DANIEL K FAY, Applicant
TREK DIAGNOSTIC SYSTEMS INC, Employer
ST PAUL FIRE & MARINE INSURANCE 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 July 28, 2005
fayda . wsd : 101 : 8 ND § 3.23
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The applicant was a process engineer with the employer. The employer makes medical equipment. Part of the applicant's job was to make sure the equipment worked properly. He had only been working for the employer when he was injured in a car accident on his way to work on October 6, 2003. The applicant contends that the facts of this case make his trip to work covered employment rather than a simple commuting trip outside the scope of employment under Wis. Stat. § 102.03(1)(c).
At the time of injury, the applicant had been assigned work on a machine that put stirring rods in test tubes, but which was not dropping the rods in the tubes correctly. In order to try to get the machine to operate properly, he videotaped it in operation. He used a digital video camera, specifically his own digital video camera, because the employer did not have one.
The applicant also used specialized computer software to do his job, including a CAD (computer-aided design) program. The desktop computer he had when he started working for the employer was inadequate. He asked the employer about getting a computer upgrade, and was told to go ahead and buy a desktop that would suit his needs. He testified he did the research for the best deal, and visited various stores, on his own time. He then bought a desktop with his own credit card, and was subsequently reimbursed by the employer. The applicant brought the desktop to work on Thursday, October 2, 2003 or Friday, October 3, 2003.
Meanwhile, the employer supplied the applicant with a laptop computer. It did not, however, have the capability to transfer the video images from the video recorder to the laptop itself. Instead, he used his home computer for that purpose. The applicant also had the CAD software on his home desktop. He asked to buy some CAD software to use at work, but the employer apparently told him to wait until the new desktop computer was set up. As a result, the applicant testified, in order to use the CAD program for his job, he had to use his home computer.
The applicant brought the laptop home Friday, October 3, 2003. Over the weekend of October 4 and 5, 2003, the applicant testified, he did four or five hours of work at home. He said he worked with the videotapes (October 6, 2004 transcript, page 36), and used the laptop (id., at page 37.) It is not clear from this testimony whether he used his home computer system or the CAD program on his computer, however.
Moreover, when asked on cross-examination whether he had used his computer, the applicant acknowledged he did not know what he used the computer for over the weekend of October 4-5, 2003. December 1, 2004 transcript, page 38. (1) His response on cross suggests he is not even sure that he used his computer for work that weekend. He testified he could not check his computer to find out what files he accessed on his computer over the weekend of October 4-5, 2003 because he no longer has the computer.
On Monday, October 6, 2003, the applicant was injured in a car accident on the way to work. The accident, he testified, occurred because the laptop computer and other employment-related material he had in the front seat started to slide, and he reached over to keep them from falling. The car veered to the right as he reached over, and then he overcorrected and went into the left lane, striking another car.
The applicant's main contention is that the accident while on the way to work should be considered to have been in the course of his employment with the employer based on an application of "dual purpose" or "mixed-purpose" doctrine, discussed at length by a leading commentator on workers compensation law. 1 Larson's Workers' Compensation Law § 116.10[1] et seq (LEXIS NEXIS 2005).
Normally, trips to and from work -- commuting trips -- are not considered to be in the course of employment subject to certain exceptions (when the trip is paid or the worker needs his car for work) not present here. Doering v. LIRC, 187 Wis. 2d 472, 523 N.W.2d 142 (Ct. App. 1994). However, if a worker would have made the trip home for business purposes even if the usual personal purpose of going home disappears, then trip is compensable even though it coincides with a personally-motivated trip home. Larson, at § 116.10[1]. Thus, if the applicant did work at home that he could not have done at the employer's place of business -- that is, if the trip home for the business purpose to do work on the computer application would have occurred even without the personal purpose of returning home -- then the trip both ways from work to home should be covered. On the other hand, Professor Larson adds that if the employee works at home merely for his own convenience, the commuting trip is not covered, (though the actual performance of work may be). Id., at 116.10[3].
