XIA TOU LO, (DEC'D),
c/o SONG CHA LO, Applicant
WAUSAU AREA HMONG MUTUAL ASSOCIATION, Employer
ACUITY INSURANCE CO, Insurer
The applicant, Song Cha Lo, filed an application for hearing seeking compensation for the death of her husband, Xia Tou Lo. The matter was heard by an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development over two days, with testimony being taken on November 11, 2002 and December 15, 2004. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $549.16, the existence of an employment relationship, and that Mr. Lo was fatally injured in a motor vehicle accident on September 20, 2000. The respondent also agreed, if found liable for the work injury, that it would be liable for certain medical expenses. At issue was whether at the time of the accident, Mr. Lo was performing services growing out of and incidental to his employment with the employer.
On February 28, 2005, the ALJ issued his decision in the applicant's favor. The respondent filed a timely appeal.
The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the presiding ALJ. Based on its review, the commission makes the following:
This is a claim for death benefits brought by the surviving spouse of Xia Tou Lo following Mr. Lo's death in a motor vehicle accident on September 20, 2000.
Mr. Lo was born in 1955, He was a health care mentor, or health specialist, for the employer, a private social agency that provides services to Hmong immigrants in the Wausau area. Mr. Lo's job with the employer involved making house calls from the employer's Wausau office to Hmong homes. He worked daily from 8:00 a.m. to 4:30 p.m. with overtime he could bank as "comp time." Mr. Lo also was a successful ginseng farmer.
On September 20, 2000, Mr. Lo was killed in a motor vehicle accident west of Wausau, at the intersection of County Highway U and State Highway 107. Wednesday, September 20, 2000, was a normal work day for Mr. Lo; the fatal accident occurred during his normal work hours at 9:55 a.m. Indeed, Mr. Lo had left the employer's office at 9:20 a.m.
When he left the office, Mr. Lo signed out on an "Employee Check-Out Sheet" maintained by the employer. The Employee Check-Out Sheet listed Mr. Lo's destination as "Townline" and the purpose a "home visit." The employer's office manager, Bab Zehre (1), testified that "Townline Road" was office shorthand for a street or area in Wausau where a number of Hmong families live. However, the "Townline Road" area referred to by Ms. Zehre is a street or area southeast of the employer's office. The intersection where Mr. Lo was killed, County Highway U and State Highway 107, is several miles west of the employer's office. This, of course, raises the question of whether Mr. Lo was actually performing services growing out of or incidental to his employment with the employer when he was in the fatal accident.
The applicant introduced testimony from Blia Yang who testified through interpreters. She stated that Mr. Lo had an appointment to meet her at her home in near Athens (point B on exhibit 1) at 11:00 a.m. on September 20, 2003. Mr. Lo was to take Ms. Yang to Merrill to meet an attorney. When he did not arrive, Ms. Yang said, she called the employer's office and was told he had left and not returned. She testified that she learned late that night that Mr. Lo had been killed. Ms. Yang also further testified that she later told Mr. Lo's wife, Song Cha Lo, that Mr. Lo had the appointment to see her when he was killed. Mrs. Lo herself testified that Ms. Yang had told her that Mr. Lo had been en route to an appointment with Ms. Yang when he was killed.
The accident site was between the employer's office and Ms. Yang's residence. However, Ms. Yang's testimony was not consistent on certain points. For example, she gave different dates for when she scheduled her appointment with Mr. Lo, sometimes stating it was the day before, a few days before, or perhaps a week before September 20. Hearing transcript, page 89-90. Ms. Yang is also not consistent about whether she made the appointment in person, or by phone. She testified at the hearing that she called the employer's office at 11:15 on the day of the appointment to find out where Mr. Lo was, but testified on deposition that she called the day after. Hearing transcript, page 90. Ms. Yang's hearing testimony that she told Mrs. Lo directly about the appointment on the phone and at a family gathering shortly after Mr. Lo's death (hearing transcript, pages 74 to 76, 133) is also inconsistent with her deposition testimony that she did not tell Mrs. Lo about the appointment but told her lawyer first. Exhibit 3, deposition testimony pages 51, 54, 57; (2) hearing transcript, page 104.
