. Moreover, the record indicates that while the employer may not have been aware that the applicant specifically was playing softball, other employees had been playing softball on the employer's premises for some time. Transcript, pages 11, 34. Further, the employer's affirmative act in putting up a basketball hoop and inviting employees to play hastened the point that the employer should have known that other sporting activities were occurring on its premises.

While the applicant had played softball only once before he was injured on May 25, 2000, the applicant's credible testimony establishes that other employees had played frequently over the preceding few weeks since early May. Thus, even if it must be shown that softball playing during the breaks, as opposed to basketball playing, was incident to employment for the applicant's injury to be covered, that showing has been made.

The amounts of the applicant's claim for compensation are not in dispute. In particular, the respondent did not take issue with the period of temporary disability claimed, May 26 through July 21, August 3, August 9, August 10, and August 23, 2000. That amounts to eight weeks and five days which, at the weekly rate of $459.07 (two-thirds of the conceded average weekly wage of $688.60), totals $4,055.09.

The respondent documented short-term disability payments of $76 per day, totaling $3,166 in gross, (2)   coinciding with much of the period of temporary disability. Because the short-term disability payment rate is less than the total disability rate, and because the applicant apparently consents to the deduction under Wis. Stat. § 102.30(7), the short-term disability payments shall be subtracted from the award for temporary disability, leaving a net award for temporary disability of $939.09.

The applicant's doctor, H. L. Ericson, M.D., rated permanent partial disability at four percent at the knee for pain and loss of endurance from the applicant's patellar dislocation. The respondent offers no competing rating. Under Wis. Stat. § 102.52(11), a four percent rating at the knee equates to 17 weeks of permanent partial disability compensation at the weekly rate of $184 (the statutory maximum for injuries occurring in 2000). In sum, the applicant is entitled to $3,128 for permanent partial disability, all of which is accrued.

The applicant agreed to an attorney fee set under Wis. Stat. § 102.26 at twenty percent of the disability compensation awarded, or $813.42 {0.20 times ($939.09 plus $3,128)}. That amount, plus costs of $128.59, shall be deducted from the award and paid to the applicant's attorney within 30 days. The remainder due the applicant within 30 days is $3,125.08.

The applicant documented reasonable and necessary medical expenses to cure and relieve the effects of his work injury as follows: from St. Mary's Medical Center, a total of $ 3,750.57, of which the insurer paid $3,149.16, the applicant paid $120.88, and $480.53 remains outstanding; from Racine Radiologists, a total of $287, of which the insurer paid $20.95, the applicant paid $37.05, and $40 remains outstanding; from All Saints Medical Group $505, all of which is outstanding; and from Racine Emergency Physicians, $166.15, all of which is outstanding. In addition, exhibit 1 documents five payments toward an unnamed medical expense of $40.20 each by the insurer and $7.10 each by the applicant, totaling $201 and $35.50 respectively.

The employer is self-insured for medical expense. The commission assumes the employer paid the $3,166 in short-term disability compensation as well. Consequently, at the parties' request, the commission shall not order reimbursement to any non-industrial insurer for medical expenses paid or disability payments made.

Finally, while Dr. Ericson does not expect further treatment, he indicated the applicant's prognosis was only fair. The commission therefore reserves jurisdiction under Wis. Stat. § 102.18(1)(b) to permit payments of medical expense or additional disability that may arise in the future.

NOW, THEREFORE, the Labor and Industry Review Commission makes this


The findings and order of the administrative law judge are reversed. Within 30 days of the date of this order, the employer and its insurer shall pay all of the following:

1. To the applicant, Three thousand one hundred twenty-five dollars and eight cents ($3,125.08) in disability compensation.
2. To the applicant's attorney, a total of Eight hundred thirteen dollars and forty-two cents ($813.42) in fees and One hundred twenty-eight dollars and fifty-nine cents ($128.59) in costs.
3. To St. Mary's Medical Center, Four hundred eighty dollars and fifty-three cents ($480.53) in medical treatment expense.
4. To Racine Radiologists, Forty dollars ($40) in medical treatment expense.
5. To All Saints Medical Group Five hundred five dollars ($505) in medical treatment expense.
6. To Racine Emergency Physicians, One hundred sixty-six dollars and fifteen cents ($166.15) in medical treatment expense.
7. To the applicant in out-of-pocket medical expenses, One hundred ninety-three dollars and forty-three cents ($193.43) in medical treatment expense.

Jurisdiction is reserved for further orders and awards as may be warranted and are consistent with this order.

Dated and mailed August 28, 2003
hetcher . wrr : 101 : 8 ND 3.21A 

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


The commission's reversal of the ALJ's decision does not depend on a different view of witness credibility, but because it reached a different legal conclusion on the same set of facts. Accordingly, a credibility conference was not required. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972); Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 615-16 (Ct. App. 1998).

Attorney Thomas W. Durkin
Attorney M. Christine Cowles

Appealed to Circuit Court.  Affirmed February 27, 2004.  Appealed to the Court of Appeals. Affirmed December 22, 2004, sub nom. Styberg Engineering et ano. v. LIRC and Hetchler, 2005 WI App 20, 692 N.W.2d 322 (#04-1039, 2004-12-22). Petition for review denied.

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(1)( Back ) Normally, under the personal comfort doctrine, a worker on a coffee break, a smoking break, or going to the restroom or for a breath of fresh air does not deviate from employment if he or she is on the employer's premises, unless the extent of the departure is so great as to an intent to abandon the job temporarily may be inferred. Neal & Danas, Worker's Compensation Handbook 3.9 (5th ed. 2003). Adopting the rule set out in Professor Larson's treatise, the supreme court has stated: "Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily can be inferred...." Marmolejo v. DILHR, 92 Wis. 2d 674, 680 (1979); Fry v. LIRC, 2000 WI App 39 15, 239 Wis. 2d 574, 589. Thus, while the applicant admitted on cross-examination that he could not see how being on break could benefit an employer, that does not end the inquiry.

(2)( Back ) The commission bases the offset against temporary total disability on the gross payment of the non- industrial payment. Holborn v. Supervalue Inc., WC Claim No. 2000009429 (LIRC, August 15, 2001). As noted in Neal & Danas, Worker's Compensation Handbook 5.13 (5th ed., 2003), an applicant may have to file amended returns to recoup the tax payments withheld from payments under the non-industrial policy.


uploaded 2003/09/26