DEBRA J STONER, Applicant

CITY OF MILWAUKEE, Employer

CITY OF MILWAUKEE, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order dated December 16, 2002. The employer submitted an answer. At issue is whether the applicant's injury on December 16, 2001, arose out of her employment while performing services growing out of and incidental to her work for the employer.

The commission has carefully reviewed the entire record in this matter and hereby reverses the Findings and Order below and substitutes the following therefor:

The applicant worked for the employer for sixteen years, the last ten years as a paramedic field lieutenant, and her duties included supplying her paramedic unit, managing her crew, taking care of sick and injured patients, and preparing the patients for transportation to a hospital. On December 16, 2001, the applicant was driving to work on the freeway. As she entered the off ramp she noticed a car that had crashed in the off ramp facing the wrong direction. As she pulled over she noticed a woman who appeared to be walking aimlessly on the left side of the ramp. The applicant noticed the car had been damaged, and she felt the woman needed a medical evaluation.

Based on her training and experience the applicant believed the woman was in danger and needed a health evaluation. She credibly testified that if she had gotten to work and started her shift she would have been dispatched back to the accident scene to provide services at a later time. The applicant got out of her car and walked toward the woman and questioned her and the woman went to get her cell phone to call the sheriff's department, and while doing so another car entered the ramp and lost control. As the applicant grabbed the woman the second car hit the applicant's left hip causing her injury.

The applicant felt she had an ethical duty to stop and help the injured motorist on December 16, 2001, based on her 16 years of training. The applicant introduced into evidence a copy of a national periodical available at her station which contained an article stating that if a paramedic is off duty and comes upon an accident, the paramedic is not legally obligated to stop and assist patients; however the paramedic does have a moral and ethical duty to act because of the special training and experience. The applicant admitted this was a national publication and not a publication provided by the employer, and she also admitted that she was not aware of any employer rule which required her to assist in emergency situations when she was off of work.

The employer's Deputy Fire Chief, Mr. Frank, testified there was no requirement that off-duty paramedic's put themselves on duty to render assistance in emergency situations. Mr. Frank credibly testified the employer does not have any rules that allow a person to assist in such situations or be covered for worker's compensation when they are off of work. Mr. Frank admitted that if he had been in the applicant's shoes he would have stopped to help the woman involved in the accident on December 16, 2001, but he felt the applicant's actions in this case were above and beyond the call of duty.

To be compensable an injury must occur while the applicant is performing services growing out of and incidental to her employment Wis. Stat. § 102.03(1)(c)(1). Under Wis. Stat. § 102.03(1)(c)(2), an applicant is generally not considered to be in the course of her employment while traveling to and from work outside of the employer's premises or parking lot. In this case, the applicant was injured in an accident while stopped to assist a motorist on her way to work while not yet on the employer's premises. The evidence did not indicate the applicant was on call to provide such assistance and the employer did not have any rule requiring the applicant to provide assistance in such situations while off-duty.

Professor Larson states in his treatise, Worker's Compensation Law, ch. 27, that an act outside of an employee's regular duties which is undertaken in good faith to advance the employer's interests, whether or not the employee's own assigned work is thereby furthered, is within the course of employment, including injuries occurring in the course of miscellaneous good samaritan activities by employees on the theory that the employer ultimately profited as a result of the good will that is created. Professor Larson states the "good will" rule attains its ultimate expression when it reaches out to embrace acts of gallantry directed unselfishly toward the public in general, including instances in which the character of the employee's occupation such as that of deputy sheriff, policeman or highway patrolman strengthens the case for an award, even if the officer is off-duty or violates formal instructions by undertaking the act of assistance. Vol.2 Larson, Worker's Compensation Law, sec. 27.02(2)(b). See O'Brien v. Long Island State Parkway Comm., 13 AD 2d 855, 214 NYS. 2d 786 (1961) (where a highway patrolman helped a motorist change a flat tire and suffered a heart attack, even though the patrolman had been instructed to call a tow truck in such situations, and compensation was awarded for the patrolman's injuries.)

In our current case, the applicant was on her way to work while wearing her uniform when she stopped to help a motorist involved in an accident. The applicant's assistance to the motorist was exactly the type of duties she normally performed for the employer in assessing the victim at an accident scene and rendering assistance. The applicant credibly testified that if she had not stopped to help the motorist and proceeded on to work, she would have been shortly dispatched to the site to render the same assistance that she had earlier. In this situation, the commission finds that the applicant's activity in stopping to help the motorist on December 16, 2001, clearly benefited the employer and created good will for the employer, and was undertaken in good faith to advance the employer's interests. The applicant provided the necessary emergency service that she otherwise provided while on active duty. The fact that the employer did not require the applicant to render assistance in such situations while off-duty does not negate the fact that the employer clearly benefited by the applicant's response to the emergency situation on December 16, 2001. The applicant stopped to assist the woman on December 16, 2001, based on her 16 years of training and experience with the employer, which helped her to recognize the danger the situation presented, and to assess the woman's health situation, and save the woman from a more serious injury.

Under these facts the commission finds that the applicant's injury on December 16, 2001, occurred in the course of her employment while the applicant was performing services growing out of and incidental to her employment, and therefore is compensable. The applicant is therefore entitled to payment of medical expenses and restoration of sick leave time used from December 16, 2001 through January 30, 2002 pursuant to Wis. Stat. § 102.30(3). The medical expenses and mileage amount to $1455.53

NOW, therefore, this

The findings and order of the administrative law judge are reversed and the commission's Finding and Order substituted therefore. Within 30 days from the date of the commission's order the employer shall pay to Radke Chiropractic the sum of $1311.32 the applicant $144.21 as reimbursement for mileage. Further the employer shall restore the applicant's sick leave used for the period from December 16, 2001 through January 30, 2002 as provided in Wis. Stat. § 102.30(3).

Dated and mailed September 25, 2003
stonede . wrr : 175 : 8   ND § 3.6  § 3.23 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

cc: 
Attorney Daniel R. Schoshinski
Attorney Heidi Wick Spoerl

NOTE: The commission did not consult with the administrative law judge concerning the credibility and demeanor of witnesses, since credibility was not an issue in the commission's decision. Rather the commission reached a different legal conclusion based on the testimony and evidence presented at the hearing.

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