SUANN KAY PAGEL-RAST, Applicant

SCHOOL DIST ALMOND-BANCROFT, Employer

WAUSAU UNDERWRITERS 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 September 15, 2005
pagelsu . wsd : 175 : 8   ND § 3.28

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer contends in its petition for commission review the administrative law judge erred in determining the applicant suffered a work-related left ankle injury on March 14, 2002, resulting in the need for treatment, temporary disability, as well as two percent permanent partial disability. The employer disputes that the applicant's left ankle was injured on school property on March 14, 2002, and asserts that the applicant was not in the course of her school employment at the time of the alleged work injury. The employer points to the fact that the applicant's treatment note on March 15, 2002, indicates that she injured her left ankle when she fell at home on March 14, 2002. The employer states the medical records are based on the history of an accident at home, rather than at work, and this alone creates a legitimate doubt as to the applicant's claim.

However, the applicant contended in her application for hearing that she injured her left leg and ankle, as well as neck and back at work on March 14, 2002. The employer indicated in its answer to the applicant's application for hearing that the employer admitted the accident alleged in the application actually occurred on or about the time claimed. The employer did not amend its answer at any time prior to the hearing in this case to contest the applicant's version that she fell on the employer's premises on March 14, 2002. The applicant testified at the hearing that she was injured on March 14, 2002, while leaving the employer's premises when she slipped on the ice and injured her left ankle. The employer did not question the applicant at the hearing about the circumstances of her fall at work involving the location of her fall. The employer also did not cross-examine the applicant concerning Dr. Carpenter's note on March 15, 2002, that the applicant reported she injured her left ankle when she slipped on the ice while walking out of her house.

The commission consulted with the administrative law judge concerning his assessment of the applicant's demeanor and testimony that she was injured at work on March 14, 2002, while leaving the employer's premises when she slipped on the ice. The administrative law judge indicated he found the applicant to be straightforward and credible in her testimony. Based upon an independent review of the evidence in the record, the commission has found nothing to warrant overturning the administrative law judge's credibility determination. Further, the employer conceded the applicant's accidental exposure alleged in the application for hearing actually occurred on or about the time claimed.

In addition, the evidence establishes that the applicant was in the course of her employment performing services growing out of and incidental to her employment at the time of her work injury on March 14, 2002. The employer contends that since the applicant had left work and allegedly only returned to the premises to pick up her paycheck, she was not in the course of her employment. However, the administrative law judge appropriately noted that the Wisconsin Supreme Court has long held that an employee who is in the process of retrieving a paycheck is in the course of employment. In Hackley-Phelps Bonnell Co. v. Industrial Commission, 165 Wis. 586 (1917), the Wisconsin Supreme Court held that an employee in the process of retrieving a paycheck is in the course of her employment. The Wisconsin Supreme Court noted in the Hackley case that it sustained the view that an employee going in the usual manner for his pay to a place designated by the employer is performing a service within its employment. In our current case, the applicant testified the employer normally put her paycheck into her mailbox on the Thursdays that she was paid, and she was in the practice of picking up her paycheck from the mailbox. The evidence indicates the applicant was attempting to retrieve her paycheck on the day she was paid, from her work mailbox, at the time of her work injury.

The employer points to a Court of Appeals decision in Secor v. Labor & Industry Review Commission, Court of Appeals decision dated December 19, 1999, in which the Court of Appeals noted that the Hackley-Phelps Bonnell decision did not establish a bright line rule, that whenever an employee is in the process of collecting his or her paycheck and sustains an injury, the employer is liable, but instead liability depends on the circumstances in each case. The Court of Appeals noted in the Secor case the employer's practice was to mail paychecks to its employees and the applicant's personal custom of collecting his paycheck before it was mailed did not establish that he acted in accordance with the workplace custom in the manner in which he attempted to collect his pay. The Court of Appeals did not find that Secor was injured in the course of his employment when he was injured on his way to pick up his paycheck rather than wait to receive it in the mail.

However, contrary to the Secor case, the applicant testified that the normal custom was for the employer to leave the paychecks in the employee's mailbox on Thursdays, and the applicant's normal practice was to pick up the paycheck from her mailbox. Therefore, the commission does not find that the Secor decision provides any authority to reverse the administrative law judge's determination that the applicant was in the course of her employment when injured on May 14, 2002. The administrative law judge also appropriately noted the applicant credibly testified that she had just finished discussing a student with a co-employee when she slipped on her way out of school, and this would provide an added basis to find that the applicant was in the course of her employment at the time she was injured on March 14, 2002. Therefore, based on the applicant's credible testimony of the nature and onset of her left ankle injury on March 14, 2002, and given the holding in Hackley-Phelps Bonnell Co. case the evidence was sufficient to establish the applicant suffered a work-related injury on March 14, 2002, resulting in two percent permanent partial disability at the left ankle, as well as medical expense. The administrative law judge appropriately entered an interlocutory order in this matter.

cc:
Attorney James O. Moermond III
Attorney Daniel R. Schoshinski

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