The respondent introduced testimony from Joseph Hojan, who testified that Mr. Lo arranged to rent farmland from him. February 26, 2003 transcript, page 46 et seq. That farmland is located west of Wausau, at point C on exhibits 1 and 2. The employer also brought in testimony from Gary Gajewski that he had an appointment to meet Mr. Lo on Hojan's property at 10:15 a.m. to discuss "custom farm work" or plowing the land Mr. Lo intended to grow ginseng on. Mr. Lo never appeared, and Mr. Gajewski left at 10:30 a.m. Mr. Gajewski later learned of Mr. Lo's death. February 26, 2003 transcript, pages 59-61.
Mr. Gajewski did not know the exact date of the meeting, only that it was scheduled for mid to late September. Further, while Mr. Gajewski learned later that Mr. Lo died, he did not testify Mr. Lo had died on the date of the meeting. On the other hand, it might be inferred the meeting was not scheduled before September 20, 2000 at least; Mr. Gajewski did not indicate that Mr. Lo had ever contacted him to say he had missed the meeting and desired to reschedule.
On cross-examination, Mr. Hojan testified that he normally drove to his farm from Wausau on State Highway 29, a four lane road, rather than County Highway U and more rural town roads. Mr. Hojan also testified that Mr. Lo only met with him on weekends and was never dressed in a suit and tie (Mr. Lo's customary office attire.) Hearing transcript, page 54. Of course, Mr. Lo was to meet with Mr. Gajewski, not Mr. Hojan. Mr. Gajewksi did not testify that his practice was to meet with Mr. Lo weekends, nor did he say the September 2000 meeting was to occur on a weekend.
In addition, the respondent introduced testimony from office manager Zehre that she went through Mr. Lo's personal calendar (which he kept at this desk) and the Employee Check-Out Sheet. Hearing transcript, pages 197 et seq. Portions of these documents were introduced as exhibits and, as Ms. Zehre testified, in several instances the notations did not jibe. However, as the ALJ pointed out, no personal errand with Mr. Gajewski was listed in the personal diary for September 20, 2000.
As the applicant points out, when an employee enters upon his employment duties, a rebuttable presumption that he or she continues in that capacity attaches. Indeed, both parties cite Tewes v. Industrial Commission, 194 Wis. 489, 494 (1927), which provides:
It is considered that when it is established that employees have entered upon the performance of their duties and are found at a place where they might properly be in the discharge of those duties, nothing appearing to the contrary, the presumption of continuity obtains, and the evidentiary facts support the inference that at the time of the accident the employees were performing a service for the employer growing out of and incidental to their employment. Ellis v. State, 138 Wis. 513, 119 N.W. 1110; Heileman B. Co. v. Industrial Comm. 161 Wis. 46, 152 N.W. 446; Interlake P. & P. Co. v. Industrial Comm. 186 Wis. 228, 202 N.W. 175.
Here, of course, Mr. Lo was required to travel as part of his duties. Wisconsin Stat. § 102.03(1)(f) in effect states a special presumption in favor of continuing employment by traveling employees by providing that an employee whose employment requires him or her to travel is deemed to be performing services growing out of and incidental to employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. More simply, the presumption of employment continues while an employee is traveling pursuant to the statutory presumption.
With respect to the statutory presumption, the supreme court said in another case involving a fatal accident:
It has been the consistent position of this court that the presumption in favor of travelling employees under sec. 102.03(1) (f), Stats., is rebuttable and drops out of consideration when evidence to the contrary is presented. Tyrrell v. Industrial Comm., 27 Wis.2d 219, 224, 133 N.W.2d 810 (1965); Armstrong v. Industrial Comm., 254 Wis. 174, 35 N.W.2d 212 (1948); Dibble v. ILHR Dept., 40 Wis.2d 341, 347, 161 N.W.2d 913 (1968).
Goranson v. ILHR Department, 94 Wis. 2d 537, 550-551 (1980). (3) The court went on to reject the argument that in order to rebut the presumed fact of continuing employment, an employer must rebut the presumed fact of continued employment by a preponderance of the evidence. Ibid.
In other words, neither the general presumption of continuing employment nor the statutory traveling employee presumption operates to shift the burden of proof. The employer need not disprove the presumed fact of continuing employment by a preponderance of the evidence. Rather, as stated in Tewes the presumption of continuing employment obtains only when there is "nothing appearing to the contrary" and under Goranson the traveling employee presumption "drops out of consideration" when the employer presents "evidence to the contrary."
