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

PAUL M. MISSINNE, Applicant

SCHOOL DIST SPOONER, Employer

SOCIETY INSURANCE A MUTUAL CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2002046212


The applicant filed an application in August 2003, seeking compensation for a right knee injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on November 2, 2004.

Before the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage resulting in the maximum temporary and permanent disability indemnity rates for an injury in 2002, and that the applicant injured his right knee in a compensable injury on October 26, 2002. In its answer to the hearing application, the respondent conceded that an employer-employee relationship existed between the applicant and the Spooner School District. Finally, the respondent conceded that if the disputed issue were resolved in the applicant's favor, that compensation should be paid as set out in exhibit I (as discussed below.)

At the hearing, the main issue was whether the applicant was providing services growing out of and incidental to employment with either or both entities (the Spooner School District or the Wisconsin School Music Association) when he was injured. Also disputed was whether an employment relationship existed between the applicant and the Wisconsin School Music Association, raising the question of dual or joint employment.

On April 22, 2005, the ALJ issued his decision in favor of the applicant. The respondent filed a timely petition for commission review.

The commission has considered the petition and the positions of the parties (including the ably-prepared hearing and LIRC briefs submitted by both parties) and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts.

The applicant is a middle school music teacher for the employer, the Spooner School District. He was injured off school premises on Saturday, October 26, 2002, while setting up a stage for a concert sponsored by the Wisconsin School Music Association. The applicant seeks worker's compensation from the Spooner School District for that injury.

The applicant began working for the Spooner School District as an orchestra director in 1983. As of the date of injury, October 26, 2002, he was employed by the Spooner School District as a fifth and sixth grade general music teacher, and the seventh and eighth grade instrumental director or band director. As music teacher, provided the fifth and sixth grade students with a musical education; as band director he worked with the band to perform concerts.

In that capacity, the applicant attended one convention a year, the state music convention. The convention has two parts, a conference put on by the Wisconsin Music Educators Association (WMEA) on a Thursday and Friday in October, and a concert sponsored by the Wisconsin School Music Association (WSMA) the following Saturday. (1)

According to the applicant, the WSMA is an entity similar to the more familiar Wisconsin Intrascholasic Athletics Association (the WIAA). The WSMA sponsors music festivals and the applicant described it as "oversee[ing] music opportunities for students throughout Wisconsin." Private individuals are not members; the Spooner School District is a member. (In contrast, the applicant himself is a member of the WMEA.) The Spooner School District's membership in the WSMA allows the applicant to send his students and school bands to music festivals and other activities with students of different schools. The applicant can also network with other teachers at such events.

One of the activities sponsored by the WSMA is the "honors program." Music teachers work with students on a solo performance, and nominate students to be in the honors project. In April of each year, the nominated students go to an audition before adjudicators. As band director, the applicant helps the nominated students prepare. After the judging, the top students are chosen for the honors program.

The honors program includes an honors concert at the state music convention in October of each year. Prior to the concert, in August of each year, music teachers who have been chosen as staff members of the WSMA have a retreat or conference, in which they prepare for the WSMA honors concert. The students participating in the honors program then perform at the WSMA honors concert at the state music convention in October, which involves a rehearsal on Friday prior to the actual performance on Saturday.

The applicant was a staff member for the WSMA for three years, 2002, 2003, and 2004. This was his second appointment, having been appointed as a staff member in the early 1990s as well. He testified that being chosen as a WSMA staff member is an honor, a confirmation of his effectiveness as a teacher, and enriching professionally. The letter appointing him (Exhibit C, Tweed letter dated December 19, 2001) was sent to his school address. After receiving the letter, the applicant told his principal of the appointment.

Even in years when he was not a WSMA staff member, the applicant would attend the state music convention, including the WMEA conference and the WSMA honors concert. He would request a leave of absence from the Spooner School District, who would pay him for the work days he missed to attend, and would receive mileage or a vehicle from the Spooner School District to go. He could not recall if the Spooner School District paid his registration fee for the WMEA conferences in years he was not a WSMA staff member.

In August 2002, the applicant, as a WSMA staff member, attended the pre-concert retreat. The WSMA paid his mileage and motel bill. The meeting did not occur during the normal school year; the Spooner School District did not pay the applicant to attend the August 2002 retreat.

