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


MARTIN HELING, Applicant

COUNTY OUTAGAMIE OTHER, Employer

COUNTY OF OUTAGAMIE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96034881


The County of Outagamie submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 2, 1997. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether at the time of his injury the applicant was performing service growing out of and incidental to his employment, and whether the injury arose out of his employment with the employer.

The commission has carefully reviewed the entire record in this matter, and hereby affirms the administrative law judge's Findings and Interlocutory Order, except as herewith modified.

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

The administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW are affirmed and reiterated as if set forth herein, with the exception of the paragraph which begins with the twelfth line on page 7 of the administrative law judge's decision. That paragraph is deleted and the following paragraph is substituted therefor:

"Horvath credibly testified that Krueger threw the one and only punch. She also credibly testified that when Krueger asked the applicant what he was doing there the applicant said nothing, and immediately thereafter Krueger raised his fist to strike the applicant, who did not even have time to defend himself against the blow. In prior face-to-face confrontations, Krueger had been the physical aggressor, apparently itching for a fight with the applicant. The credible inference from this evidence is that seeing the applicant and Horvath together at work so enraged Krueger that he threw the punch at the applicant without warning and without the applicant ever having a chance to defend himself."

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. Within 30 days from this date, the County of Outagamie shall pay to the applicant the sum of Eighty-two dollars and thirty-three cents ($82.33).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed: March 12, 1998
helinma.wsd : 185 : 8  ND 3.3

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission modified the administrative law judge's decision to eliminate hearsay findings related to Krueger's arrest and criminal pleadings. These findings were unnecessary to the commission's decision.

The County argued strenuously that Krueger's attack was motivated solely by his personal animosity and jealousy towards the applicant, and that the applicant was in Horvath's office for personal rather than business reasons on April 24, 1996. While it is undisputed that Krueger's assault was personal in nature, the credible evidence demonstrates that the applicant's work activities contributed to the assault.

On April 24, 1996, the applicant and Horvath were together discussing business matters; and in fact, at the moment of the assault the applicant had stepped back into Horvath's office after previously leaving, in order to get the Appleton Recreation Department book from Horvath. It was at this moment that Krueger saw the applicant and Horvath, and clearly became so enraged at seeing them together at work that he punched the applicant without warning. Krueger had seen the applicant and Horvath together on a number of occasions since the time Krueger had become Horvath's lover, and while these occasions had resulted in pushing, shoving and verbal fireworks, there had not been anything like the direct and devastating assault which occurred on April 24, 1996. Had the applicant not been at Horvath's office to discuss business and pick up the Recreation Department book on that date, this assault would not have occurred. As found by the administrative law judge, the credible inference is that Krueger had set out on that day to visit Horvath at work, not to go after the applicant wherever he might find him.

The County also asserts as a factual matter that the applicant went to Horvath's office to see her personally, and that at best the business matters were merely an excuse for him to visit her. The commission concurred with the administrative law judge's factual finding that Horvath was credible when she testified that on April 24, 1996, she talked with the applicant only about business matters not personal matters. Horvath testified that the applicant could have telephoned her with his questions about the business matters which they discussed, but the fact that for unknown reasons (1) he chose to go to her office in person, does not change the fact that only business matters were discussed. In addition, the applicant could not have obtained the Recreation Department book from Horvath over the telephone.

Finally, the County asserts that it was deprived of due process because the administrative law judge refused to hold an additional hearing to allow Krueger to testify after his criminal proceedings had ended. It is clear that the administrative law judge exercised his discretion not to hold another hearing in order to facilitate resolution of the claim, and because he did not believe Krueger's testimony could change the outcome of the proceeding. Though he did not articulate these reasons, the commission now asserts them as reasons for not ordering additional hearing at this time. The County offered that Krueger could have testified to statements that he made such as that the applicant "deserved it," and that the applicant had been stalking Horvath. Even assuming that such statements were made, and that the applicant stalked Horvath, these would merely constitute cumulative pieces of evidence of the conceded fact that Krueger's assault on the applicant was personal in nature. They would not change the fact that the applicant's work activities contributed to the assault and injury. See Weiss v. City of Milwaukee, 208 Wis. 2d 95,106, 559 N.W.2d 588 (1997).

cc: ATTORNEY RONALD LAMPE
DEMPSEY MAGNUSEN WILLIAMSON & LAMPE LLP

ATTORNEY PETER NELSON
MENN NELSON SHARRATT TEETAERT & BEISENSTEIN LTD


Appealed to Circuit Court. Affirmed January 5, 1999.

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Footnotes:

(1)( Back ) The applicant has no recollection of the events which occurred on the date of injury.