As the commission reads Tewes and Goranson (including Goranson's express rejection of the change in Wisconsin law resulting from the adoption of Wis. Stat. § 903.01 (4)), when contrary evidence is presented the presumption of continuing employment -- whether "not obtaining" or "dropping out of consideration" -- is entitled to no continuing weight. At that point the case is analyzed as if there is no presumption at all, so that the applicant would be required to prove beyond legitimate doubt that he or she remained in the course of employment.
In this case, then, the commission must first determine whether the employer presented contrary evidence causing the presumption of continuing employment "not to obtain" or "drop out of consideration." Mr. Gajewski testified he and Mr. Lo were to meet at Mr. Hojan's field in mid to late September at 10:15 a.m. On the day of his fatal accident, Mr. Lo the applicant was driving toward the location of that meeting when he reached the accident scene at 9:55 a.m. (or the time of day he would have reached the scene if were en route to a meeting at Mr. Hojan's field at 10:15 a.m.). Mr. Gajewski also testified that Mr. Lo never made it to the meeting. In addition, of course, is Ms. Zehre's testimony that the "Townline" entry in the Employee Check-Out Sheet for 9:20 to 11:30 on September 20, 2003 likely referred to an area in the opposite direction from the fatal accident. Further, the employer introduced Mr. Lo's personal diary indicating that Mr. Lo had on prior occasions identified a personal errand as a work call on the Employee Check-Out Sheet. This suggests that Mr. Lo was not actually headed toward Townline Road, or otherwise engaged in an employment-related "trip," at the time of the fatal accident.
The commission concludes that this is sufficient contrary evidence to cause the presumption of continuing employment by a traveling employee "not to obtain" or to "drop out of consideration." As Goranson states, the employer does not need to rebut the presumption by a preponderance of the evidence. Consequently, the commission must determine if the applicant has met its burden in establishing that Mr. Lo was in the course of employment at the time of his death. The record contains two pieces of evidence on this point: (1) testimony that Mr. Lo was driving out to a point northwest of Wausau to help Ms. Yang meet an attorney, and (2) the Employee Check-Out Sheet which listed a work destination.
The commission and the ALJ discussed Ms. Yang's testimony during the credibility conference. The ALJ noted that Ms. Yang had been beaten by her spouse, and that Mr. Lo helped her during a difficult time. He added that Ms. Yang testified with considerable difficulty through interpreters, and that she was likely intimidated by the deposition process.
However, the commission is not persuaded that the testimony about the asserted meeting with Ms. Yang is sufficiently credible to carry the applicant's burden. Ms. Yang's testimony is inconsistent on several key points, including when she scheduled the meeting, when she called the employer's office after Mr. Lo did not appear, and whether she told Mrs. Lo about the appointment shortly after Mr. Lo's death. Finally, Ms. Yang's testimony suggesting that Mr. Lo was en route to an appointment to meet with her attorney in Merrill about 11:00 a.m. is inconsistent with the Employee Check-Out Sheet in which Mr. Lo stated he was going to Townline Road and expected to return to the office at 11:30 a.m. As the testimony of Mrs. Lo and True Lo relies on what they in turn were told by Ms. Yang, there his testimony also cannot be credited.
The commission also considered the argument that the Employee Check-Out Sheet reference to "Townline" established he was performing service arising out of his employment with the employer when he was fatally injured. However, the evidence the employer used to rebut the traveling employee presumption
-- the testimony that "Townline Road" refers to a location east of the employer's office, the meeting of uncertain date but certain time of day in the direction of the accident with Mr. Gajewski about a personal matter, and Mr. Lo's occasional failure to list in the Employee Check-Out Sheet personal deviations documented in his personal diary
-- also undercuts the force of that argument.
The commission realizes that there is more than one Townline Road in the Wausau area. In fact, there is a Townline Road in the very area where Mr. Hojan's field is located, by Athens at point C on the maps. The applicant suggests Mr. Lo may have been en route to a work-related call on another Townline Road on September 20 because his Employee Check-Out Sheet for September 8, 2000 lists "Townline Rd, Stetin" as a destination. According to the map at exhibit 1, however, there appears to be no "Townline Road" in or near the Town of Stettin. Even if there were, Mr. Lo listed "Towline Rd., Stetin" for September 8, not September 20. Given Ms. Zehre's testimony about the common meaning of "Townline Road," the commission declines to conclude Mr. Lo was in the course of employment when his fatal accident occurred on September 20 because there are multiple Towline Roads or because he listed "Townline Road, Stetin" as a destination or destinations on another date.
