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


ROY L DODGE, Applicant

LAKELAND TREE SERVICE, Employer,

LIBERTY MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91070969


The administrative law judge issued his findings of fact and interlocutory order in this case on December 21, 1993, following hearings on August 17, 1992 and April 27, 1993. The employer and the insurer (collectively, the respondent) submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, except that it disputed the issue of whether the applicant was an employe under the worker's compensation act at the time of the alleged injury on August 8, 1991. Assuming this threshold issue were to be resolved in the applicant's favor, other issues would include: whether at the time of the alleged injury the applicant was performing services growing out of and incidental to employment; whether injury arose out of the applicant's employment; the nature and extent of disability; and liability for medical expenses.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact and interlocutory order, and substitutes the following therefor:

FINDINGS OF FACT and CONCLUSIONS OF LAW

1. Facts.

The applicant was born on September 27, 1939. He began working for the employer in July or August 1990 and his last days of work were June 17 and 18, 1991. He was injured on August 8, 1991, when he was literally tossed out of the employer's premises after going there to turn in his uniform and obtain his last check.

Prior to his last days of work on June 17 and 18, 1991, the applicant had last worked for the employer in March or April 1991. The applicant testified that the employer would contact him whenever it had work. According to the employer's co-owner, the applicant had been hired as a full-time worker, but he vanished from work in March 1991. The employer's co-owner also testified that the employer did not know where the applicant lived in the summer of 1991, but he was somehow contacted for the assignment in June 1991. The applicant kept a trailer camper on the employer's premises, but it is not clear whether he was contacted at that location. The employer's co-owner did testify that she and her husband wanted the trailer removed.

On July 3, 1991, the applicant received what was described as an "advance" of his pay for June 17 and 18, 1991. The co-owner testified that despite the $100 advance, she thought the applicant probably had more pay coming. She did not testify why he was not paid in full on July 3.

The applicant began working for another tree service (Interstate Tree Service) in May 1991. The applicant testified that he reported to the employer's premises on August 8 to pick up his last check because he was off work from Interstate Tree Service on that day. The applicant's testimony that he went to pick up his last check implies that he believed the relationship with the employer had ended by August 8, 1991. On the other hand, he also testified that on the date of injury he worked both for the employer and Interstate Tree Service.

According to the applicant, he talked to the co-owner on August 8 about his check, but she told him that he would not get his last check unless he turned in some uniforms. He went to his camper, got some uniforms, and deposited them in a barrel on the employer's premises. It is difficult to tell for sure whether he again spoke with the co-owner, but he testified at the second hearing that "by the time I finished, Phyllis [the co-owner] told me I didn't have any money coming." The co-owner testified she did not remember talking about the uniforms with the applicant, and that she told him she did not think he had any money coming before he left. Based on the testimony of an employe of the uniform cleaning company, however, it is clear that in addition to inquiring about his check on August 8, the applicant also turned in a uniform or uniforms.

At any rate, as the applicant was leaving the employer's premises on August 8, 1991, he noticed some workers repairing some machinery. One of the workers had just pinched his finger in the repair work, and was looking around for a pry-bar before continuing. The applicant asked the workers what they were doing, and told them to get on with the repair. The worker who had hurt his finger told the applicant rather pointedly to leave, or he would eject the applicant forcibly. The applicant replied that such action would be against the law. At this point, the other worker literally tossed the applicant in the direction of the door. The applicant fell to the floor and injured himself.

2. The law.

The issue in this case is whether the applicant was in the service of the employer under an express or implied contract of hire, or otherwise an "employe" of the employer under sec. 102.07, Stats. The applicant contends that he was still performing services under his employment contract when he reported to the employer's premises and turned in his uniform and picked up his last check.

In his treatise, Professor Larson writes:

"Injuries incurred by an employee while leaving the premises, collecting pay, or getting his clothing or tools within a reasonable time after termination of the employment are within the course of employment, since they are normal incidents of the employment relation....

"Compensation coverage is not automatically and instantaneously terminated by the firing or quitting of the employee. He is deemed to be within the course of employment for a reasonable period while he winds up his affairs and leaves the premises. The difficult question is: what is a reasonable period?"

1A Larson, Workmen's Compensation, secs. 26.00 and 26.10 (1993).

The Wisconsin supreme court recognized that "even after his discharge the employee is under the protection of the act while presenting himself at the usual place for the purpose of receiving his pay." Pederson v. Industrial Commission, 201 Wis. 2d 599, 602 (1930). The court noted the rule depended on the theory that the contract of employment expressly or impliedly requires an employe to report to a specified place on an appointed day to collect wages. However, the court declined to apply the rule to a worker who was injured when he returned to work to pick up his tools, characterizing that act as an errand of personal convenience. Id., at 201 Wis. 664.

