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

GEORGE HOLLIDAY, Applicant

MILWAUKEE MEDICAL CLINIC, Employer

UNITED WISCONSIN, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2003-039391

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on November 22, 2004. Milwaukee Medical Clinic/Advanced Healthcare and United Wisconsin (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained an injury arising out of and in the course of his employment with the employer on September 24, 2003, and if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The applicant is a physician employed by Advanced Health Care, which is the overseeing corporation for Milwaukee Medical Clinic and Falls Medical Clinic. He is a primary care physician specializing in internal medicine and pediatrics. He spends approximately 90 percent of his work hours at his offices in the New Berlin Clinic on West National Avenue. He is not reimbursed for his travel from his home to this clinic. Approximately once every six to eight weeks, he goes to other clinics within the employer's system to see patients. It is established in the record that if he traveled from one clinic to another clinic within the employer's system, or from a clinic to a hospital, he would receive mileage reimbursement. The record fails to clarify whether mileage reimbursement would be given for the applicant's travel from his home to a hospital, or from his home to a clinic other than the New Berlin Clinic.

On September 24, 2003, the applicant was riding his bicycle from his home to St. Joseph's Hospital in Milwaukee. That morning he intended to go to a Continuing Medical Education seminar (CME) at the hospital, and also to sign a patient's chart (he had previously given a verbal order for the patient's care and needed to formalize the order by signing the chart). The applicant's patient care duties only require him to go to the hospital about once every two months. In order to maintain his physician's license he must accumulate 30 CME credits every two years, and he had attended one-hour CME's at St. Joseph's twice in April, once in May, and twice in June of 2003. On his way to the hospital he was struck by a bus that had been struck by another vehicle, and he sustained serious facial fractures and lacerations, hand fractures, a right wrist fracture, sternum and rib fractures, left hip fracture, a punctured lung, and the loss of several teeth.

Wis. Stat. § 102.03(1)(f) provides in relevant part:

(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.

Professor Arthur Larson wrote in his treatise, Larson's Worker's Compensation Law § 25.01 at 25-1 (2004 Edition) that:

Employees whose work involves travel away from the employer's premises are held in the majority of jurisdictions to be within the course of their employment . . .

The Wisconsin Supreme Court stated in Bitker Cloak & Suit Co. v. Industrial Commission, 241 Wis. 653, 656, 6 N.W. 2d 664:

It is the rule in this state that an employee, whose duty it is to travel on behalf of an employer and to do work away from the premises of the employer and who is not required to report to the premises before starting out to do this outside work, is performing services as soon as he leaves his home and starts for the first place at which he is to perform such work.

At the time the applicant was injured he was a traveling employee. His trip from his home to a premises not owned or controlled by the employer, St. Joseph's Hospital, had two purposes: one that directly benefited the employer (patient-related service); and one that indirectly benefited the employer (continuing education needed to maintain his physician's license). Thus, his employment duties required him to travel.

Respondents assert and the administrative law judge found that since both the signing of the patient chart and the attendance at the CME were activities that the applicant could have performed at another time of his own choosing (or at another place in the case of the CME), they were simply activities to be performed for the convenience of the applicant. However, the mere fact that it would have been within the applicant's discretion to have performed these activities at another time or place does not change the fact that they were work-related activities, or the fact that the applicant was on his way to perform them when he was injured.

Respondents assert that the applicant's case is analogous to the circumstances of Makal v. Industrial Commission, 262 Wis. 215, 54 N.W. 2d 905 (1952). In that case, the commission and the court denied coverage for a county engineer who was driving his own car from his home to the county garage, where he routinely parked his car and picked up a county car that he used for his work duties. The court noted that driving to the county garage was the worker's customary method of going to work, and that the garage was the first place he had to report for work. However, the applicant in our case customarily reported for work at the New Berlin Clinic, and his trip to St. Joseph's Hospital was out of the ordinary for him. In addition, he was not on his way to a premises owned or controlled by the employer.

Respondents also attach significance to the fact that the hospital did not charge the applicant or the employer a direct fee for his attendance at the CME seminar. Nevertheless, attendance at the seminar was for the purpose of maintaining the applicant's license for practicing medicine, and without that license the applicant could not perform his work duties for the employer. In addition, the record established that the employer paid the fee the hospital charges the applicant for maintaining his practice privileges at that facility, and that the CME was presented for hospital staff.