The applicant, of course, also attended the October 2002 WMEA convention and WSMA honors concert in Madison. His leave of absence request is at exhibit C. He asked to have Thursday, October 24 and Friday, October 25 off work. He listed the reason as "school business." The form asks for identification of the "school business" and lists "Conference/Convention/Athletic Event/Field Trip..." as examples. The applicant wrote in "Middle Level Honor Band - State Music Convention." To explain the purpose of attending, he wrote "member of band staff."

The applicant did not did not request mileage from the Spooner School District, as he assumed, correctly, that he would be provided a vehicle by the Spooner School District. Nor did the applicant request payment of a registration fee for the WMEA conference in 2002. Because he was attending the WMEA conference as a WSMA staff member, the WSMA paid the WMEA conference fee of about $80. The applicant did request expenses totaling $139, representing his meal and lodging expenses for the night of Wednesday, October 23, 2002, from the Spooner School District.

The Spooner School District approved and paid the applicant's leave of absence and expense requests. He was paid his regular salary or wages by the Spooner School District for Thursday, October 24 and Friday, October 25, 2002, which were regular school days.

The applicant left for Madison in Spooner on Wednesday, October 23, 2002. He attended the WMEA conference which was held on Thursday, October 24 and Friday, October 25. He also acted as a WSMA staff member in connection with the WSMA honors concert that weekend.

The applicant's duties as a WSMA staff member at the October 2002 concert are documented in a letter from the WSMA program consultant, Janet Tweed (Exhibit 2). The applicant testified his duties were consistent with Ms. Tweed's letter. They included overseeing band rehearsals which occurred on Friday, October 26, 2002, helping students during registration, chaperoning, waking students and making sure they eat breakfast, assisting with band set up.

The applicant performed these duties at the direction of the WSMA. The applicant agreed that the WSMA could remove a WSMA staff member if he or she performed inadequately, but he was not aware that had ever been done.

The WSMA regards the staff members as volunteers. See Tweed letter at Exhibit 2. It does, however, provide reimbursement for travel. In this case, the WSMA paid for two nights' lodging and meals for the applicant; the applicant's first night's lodging and the mileage/vehicle expense were paid by the Spooner School District. As stated above, the WSMA also paid the applicant's registration in the WMEA conference.

In October 2002, the applicant's middle school sent two students to perform at the WSMA honors concert in Madison on Saturday, October 26. Having a student performing in the honors concert is considered an honor by the student's school. The students sent by the applicant's school were singers, not instrumental band members whom the applicant taught directly.

The applicant's school principal, Roger Noe, testified that he regarded the applicant's days off as "school business" days, and that attendance at events like the WMEA conference and WSMA honors concert bettered teachers professionally. Mr. Noe specifically referred to the WSMA honors concert, the event held on Saturday when the applicant was injured, as the type of event that was an honor for the Spooner School District, gave the applicant the ability to grow professionally, and helped the Spooner students who were attending. Transcript, page 75 to 78, 81.

The applicant was injured on Saturday, October 26, when he was setting up the shell that projects sound around the concert hall. Specifically, the applicant hurt his knee when he stepped off the stage and fell. He reported the injury, and treated, ultimately having a meniscus repair surgery in December 2002.

2. Issues.

At this point, there is no dispute about the nature and extent of the applicant's disability, or that it was caused by the injury when he stepped off the stage. Rather, the dispute here centers on two questions:

1. Was the applicant performing services growing out and incidental to his employment with the Spooner School District when he was injured setting up for the WSMA honors concert on Saturday, October 26?

2. If so, was he dually or jointly employed by the Spooner School District and the WSMA, or might have been, so that WSMA should have been impleaded or added to this action as a party respondent?

The ALJ found the applicant was performing services growing out of his employment with the Spooner School District when injured on Saturday, October 26. The ALJ also found WSMA was not an employer and did not need to be impleaded.

a. Services growing out of employment with the Spooner School District.

The first question is whether the applicant was performing services growing out and incidental to his employment with the Spooner School District when injured. The Spooner School District argues that it was not directing his duties at the WSMA honors concert and that the injury occurred on a normal day off work when he was not being paid. The Spooner School District asserts also that it was not receiving any direct benefit from the applicant's work at the concert.