In particular, the treatise states:
"We have now established that there are two purposes on the homeward trip: the personal purpose of making a normal trip home, and the business purpose of reaching a second employment situs. It only remains to apply the dual purpose test, which in simplest terms is the question: would the trip to this second business situs (the home) have been made even if the usual personal purpose of going home had in some way disappeared? If it would have, the fact that it coincided with a personally motivated trip home does not alter its compensability.
...
"Adherence to this mechanical process of analysis in particular cases can help remove some of the uncertainty that attends the many familiar situations involving teachers who prepare lessons or correct papers at home, lawyers who take home briefs, salespeople who work on accounts at home, and newspaper columnists who polish up a bit of writing at home -- all of whom might be tempted under a more vague rule to assert compensation coverage of all their movements to, from or around the house by virtue of some morsel of work carried around in their pockets. As at least one court has indicated, "[the] contemporary professional frequently takes work home.... But this hearthside activity -- while commendable -- does not create a white collar exception to the coming and going rule."
Larson, at § 116.10[3]. Larson goes on to discuss the two ways a home can be established as a work place: (1) by showing a clear business use of the home at the end of the journey on a particular day (labeled by Larson as the ad hoc approach), or (2) by showing that regularity of work and other factors endow the house with continuing status of work place even if there was no evidence the worker meant to perform services on a particular night (labeled by Larson as the general approach). In this case, the commission cannot conclude that the applicant has established a dual purpose -- that the trip home for business would have occurred even without a personal purpose -- under either the "ad hoc" or "general" ways of making the showing.
As far as what the applicant did or intended to do over the weekend of October 4-5 specifically, the testimony is just not clear. He seemed to imply that he worked with the videos on his computer, but then on cross examination he simply could not say what he did on the computer or even if he used it for work. Had the record been sufficient to conclude that the applicant made the trip home to use software (either the CAD software or the video transfer software) that was available only on his home computer, a dual purpose trip may have been established. But the applicant does not make that showing.
Nor does the record show that the home was a second office or business site, generally. Larson's discussion and the supporting cases indicate this showing needs to be more than the applicant was in the practice of putting in a few hours of work at home for his own convenience at night. Otherwise every teacher who corrects papers at home, salesman who looked over the next day's accounts, or lawyer or judge who read briefs at night, would be covered during the everyday commuting trip.
On the point of whether a worker shows his home is a place of business generally, the Wisconsin supreme court, quoting Professor Larson's treatise, said in Black River Dairy Products v. Department of Industry, Labor and Human Relations, 58 Wis. 2d 537, 544-45, 207 N.W.2d 65 (1973):
"When reliance is placed upon the status of the home as a place of employment generally, instead of or in addition to the existence of a specific work assignment at the end of the particular homeward trip, three principal indicia may be looked for: the quantity and regularity of work performed at home; the continuing presence of work equipment at home; and special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home.
". . .
". . . If it is necessary to work at night, and if no suitable place is provided by the employer, this is also a persuasive factor. . . ."
In Black River, the injured worker delivered dairy products by truck, and was hurt walking out of his back door on the way to his delivery truck. The injury was held compensable. In that case, the worker had no business site to which he reported for work, and the employer expected him to plug in the truck cooler to an electrical outlet at his home. Further, at the time of his injury while walking from his back door to his truck the worker had completed all preparations to begin the day's deliveries, so the court concluded he was not merely going to work, he was injured at work.
In the current case, the facts are quite distinguishable. The fact the applicant worked at home on prior weekends and used his computer to do the work does not make the showing that it was necessary, not merely convenient, for the applicant to work at home on the weekend of October 4-5, 2003. Again, even if he used his personal CAD program or video-transfer program that was not available at work on some other occasions, that would not be enough to support the inference that he would have gone home to use one of the programs that weekend apart from the personal reason for going home, nor would it change his drive home generally into trips between business locations.
