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


PATRICIA BENSON, Applicant

SECURITY SAVINGS LOAN, Employer

VIGILANT INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94025091


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations 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.

ORDER

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

Dated and mailed January 31, 1996
bensopa.wsd : 101 : 8 ND 3.19 3.31

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The employer and the insurer (collectively, the respondent) contend that the applicant has failed to prove she sustained an injury covered under the workers compensation law. In order to recover in cases of accidental injuries, an injured worker must prove both: (i) that at the time of the injury he was performing services growing out of and incidental to his or her employment, and (ii) that the accident causing injury arose out of the employe's employment. Section 102.03 (1)(c)1 and (e), Stats.

a. "Services growing out of" - the parking lot rule.

The respondent first contends the applicant was not performing services growing out of her employment when she was injured. The respondent asserts that when the accident happened the applicant had completed her work day, was no longer in the space rented by the employer, and was on her way to a parking lot that was not owned, maintained or controlled by the employer.

Although it may seem persuasive on its face, the respondent's first argument runs square into the special rule governing injuries on the way to and from employer parking lots. Section 102.03 (1)(c)2, Stats., provides in relevant part:

"102.03 (1)(c)2 Any employe going to and from his or her employment in the ordinary and usual way, while on the premises of the employer, or while in the immediate vicinity thereof if the injury results from an occurrence on the premises, any employe going between an employer's designated parking lot and the employer's work premises while on a direct route and in the ordinary and usual way ... is performing service growing out of and incidental to employment."

The department explains this provision in one of its annotations to the workers compensation statutes as follows:

This extends coverage to injuries on a public street or sidewalk where injury occurs while the employe is on a direct route between the employer's designated parking lot after parking there and the employer's work premises.

DILHR Worker's Compensation Act of Wisconsin with Amendments to May 4, 1994, endnote 5.

The provision is also discussed in Neal & Danas, Worker's Compensation Handbook, sec. 3.19 (3d ed. 1990). The Handbook cites the main reported appellate cases on the statute, including a case which holds that the rule only applies if the injured worker was actually on his way to or from the parking lot (so that a person injured while on the same route after taking a city bus to work was not covered) (1), and that if the worker does not take a direct route to her car she may be removed from the course of employment even while on the lot (so that an employe who hopped over barricades in the employer's lot in a "short-cut" attempt was not covered.) (2)

In this case, the undisputed evidence in the record establishes that the applicant was taking the most direct route to the employer's designated parking area when she was hurt. The statute does not require that the parking lot be owned, maintained or controlled by the employer, simply designated. Nor does the law require that the applicant be officially "on the clock;" many of the cases arising under this section are before or after the official work day. In sum, the administrative law judge correctly concluded that, at the time of her injury, the applicant was performing services growing out of and incidental to her employment.

b. "Arising out of" - work hazard or unexplained fall.

The respondent's other argument is that the record does not establish that the applicant actually fell because of the water, so there is a legitimate doubt whether the injury arose out of her employment. Basically, the employer is arguing that the record does not conclusively disprove the possibilities of an idiopathic or unexplained fall, so the employer should not be held liable.

However, the applicant's undisputed testimony was that there was water on the floor in the area where she fell, and that she in fact had water on her coat when she picked herself up. In fact, in the statement to the adjuster offered for impeachment purposes (exhibit 1), she reported that she observed a smearing in the water where she fell. The commission also notes that if the applicant had known with certainty that she was stepping into water at the time of the fall, she might not have fallen at all. In this case, the only reasonable inference that may be drawn is that the applicant fell because of the water. (3) The commission is not left with legitimate doubt on this issue.

Since the employe fell because of the water, hers was not an unexplained or purely personal fall, but due to a hazard "zone of danger" arising out of employment. Stated another way, an employer is liable where, as here, the obligations or circumstances of employment place the employe at a place and particular time where he or she is injured "by a force not solely personal to him or her." (4) The administrative law judge correctly concluded that the accident causing the applicant's injury arose out of her employment.

c: ATTORNEY JULIE J DARNIEDER
MUELLER GOSS & DARNIEDER SC

ATTORNEY PETER A FORIS
EISENBERG WEIGEL CARLSON BLAU REITZ & CLEMENS SC


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Footnotes:

(1)( Back ) Jaeger Baking Co. v. Kretschmann, 96 Wis. 2d 590 (1980).

(2)( Back ) Oscar Mayer Foods Corp. v. LIRC, 145 Wis. 2d 864 (Ct. App., 1988).

(3)( Back ) Detter v. ILHR Dept., 40 Wis. 2d 284, 287-88 (1968) and Leist v. LIRC, 183 Wis. 2d 450 (1994).

(4)( Back ) Compare: Allied Manufacturing, Inc. v. DILHR, 45 Wis. 2d 563, 567 (1970) and Briggs & Stratton Corp. v. DILHR, 43 Wis. 2d 398, 404-05 (1969).