Accordingly, on July 3, 2003, the applicant was a traveling employee who sustained injuries arising out of and in the course of his employment with the employer.

The applicant was temporarily totally disabled from September 24, 2003 through January 4, 2004 (a period of 14 weeks and 5 days), and was thereafter able to return to limited duty. He was temporarily partially disabled from January 5, 2004 through March 31, 2004 (a period of 12 weeks and 3 days). The temporary total disability rate was $669.00 per week. The temporary partial disability rate may not be determined because the record does not contain a summary of the applicant's earnings between January 5, 2004 and March 31, 2004. In a post-hearing letter to the administrative law judge the applicant indicated that he received wage continuation benefits from Advanced Healthcare in the amount of $14,325.48 for the period between October 15, 2003 and December 22, 2003, and nonindustrial, long-term disability benefits from United Wisconsin Group in the amount of $11,172.73 for the period between December 23, 2003 and March 31, 2004. These payments offset the temporary total and temporary partial disability (on a week-by-week basis) otherwise due the applicant.

Given the record before the commission, the only period of temporary disability that can be accurately determined at this time is the period of temporary total disability between September 24, 2003 and October 15, 2003, when the applicant was entitled to temporary total disability with no offset for income continuation or other nonindustrial disability payments. This was a period of exactly three weeks, which at the applicable rate of $669.00 per week totals $2,007.00. This compensation will be awarded, and the order will be left interlocutory with respect to the exact amounts due the applicant and his attorney for the remaining period of temporary total disability from October 15, 2003 through January 4, 2004, subject to the week-by-week offsets for income continuation or other nonindustrial disability payments. The order will also be interlocutory with respect to calculation of the temporary partial disability due from January 5, 2004 through March 31, 2004, subject to calculation of the wages earned for these weeks, and subject to the week-by-week offset for wage continuation or nonindustrial disability payments. The applicant should make an accounting of these amounts due and present that accounting to United Wisconsin for immediate payment. Should United Wisconsin have a reasonable basis to disagree with any portion of such calculations that disagreement would have to be resolved by department adjudication. Applicant's attorney is entitled to a 20 percent fee against all amounts awarded, other than medical expenses, and is also entitled to reimbursement of costs in the amount of $148.42.

Reasonably required medical expenses will be awarded as follows: to Dr. William Connor, DDS, the sum of $692.40; to Medical College of Wisconsin the sum of $13,094.61 (an additional charge of $1,308.00 for the Medical College is penned onto the applicant's WKC-3, but because there is no explanation or invoice for this alleged charge it cannot be ordered paid); to Spinal Dynamics of Wisconsin the sum of $3,618.00; reimbursement to the applicant for medical expenses that he paid in the amount of $1,394.99; and reimbursement to Wausau Benefits, Inc. for medical expenses it paid in the amount of $163,257.68.

As of the hearing date, the applicant's physicians had not yet determined whether the applicant sustained permanent partial disability, and further medical treatment was contemplated. Accordingly, the commission's order will be interlocutory with respect to all issues.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, respondents shall pay to the applicant as compensation for temporary total disability the sum of one thousand four hundred fifty-seven dollars and eighteen cents ($1,457.18); to applicant's attorney Thomas J. Lonzo, fees in the amount of four hundred one dollars and forty cents ($401.40), and costs in the amount of one hundred forty-eight dollars and forty-two cents ($148.42); to Dr. William Connor, DDS the sum of six hundred ninety-two dollars and forty cents ($692.40); to Medical College of Wisconsin the sum of thirteen thousand ninety-four dollars and sixty-one cents ($13,094.61); to Spinal Dynamics of Wisconsin the sum of three thousand six hundred eighteen dollars ($3,618.00); to the applicant as reimbursement for medical expenses the sum of one thousand three hundred ninety-four dollars and ninety-nine cents ($1,394.99); and to Wausau Benefits reimbursement in the amount of one hundred sixty-three thousand two hundred fifty-seven dollars and sixty-eight cents ($163,257.68).

Additional temporary disability shall be paid in accordance with the above-mandated procedure.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed June 28, 2005
hollige . wpr : 185 : 8 ND § 3.25

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission's reversal of the administrative law judge's decision was based on application of the law to undisputed facts. No resolution of any factual dispute or credibility determination was necessary.

 

cc:
Attorney Thomas J. Lonzo
Attorney Douglas M. Feldman

Appealed to Circuit Court.  Affirmed March 20, 2006.

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