In their briefs, the parties discuss the Horvath v. Industrial Commission, 26 Wis. 2d 253, 260 (1965) case. Ms. Horvath was a teacher, and as part of her job advised the Future Homemakers Association. On the day of injury, Ms. Horvath and some students had set up for a banquet for a Future Homemakers function to be held that evening. Ms. Horvath was also required to attend the evening function. Because neither the school nor the banquet site had acceptable facilities, she drove to her home to clean up and change her clothes for the banquet. She was injured in an accident on the way to her home. The department examiner allowed compensation, but the Industrial Commission reversed and denied, holding that Ms. Horvath was simply going home at the time of her injury. The circuit court reversed the commission, and allowed compensation. The circuit court judge reasoned that Ms. Horvath was making a special trip to clean and bathe for the direct benefit of her employer; that there was no interruption in the continuity of her service for the employer; and that at no time did she leave her employment or deviate from it for any private or personal activity. Horvath, at 26 Wis. 2d 259-60.
The supreme court affirmed the circuit court judge, describing his memorandum opinion as well-considered and quoting it at length in its decision. The supreme court went on to say:
"We only want to add by way of emphasis the distinction between the facts of this case and the ordinary uncompensable act of 'going to and coming from work.' Miss Horvath was not going to her home because her day's work was done. Presumably she would make that trip after the banquet and ceremonies were completed. Nor was she going home for personal or private reasons on a 'split shift,' such as an occasion where her evening duties did not reasonably require special attire." [Emphasis added.]
Horvath, at 26 Wis. 2d 262.
The Horvath case is distinguishable from this case, as well. Ms. Horvath's trip home to get ready for the work-related evening function was quite clearly mandated by her job duties. Indeed, it is not even clear that the trip home in Horvath involved a dual purpose -- it appears the only purpose the applicant had in going home was to clean up and dress for a formal and employment-required job function.
The parties cite other cases from other jurisdictions. While they provide background and may be considered for the persuasiveness of their analysis, they of course are not binding. See Githens v. Industrial Commission, 220 Wis. 658, 265 N.W. 662 (1936), cases from other jurisdictions, including those relied upon by Professor Larson, are not necessarily persuasive because of the specific Wisconsin statutory language in sec. 102.03 (1)(c), Stats. Nonetheless, the commission is guided by the analysis in Professor Larson's treatise more generally. The supreme court quoted from it at length in both Horvath and Black River Dairy, on points closely related to the dual purpose doctrine at issue here. 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 Volkswagen, Inc. v. DILHR, 110 Wis. 2d 319, 324 (Ct. App. 1982).
In sum, under the facts of this case, the commission cannot conclude the trip home from work on Friday, October 3, 2003 (and the trip back on Monday, October 6, 2003) would have occurred even in the absence of the applicant's personal reasons for going home from work. Consequently, the dual purpose doctrine does not provides a basis for changing the applicant's Monday morning drive to work from a noncompensable commuting trip into a compensable drive between two places of business in the course of employment.
On appeal, the applicant does not strenuously argue that the single act of saving the laptop from damage while driving to work placed the applicant in the course of employment apart from the argument about working at home. Rather, he argues the presence of the laptop was significant with respect to the separate question of whether the applicant intended to work at home. Again, the question is not really whether the applicant meant to work at home, but whether his trip home was a dual purpose trip which would have occurred even if the personal reasons for going home were not present. In any event, the fact the applicant had the laptop in the car with him does not make what is otherwise a noncompensable commuting trip into a compensable special errand.
Finally, the applicant on appeal is requesting additional computer records from the employer to show what the applicant did on the laptop computer provided by the employer to aid his claim that he used his home computer to do work for the employer. Even with those records, however, the commission would have to conclude that the applicant used his home computer for work over the weekend of October 4-5--and that he would have made the trip home to do the work even without personal reasons for going home--to establish a dual purpose trip on the weekend in question. As set out above, merely using the laptop computer at home for the sake of convenience would be insufficient to show a dual purpose trip.
cc:
Attorney Dan Gartzke
Attorney John S. Minix
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