However, as the applicant asserts, he was a "traveling employee" when the injury occurred. He had left Spooner for Madison to attend the WMEA conference with the Spooner School District's approval and the School District paid him to attend the WMEA conference on Thursday, October 23 and Friday, October 24. The Spooner School District also paid his travel expense (in the sense it gave him a car) and one night's lodging. Principal Noe testified that the Spooner School District obtained a benefit from the applicant's attendance at both the WMEA conference and the WSMA honors concert. Thus, while on his trip to Madison the applicant was a traveling employee, entitled to what has been referred to as "portal-to-portal coverage" under Wis. Stat. § 102.03(1)(f).  (2)

Under that statute, a worker is deemed to be performing service arising out of and incidental to employment at all times while on a business trip, unless engaged in a deviation for private or personal purposes. Coverage under Wis. Stat. § 102.03(1)(f) does not necessarily end if the traveling worker fails immediately to return home at the first opportunity after a conference ends.

In a relatively recent supreme court case, Wisconsin Elec. Power Co. v. LIRC, 226 Wis. 2d 778 (1999), a worker (Overbye) was sent to Texas for a convention. Overbye did not intend to take the first plane back to Wisconsin, but stayed over after the convention ended to have a week-end with his wife and save his employer the airfare. Overbye died after an accident on a sight-seeing trip to a rodeo had ended. The supreme court found that Overbye remained a covered employee during the sightseeing trip after the convention ended, noting that his employer had a policy under which it benefited financially by having Overbye stay over and take a weekend flight home. In holding that Overbye was covered during the sight-seeing trip after the conference ended, the Wisconsin Elec. Power Co. court also noted:

In previous cases, we have considered whether the employer and the employee both derived a benefit from an employee's actions in determining whether an employee was injured while "performing service growing out of and incidental to his or her employment." Wis. Stat. § 102.03(1)(c), (f). See Ide v. LIRC, 224 Wis. 2d 159, 171, 589 N.W.2d 363 (1999); Schwab v. DILHR, 40 Wis. 2d 686, 693, 162 N.W.2d 548 (1968); State YMCA v. Industrial Comm'n, 235 Wis. 161, 163-64, 292 N.W. 324 (1940). But see CBS, 219 Wis. 2d at 576-77. In Schwab, we referred to this consideration as the "mutual benefit doctrine." Schwab, 40 Wis. 2d at 693.

Id., at 226 Wis. 2d 794, footnote 12.

In this case, again, the Spooner School District paid for the applicant's trip to Madison to attend the WMEA conference and paid the applicant while attending that conference on Thursday and Friday. In the commission's view, the question whether his injury occurred while performing services growing out of or incidental to his employment with Spooner School District turns on the question of whether the applicant's activities at the WSMA honors concert on Saturday before returning home was a "deviation for a private or personal purpose" in light of the "mutual benefit doctrine."

The commission concludes the applicant's staff duties at the WSMA honors concert were not a deviation and constituted services growing out of or incidental to his employment with Spooner School District. This case involves more than the intangible benefits of increased morale accruing to an employer from a company get-together (Schwab) or engaging in sports off-duty (YMCA) which may be insufficient to bring a worker in the course of employment. See: Neal & Danas, Worker's Compensation Handbook § 3.20 (5th ed., 2005). Here, Principal Noe's testimony indicates the applicant's attendance at the WSMA honors concert on Saturday not only improved the applicant's teaching ability, but also brought honor to the Spooner School District and benefited students attending the event. The Spooner School District itself is a member of the WSMA, the entity that put on the concert.

The commission has previously held that a worker hurt in a charity recreational function he attended for the public relations benefit of the employer is performing services growing out of and incidental to his employment. Larry Wunsch v. City of Fond du Lac, WC Claim no. 93040966 (LIRC, December 21, 1994). In such a case, the benefit to the employer brings the service within covered employment, even if the worker is performing the service off duty without the expectation of payment for the specific hours of service. Again, Wis. Stat. § 102.03(1)(f) provides for coverage during the entire business trip, even outside normal paid working hours, absent a deviation.

The Spooner School District suggests that the WSMA honors concert is no different than summertime education classes a teacher might take in that both provide some benefit to a school district employer. Of course, there is more than that here. The Spooner School District belongs to the WSMA and its students perform at the annual concert and other WSMA events. Having a teacher volunteering in this type of off-duty event benefits the Spooner School District more directly (and frankly the applicant less directly) than if he were taking classes in the summer. Again, the applicant -- whose wages the Spooner School District paid during his attendance at the WMEA conference on October 24 and 25 on "school business" -- was a traveling employee when injured, not a teacher on summer vacation.

