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


RICHARD SLAUGHTER, Applicant

WIS SERVICE & MANAGEMENT, Employer

HARTFORD ACCIDENT & INDEMNITY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95007930


The applicant submitted a petition for commission review alleging error in the administrative law judges' Findings and Order issued in this matter on April 1, 1996. The employer and its insurer submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained a back injury arising out of and in the course of his employment with the employer, and if so, nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judges regarding the credibility and demeanor of the witnesses, hereby reverses their Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is May 26, 1927, was employed as a roofer, snowplower and handyman for the employer, a family- owned real estate management business. He was originally a full- time employe, but at age 65 he cut down to part-time so that he would not exceed the limit on earnings for social security purposes.

On January 22, 1995, he had been plowing snow all day and was traveling in the employer's jeep past one of its warehouses between 4:30 and 5 p.m. when he noticed the door was open. Upon investigating, he found Jay Mullins and his wife in the process of removing their personal snowmobile and snowmobile trailer from the warehouse. Mullins is one of the sons of the husband and wife who own the business, and he performed supervisory duties for the employer, including some supervision of the applicant the applicant considered Mullins to be one of his bosses.

After the applicant used the jeep to pull out the trailer, Mrs. Mullins attempted to attach the trailer tongue to the ball- hitch on the rear of Mullins' pick-up truck. Mullins was in the pick-up. The applicant came up to Mrs. Mullins and told her he would take over. The trailer tongue could not be jacked high enough to fit over the ball, so the applicant suggested that Mrs. Mullins exchange places with her husband and back up the truck while he and Mullins lifted the trailer to fit the tongue over the ball. While the applicant and Mullins were performing this lifting maneuver, the applicant felt a snap in his back and fell to the floor in pain. He sustained a compression fracture at L-3 and an aggravation/acceleration of his preexisting osteoporosis. His physician, Dr. Tribus, assessed 5 percent permanent partial disability. The employer's physician, Dr. Ruby, assessed 3-5 percent permanent partial disability, but not attributable to this incident.

The initial question is whether the applicant's injury arose out of and in the course of his employment with the employer. Despite some dispute over whether the applicant was on his way to return the employer's jeep or to another snowplowing job, he was still in the employer's vehicle and still on duty when he saw the open warehouse door and found Mr. and Mrs. Mullins inside. Mullins requested the applicant's assistance in moving Mullins' personal equipment, the incident occurred was made on the employer's premises, it involved moving the snowmobile trailer out from behind the employer's trucks and the request was made by an individual who exercised supervisory authority over the applicant in the course of his employment.

The central Wisconsin case in this area is Continental Casualty v. Industrial Comm., 28 Wis. 2d 89, 135 N.W.2d 803 (1965), in which a compensable injury was found when an employe was accidentally shot dead. The employe was removing a handgun from his supervisor's coat pocket, at the supervisor's request, while on the employer's premises during work hours. However, at the time of the accident the employe was assisting the supervisor in a personal task unrelated to the employment. The court quoted the following from Larson, Law of Workmen's Compensation:

"When any person in authority directs an employee to run some private errand or do some work outside his normal duties for the private benefit of the employer or superior, an injury in the course of that work is compensable.

"The technical reason for these holdings is simply that whatever the normal course of employment may be, the employer or his supervisory staff have it within their power to enlarge that course by assigning tasks outside the usual area. If they do not assign these tasks on the strength of the employer-employee relation on which compensability depends, then what is the source of authority by which the task is assigned? (1)

"The practical reason for the rule is that any other view places the employee in an intolerable dilemma: if he complies with the order, he forfeits compensation protection; if he does not comply, he gets fired." Id. at 94-95.

The court also stated:

"The broad rule as stated by Professor Larson commends itself. It is not necessary in this case, however, to decide whether to adopt it completely. Perhaps there may be circumstances under which directions given by a superior would be so clearly unauthorized that services rendered in response thereto could not be said to grow out of or be incidental to the employment. In this case before us, however, the services in Barr's personal interest were rendered as an incident of the trip to and from the kennel; they were not only rendered at the direction of the superior, but were performed on the premises where Hilty's duties were ordinarily performed, and during his ordinary working hours. Under these circumstances it was proper to find that Hilty was performing services growing out of and incidental to his employment and that the accident arose out of the employment." Id. at 96

In consultation with the commission, the administrative law judges indicated that they found inconsistencies in the applicant's testimony with regard to his exact work hours on January 22, 1995, and with regard to exactly what was said between the applicant, Mullins and Mullins' wife. However, while these inconsistencies may show that the applicant's memory was poor, or that he attempted to slant the facts slightly in his favor, none of these inconsistencies is controlling. There is no question that when the incident occurred the applicant was still driving the employer's jeep, which he used to plow snow for the employer, and that he stopped at the employer's garage to investigate the reason the door was open. Given these facts it must be found that he was still on duty. There is also no question that Mullins requested his assistance. The administrative law judges drew a distinction between the assistance the applicant rendered in response to Mullins' request for a chain, and all the other assistance which the applicant rendered, without specific request, during the incident. Such distinction is artificial. Mullins drew the applicant into the process of removing his snowmobile and trailer from the garage by asking for a tow chain and by allowing him to use the employer's vehicle to tow the trailer out from behind other vehicles. While it is accepted that Mullins did not thereafter specifically request further assistance from the applicant, neither did he advise him to be on his way, nor did he refuse the further assistance the applicant gave. This additional assistance was the natural continuance of the task at hand. It was an instance where the services rendered, and thus the injury sustained, arose out of and in the course of the applicant's employment with the employer.