The commission realizes that Mr. Lo's death greatly hinders the applicant's ability to prove where Mr. Lo was going at the time of his accident. The commission also appreciates that Mr. Lo, of course, is not responsible for the inconsistencies in Ms. Yang's testimony. Further, the commission acknowledges that Mr. Lo was by all accounts a respected man and diligent employee.
As is evident from the dissent, this is not a clear case. If the traveling employee presumption actually operated to shift the burden of proof to the employer -- the proposition rejected by the supreme court in Goranson -- the commission might well have decided the case differently. However, given the effect of the presumptions in Tewes and Goranson, and the evidence before it, the commission cannot conclude Mr. Lo was providing services growing out of or incidental to his employment when fatally injured.
The findings and order of the administrative law judge are reversed. The application is dismissed.
Dated and mailed October 11, 2005
loxi . wrr : 101 : 8 ND § 3.25
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
The commission discussed witness credibility and demeanor with the presiding ALJ. He regarded Mr. Gajewski as an uninterested witness who testified simply to the facts as he knew them. However, the ALJ stated that Ms. Zehre's testimony seemed very biased, noting she appeared angry and somewhat condescending, and seemed to want to draw every inference against Mr. Lo.
There commission does not dispute that Ms. Zehre exhibited that demeanor. However, much of her testimony was aimed at providing a foundation for documentary exhibits, leaving the ALJ and the commission to draw their own inferences from the document's content. A notable exception was the meaning of Townline Road. On this point, the ALJ noted the employer could have brought other workers -- perhaps others holding the same position as Mr. Lo -- to substantiate her testimony. While that is true, the applicant likewise could have offered evidence contradicting her testimony; under Goranson the employer does not have the burden of proving a deviation beyond a preponderance of evidence.
ROBERT GLASER, Commissioner, (dissenting):
I cannot agree with the majority's decision in this case.
The majority emphasizes the notation "Townline" on the Employee Check-Out Sheet for September 20 and Ms. Zehre's testimony that "Townline Road" means a location southeast of Wausau. However, I would not infer that the fact that Mr. Lo was traveling in a different direction when killed automatically meant he deviated from employment. The majority acknowledges that there is more than one Townline Road in Marathon County. Mr. Lo's route at the time of his accident could have taken him to at least one of them. Nor is it unreasonable to infer that Mr. Lo -- whose job required him to travel and was killed during normal office hours -- had simply decided to go to another work-related destination. According to Ms. Zehre, the Employee Check-Out Sheets were used only to apprise the employer's management where its employees were; another document, an Employee Log, was used for the actual billing purposes.
The majority seems to believe Mr. Lo was en route to see Mr. Gajewksi when he was killed. However, Mr. Gajewski could not recollect the day of the meeting he was to have with Mr. Lo beyond the broad range of mid to late September. The meeting could well have been for a day occurring after Mr. Lo's death. Indeed, Mr. Gajewski only waited 15 minutes, so even if the meeting was to occur before September 20, Mr. Gajewski would have missed Mr. Lo if he arrived late. Significantly, no meeting with Mr. Gajewski was noted in Mr. Lo's personal log for September 20. Further, Ms. Zehre testified that Mr. Lo had previously asked for vacation time to tend to his ginseng farming. December 2004 transcript, page 211.
Finally, the majority bases its decision on Goranson, but that case involved a traveling employee's activities after his work duties had ended for the day. This case, by contrast, involves a worker's activities during normal working hours. Because Mr. Lo cannot testify on his own behalf about exactly where he was going during work hours on September 20, 2000, the commission must rely to some degree on inference. However, Goranson does not require the commission to draw every inference adversely to the applicant, Mr. Lo's widow. Indeed, the very purpose of the traveling employee presumption in Wis. Stat. § 102.03(1)(f) suggests otherwise.
In sum, I believe the respondent offers speculation, not inference, in rebuttal of the traveling employee presumption. The testimony offered by the respondent does not meets the standard set out in Goranson, so the respondent has failed to rebut the traveling employee presumption. Thus, while I do not dispute the majority's findings regarding Ms. Yang's credibility, I would resolve this case in the applicant's favor based on the continuing employment and traveling employee presumptions.
For these reasons, I respectfully dissent.
/s/ Robert Glaser, Commissioner
cc:
Abby Butler
Jennifer Lattis - Assistant Attorney General
Attorney Patrick L. Crooks
Attorney Terrance E. Davczyk
Attorney David A. Piehler
Appealed to Circuit Court. Affirmed June 30, 2006.
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