As the applicant points out, the supreme court has repeatedly stated that the Workers Compensation Act should be construed to bring borderline cases within its coverage. Wisconsin Elec. Power, at 226 Wis. 2d 796. In this case, as the ALJ determined, the applicant was performing service growing out of and incidental to his employment with Spooner School District when injured on October 26, 2002.

b. Joint or dual employment; impleading or adding-in the WSMA

This leaves the dual or joint employment issue. The Spooner School District argues that the WSMA was or may have been a joint or dual employer, and that the WSMA should have been impleaded on that basis. Regarding joint or dual employment, Professor Larson explains:

Joint employment occurs when a single employee, under contract with two employers, and under the simultaneous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or is closely related to, that for the other. In such a case, both employers are liable for workmen's compensation.

Dual employment occurs when a single employee, under contract with two employers, and under the separate control of each, performs services for the most part of each employer separately, and when the service for each employer is largely unrelated to that for the other. In such a case, the employers may be liable for workmen's compensation separately or jointly, depending on the severability of the activity at the time of injury.

3 Larson's Workers' Compensation Law § 68.01 (LexisNexis 2005).

Wisconsin courts recognize dual employment, holding that in dual service the two capacities of the workman are inextricably entwined. La Favor v. Industrial Commission, 28 Wis. 2d 22, 25 (1965).

In order for there to be a dual employer relationship, of course, the threshold issue is whether an employment relationship existed between the WSMA and the applicant. In Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175, 182 (1973), the court set out a two-part test for determining the existence of an employment relationship in worker's compensation cases. The Kress Packaging court held that the primary test is whether the employer has the right to control the details of the work and that the secondary test requires consideration of various conditions including remuneration, direct evidence of the right to control, the employer's furnishing of tools and equipment, the employer's right to fire and hire.

According to the court of appeals, Kress Packaging "strongly suggests that wages are a requirement of the 'contract of hire.'" Klusendorf Chevrolet Buick, Inc., v. LIRC, 110 Wis. 2d 328, 334 (Ct. App 1982). The court quoted from Professor Larson's treatise for the proposition that "while the performance and acceptance of valuable service normally raises an implication that payment for the services is expected, this implication does not arise when the circumstances negative such an expectation." Klusendorf, at 110 Wis. 2d 333-34, quoting 1C Larson, Workmen's Compensation Law § 47.41 (1980). The court noted that Professor Larson recognized three situations that negate the expectation of wages, including "patriotic or charitable duties." (3)   This led the court of appeals in Klusendorf to conclude that there would be no contract of hire whenever wages were neither paid nor expected to be paid. Id., at 110 Wis. 2d 336.

Here, the applicant was not performing services with the expectation of any wage from the WSMA. The payment of travel expenses by the WSMA does not amount to a wage for the purposes of the analysis in Kress and Klusendorf. The Spooner School District states that Professor Larson's treatise states that room and board can be considered a wage. Indeed, Wis. Admin. Code § DWD 80.29 suggests that employer-provided lodging and meals may have some value for wage purposes. However, the situation where an employer provides a worker room and board is distinguishable from the provision of travel expenses to a person who maintains a home at his own expense in the city where he normally works. Payment of the registration fee for the WMEA conference likewise is payment of an expense rather than a wage.

In sum, the applicant was not paid wages, nor did he expect to be paid wages, by the WSMA. Any expectation would be negated by the applicant's understanding that his appointment as a staff member to the WSMA -- itself an association of school districts -- was voluntary and an honor. If the WSMA did not pay wages, there is no contract of hire, and no employer-employee relationship. (4)   If there was no employer-employee relationship between the applicant and WSMA's employee, joint or dual employment cannot arise.

Finally, Spooner School District offers a fairness or due process argument that the WSMA should have been impleaded or added as a party respondent to require the WSMA or the applicant to prove that it was not an employer, or at least to allow Spooner School District to prove it was. The commission cannot agree. The Spooner School District was free to put on whatever proof it wanted on the issue of joint or dual employment at the hearing before ALJ McSweeney; he certainly did not limit testimony on this issue. If the Spooner School District wished to call witnesses from the WSMA adversely -- or offer any other proof on the issue -- it could have made arrangements to do so. The evidence that was offered established that the applicant provided services to the WSMA as a volunteer not an employee.