Dr. Tribus credibly opined that in the lifting incident of January 22, 1995, the applicant sustained a precipitation, aggravation and acceleration of his preexisting degenerative back condition, including an acute lumbar compression fracture. Dr. Rudy also indicated that the applicant most likely sustained a lumbar compression fracture when he lifted the trailer tongue, but he opined that the applicant's permanent disability and physical restrictions were due to his preexisting osteoporosis. The applicant did not have any preexisting, physical restrictions or a history of permanent disability. His symptoms and disability onset coincided with the work injury. Accordingly, Dr. Rudy's attribution of permanent disability and restrictions to the applicant's preexisting osteoporosis is not credible.

Dr. Tribus did not specify a date of healing, although he completed a physical capacities evaluation on August 21, 1995. On August 14, 1995, Dr. Craig Dopf, who had also been treating the applicant, noted that the compression fracture had healed and the applicant was stable. Dr. Rudy opined that the healing plateau for the applicant's compression fracture was probably over within four to six months from the date of injury, but he did not examine the applicant until November 1995. Based on this evidence, Dr. Dopf's date of healing is accepted as the applicant's healing plateau. He is entitled to temporary total disability from January 23, 1995 through August 14, 1995.

Dr. Tribus' and Dr. Rudy's mutual assessment of 5 percent permanent physical disability is accepted as credible. Dr. Rudy did not indicate any disagreement with Dr. Tribus' permanent physical restrictions as indicated in the physical capacities evaluation of December 4, 1995, and these restrictions are accepted as credible. The applicant has been unable to return to work for the employer. He is an older worker who has restricted himself to part-time employment, and to earnings which do not exceed the maximum allowable by the social security administration before social security benefits are affected. He dropped out of school at age 12 and has extremely limited reading and math skills. He worked for most of his life as roofer, also performing maintenance and carpenter-helper work for the employer. He has always worked and intended to continue his part-time employment before the work injury occurred. His vocational expert, Leslie Goldsmith, assessed permanent and total disability. The employer's vocational expert, John Meltzer, opined that the applicant could work as a security guard, janitor or cleaner/custodian, and cited wage data for these jobs from the DILHR Wage Survey for Dane County. He opined that the applicant had sustained a 45-50 percent loss of earning on an hourly-wage basis, but that he could earn up to the social security disability limit by working more hours.

Given all these considerations, the applicant is found to have sustained a 15 percent loss of earning capacity. He lost his employment with the employer due to the work injury, and also lost some access to the part-time labor market to which he has restricted himself. However, the credible inference is that he will be able to find part-time employment in one of the job categories listed by Meltzer, and will be able to earn close to his previous annual earnings by working additional hours within his restrictions.

The record does not contain an indication of the date on which the applicant changed from a full-time to a part-time position, or of what actual wages he earned during the period of part-time employment. His average weekly wage cannot be accurately calculated without this information, and accordingly the matter will be remanded to the Worker's Compensation Division so that this information may be obtained and the average weekly wage calculated from it. Thereafter, the dollar amounts of the temporary total disability and the loss of earning capacity awards may be fixed.

With regard to the medical expenses submitted, Applicant's Exhibit G contains a listing of amounts due to providers, the applicant, and to Group Health Cooperative as reimbursement. However, there is a confusing restatement of these charges attached to the WC-3, which leaves the commission uncertain as to the exact amounts due. Accordingly, the order will also be left interlocutory with respect to the amounts of medical expense due. The applicant incurred mileage expense for medical treatment in the amount of 272 miles. At the applicable rate of 24 cents per mile this amounts to $65.28 due the applicant.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order issued by the administrative law judge are reversed. The applicant is found to have sustained a compensable back injury as noted in the above findings. Within 30 days from this date, the employer or its insurer shall pay to the applicant as medical mileage expense the sum of Sixty-five dollars and twenty-eight cents ($65.28).

The matter is remanded to the Worker's Compensation Division in order for the average weekly wage to be determined, and for clarification of the amounts of medical expense due. Thereafter, immediate payment of temporary total disability and loss of earning capacity will be due the applicant, less attorney fees, in accordance with the above findings. In addition, immediate payment of the medical expenses, including reimbursement to Group Health Cooperative, should be made after the above-ordered clarification of amounts due is accomplished.

Jurisdiction is reserved as noted above.

Dated and mailed October 1996
slaugri.wsd : 185 : 0 ND 3.6 , 3.16 , 3.31

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

cc: ATTORNEY ROBERT A KAY

ATTORNEY WALTER D THUROW


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Footnotes:

(1)( Back ) Larson also states: ". . . the employer's `order' need not take the form of an outright command, if in the circumstances the employer's `suggestion,' or even the employe's impression of what is expected of him in serving the interests of his employer or superior, are in fact sufficient to motivate his undertaking the service in question." 1A Larson, Law of Workmen's Compensation, p. 5-438, sec. 27.48."