Professor Larson criticized this holding in his treatise, stating that the posthumous dissent of Justice Crownhart in that case was more convincing than the majority decision. Larson, at sec. 26.40. The dissent would have allowed compensation for the applicant's injury upon returning to work to pick up tools, on the theory that:

"It was the fact that he was an employee that led him to take his tools and working clothes to the premises of his employer. It was the fact that he was an employee that made it necessary for him to return to his employer's premises in order to secure his property.... In either case I believe it should be held that the status continues until he has been paid his wages and has had a reasonable opportunity to remove his personal belongings...."

Pederson, at 201 Wis. 2d 901.

Further, the Pederson majority was careful to limit its holding to the act of picking up tools or clothing, as opposed to picking up a paycheck. Further, the employe here was also returning his uniform, as required by the employment contract; a point brought out by the employer itself at the hearing. The commission therefore concludes the applicant would be considered an employe under these circumstances, unless the applicant did not act to pick up his check or return his uniform within a reasonable time after the termination of the employment relationship.

3. Discussion and decision.

This leads to the key question in this case: when did the employment relationship end? The commission concludes that both parties knew that the applicant no longer intended to work for the employer at some point well before August 8.

The applicant and the co-owner both testified that the applicant was picking up his last check for work completed over seven weeks earlier. The applicant went to the employer's premises on August 8 because it was a rain day and he was off work from another employer, Interstate Tree Service, for which he had worked since May.

As noted above, the employer's co-owner testified that the applicant had been hired as a full-time worker. He had not performed in that capacity for several months, and had not worked for the employer at all since June 18, 1991. The applicant testified to a less formal relationship under which the employer simply called him when it had work. However, the applicant would have become difficult to reach after he "vanished," and certainly was essentially unavailable for work when he started working for another employer. The record indicates that the employment was briefly resumed in June 1991, but the commission concludes that the employment relationship ended by July 3, 1991, at the latest. After that date, he cannot be viewed as performing services for the employer under a contract of hire.

The commission also concludes that while the employment contract required the applicant to turn in his uniform, the contract was not temporarily resuscitated while he did so. Turning in the uniform is analogous to the implicit contractual requirement that an employe pick up his check at a certain time under Pederson. An employe has only a reasonable interval after separation to do either act; performing either act after the "reasonable interval" is no longer covered employment.

Did the applicant turn in his uniform and report for his check within a reasonable time after the separation from employment? On this point, Professor Larson noted a New York court's position that:

" [t]here must be a reasonable interval in which to collect pay and leave the premises, but ... there must be an end to the employment relation sometime, and for reasons of convenience that end should not be strung out over an indefinite period while the employee is putting off collection of the wage. It must be conceded that there is something to this argument; for an employee who came for his pay two or three months later could hardly be said to assume the employment relationship once more for the brief journey to the pay office. In such a case, it is quite proper to say that the relation has been transformed to that of debtor and creditor. However, ... it is overly technical to demand that the pay be called for on the day of discharge, or at the earliest possible moment. 'Several days' later should be soon enough. In a world where perfect punctuality and promptitude are not to be expected even of the most conscientious, it is more realistic to follow the line taken by [another] case, in which the lapse of an entire week, including a regular payday, was not held fatal."

Larson, at sec. 26.32.

In this case, the commission concludes that the lapse of time between July 3 and August 8, 1991 exceeded a "reasonable interval" to collect pay and drop off a uniform. The delay in fact seems to have been for the convenience of the applicant because of his new job. Therefore, the applicant was not an employe of the employer, nor was he entitled to the protection of the worker's compensation act, when he visited the employer's premises on August 8, 1991 to pick up his last check and turn in his uniform. As a result, the employer is therefore not liable under sec. 102.03, Stats.

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

ORDER

The decision of the administrative law judge is reversed. The application is dismissed.

Dated and mailed at Madison, Wisconsin, November 2, 1994.
ND 3.29

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge stated that the applicant testified he considered himself to be an "on call" employe. This is borne out both by the applicant's own testimony, the nature of the June assignment, and the fact that the employer had never specifically told him he was no longer an employe.

The commission considered the administrative law judge's reasoning on this point. However, it cannot conclude that the facts of this case establish a continuing employment relationship based on the applicant's employment elsewhere, the hiatus between August 8, 1991 and his last assignment, and his testimony that he went to the employer's premises to pick up his last check. The commission also notes the essentially unrebutted testimony of the employer's co-owner to the effect that the applicant "vanished" from the job in the spring of 1991. The commission must respectfully disagree with the administrative law judge and conclude that the applicant was not an "employe" on the date of injury.

cc:

ATTORNEY DENISE M HARRON
KASDORF LEWIS AND SWIETLIK

ATTORNEY BRIAN J HENDERSON
HENDERSON AND LEVIHN


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