In sum, the applicant met his burden of proving that he was injured while performing services growing out of and incidental to his employment with Spooner School District. Had the Spooner School District offered evidence sufficient to implicate the WSMA, the ALJ or commission would have ordered impleader. However, neither fairness nor the applicant's burden of proof warrants impleader or adding the WSMA as a party respondent in this case.

3. Award.

Given that the applicant was injured while performing services growing out of and incidental to his employment with the School District, there is no dispute about whether his disabling injury arose out of that employment, the nature and extent of his disability, and the School District's liability for medical expenses. Accordingly, the commission restates the award made by the ALJ (modified to order a 20 percent fee), based upon the parties' stipulation to, or agreement upon, the claims set out in exhibit I.

The applicant was temporarily totally disabled from October 27 to November 2, 2002 (a period of 5 days), and from December 17, 2002 to January 3, 2003 (a period of 2 weeks and 1 day less one-half day). At the statutory maximum TTD rate ($647 per week); this amounts to payments for temporary total disability indemnity during these periods of $539.17 and $1,337.14 respectively, totaling $1,876.31. The applicant is also entitled to permanent partial disability at seven percent compared to amputation at the knee, or 29.75 weeks at the statutory maximum PPD rate ($212 per week) totaling $6,307.

In all, the disability compensation awarded equals $8,183.31. Exhibit I specifies an 18 percent attorney fee by department order or a 20 percent attorney fee upon appeal. A twenty percent fee on the disability compensation awarded, or $1,636.66 is warranted under Wis. Stat. § 102.26 in this case; that amount shall be paid to the applicant's attorney within 30 days. The remainder, $6,546.65, shall be paid to the applicant within 30 days.

The parties also agreed to the payment of the medical expenses as documented in exhibit E, which results in reimbursement to WEA for medical expenses paid of $11,545.98. The parties further agreed to the restoration of sick leave benefits under Wis. Stat. 102.30(3); these shall be ordered restored. Finally, the parties agreed to an interlocutory order; consequently, this order shall be left interlocutory to permit claims for future disability and medical expenses.

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

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing, and, as modified are affirmed.

Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:

1. To the applicant, Paul Missinne, Six thousand five hundred forty-six dollars and sixty-five cents ($6,546.65) in disability compensation.
2. To the applicant's attorney, Israel Ramon, One thousand six hundred thirty-six dollars and sixty-six cents ($1,636.66) in fees.
3. To WEA, Eleven thousand five hundred forty-five dollars and ninety-eight cents ($11,545.98) for reimbursement of medical expenses.

The employer shall restore the applicant's sick leave benefits as provided for in Wis. Stat. § 102.30(3).

Jurisdiction is reserved for orders and awards as are consistent with this decision.

Dated and mailed September 30, 2005
missipa . wrr : 101 : 1 ND § 3.25  § 2.11

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Attorney Israel Ramon
Attorney Ronald S. Aplin



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Footnotes:

(1)( Back ) There is some support in the record for concluding that the entire three-day period from Thursday through Saturday constitutes the WMEA conference. See for example, exhibit C, Tweed letter dated December 19, 2001. For the sake of clarity, however, the commission separates the Thursday and Friday teacher conference (the WMEA conference) from the Friday rehearsal and Saturday honors concert (the WSMA concert).

(2)( Back ) 102.03(1)(f) (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. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of the employee's employment.

(3)( Back ) The two other situations negating the expectation of wages in the Larson treatise are helping family members and "advancing ones own interests" such as where a truck driver might help move a stalled vehicle owned by another employer so he can continue his duties.

(4)( Back ) The Spooner School District, of course, did not pay the applicant any wages specifically for Saturday, October 26. However, it did have an ongoing employment relationship with him for which it has indisputably paid him wages in the past, triggering the portal-to-portal coverage of Wis. Stat § 102.03(1)(f). The commission believes a wage-paying employer of a traveling employee who is injured while "off the clock" may validly be distinguished from an entity that never pays wages and for whom a person provides services as a volunteer.

 


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