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

SCOTT LORBIECKI, Applicant

GRUNAU CO INC, Employer

TRANSPORTATION INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93019240

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, except that it makes the following modifications:

Delete the first and second full paragraphs to begin on page 7 of the ALJ's decision and substitute:

"The respondent's toxicology expert, Patricia H. Field, Ph.D., opined that the applicant was intoxicated at 4:00 p.m., having consumed the equivalent of 11 to 13 twelve ounce glasses of beer or 16.5 to 19.5 eight ounce glasses of beer. On the other hand, the applicant's toxicology expert, John A. Dellinger, Ph.D., questioned the methodology used by Dr. Field. Dr. Dellinger opined that considering the food consumed by the applicant, the injuries he sustained, and his exposure to cold for several hours, it was not possible to extrapolate back from the applicant's blood alcohol at the hospital to determine the level at 4:00 p.m. or how much alcohol he consumed prior to 4:00 p.m.

"It is unnecessary to determine how much the applicant drank prior to his injury to resolve the issue of whether he sustained injuries arising out of his employment while performing services growing out of and incidental to that employment on January 25, 1993. When last seen at about 4:00 p.m. that day, the applicant had left Busters, returned to the old designated pick up site, and had departed for the new pick up site. Any deviation from the course of employment by going to Busters had ended, and intoxication alone would not bar him from recovering compensation and medical expenses for an industrial injury."

Delete the last paragraph on page 9 of the ALJ's decision, and the first paragraph on page 10 of the ALJ's decision, and substitute:

"Pursuant to Wis. Stat. § 102.58, the respondent insurer has the burden of establishing not only the fact of intoxication, but also a causal connection between the intoxication and the injury or accident. Haller Beverages Corp. v. ILHR Dept., 49 Wis. 2d 233, 237 (1970). In other words, even if the applicant was intoxicated, the respondent insurer must still show the intoxication was a substantial factor in the applicant's injury. Milwaukee Forge v. ILHR Department, 66 Wis. 2d 428, 434-38 (1975). The record simply does not establish what role, if any, intoxication played in the applicant's injury. Regardless, then, of whether the applicant was intoxicated, Wis. Stat. § 102.58 does not apply."

ORDER

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

Dated and mailed August 28, 1997
lorbisc.wmd : 101 : 7  ND § 7.17 § 7.18

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

The employer's main assertion on appeal is that the applicant's injury did not occur while the applicant was performing services incidental to or growing out of his employment with the employer as required under Wis. Stat. § 102.03 (1)(c)1. Specifically, the employer argues that the trip to Busters for lunch followed by an afternoon of beer drinking, amounted to a deviation. However, the ALJ correctly pointed out that even if the beer drinking at Busters was a deviation, the applicant had ended the deviation when he returned to McCormick Place to board the bus. Indeed, workers compensation coverage resumes when an employe ends his deviation and returns to his normal course. Lager v. ILHR Department, 50 Wis. 2d 651, 661 (1971). In this case, the applicant resumed his normal course of employment by returning to McCormick Place and attempting to reboard the bus. (1)

The respondent, however, contends that the applicant either again deviated or "left the scope of employment" when he and Van Beek drank beer outside McCormick Place and engaged in horseplay. However, the record in this case is insufficient to support that inference. The record contains no firsthand evidence to that effect; indeed, the greater weight of the testimony of the witnesses suggests exactly the opposite. The commission did consider the police report taken shortly after the applicant regained consciousness from his head injury. However, that report has the applicant outside McCormick Place with "friends" not just Van Beek. In order to conclude the applicant had engaged in horseplay outside McCormick Place, the commission would have to believe that several people were lying at the hearing, not just the applicant and Van Beek, or that the employer failed to produce eyewitnesses available to make its case.

Moreover, the commission would have to conclude the applicant was a participant in the horseplay, not just a victim of horseplay, or worse, of a simple assault by a coworker. Badger Furniture v. Industrial Commission, 195 Wis. 134 (1928). Finally, not every instance of horseplay amounts to a deviation. Whether horseplay is a deviation depends on the extent to which the horseplay amounted to an abandonment of employment, the extent to which horseplay could be expected, and several other factors. Bruns Volkswagen v. DILHR, 110 Wis. 2d 324-25 (Ct. App., 1982). In summary, the commission declines to find that the applicant was engaged in a deviation at the time of his injury on this record.

The last question is whether the applicant's award should be decreased under Wis. Stat. § 102.58, which provides:

"if injury results from the intoxication of the employe by alcoholic beverages . . . the compensation provided for in this chapter shall be reduced by 15% . . ."

The commission first notes that the expert opinion of Ms. Fields provides substantial evidence showing that the applicant was intoxicated at 4:00 p.m. on January 25, 1993. The commission therefore modified the ALJ's decision to remove the finding the applicant was not intoxicated. Of course, even if the commission concluded the applicant was intoxicated, the respondent would still need to prove that the applicant's injury resulted from intoxication. To determine whether an injury "results from" intoxication, the courts apply a substantial factor test. Milwaukee Forge v. ILHR Department, 66 Wis. 2d 428, 437 (1975). In other words, was the intoxication a substantial factor in bringing about the injury? The commission cannot so conclude on this record, especially since application of Wis. Stat. § 102.58 is a defense for which the employer bears the burden of proof.

cc: ATTORNEY THOMAS J FLANAGAN
PREVIANT GOLDBERG UELMEN GRATZ MILLER & BRUEGGEMAN SC

ATTORNEY MARK H MILLER
LAW OFFICES OF MARK H MILLER

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Footnotes:

(1)( Back ) The idea that an employe who deviates from employment by consuming intoxicants can return to the normal course of employment while still intoxicated is supported by Wis. Stat. § 102.58, which provides for a decrease, but not elimination, of compensation for workers whose intoxication was a substantial factor in their injury.