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


DONALD W CARLSON, Applicant

INLAND DREDGE COMPANIES INC, Employer

EMPLOYERS MUTUAL CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93061871


The administrative law judge issued her findings of fact, conclusions of law, and interlocutory order in this case on February 9, 1996, following hearings on August 10, 1994 and November 27, 1995. The employer and the insurer (collectively, the respondent) have 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, an average weekly wage of at least the statutory maximum at the time of the applicant's alleged compensable injury of July 25, 1990. The respondent paid no compensation prior to the hearing.

The issues are whether at the time of the alleged injury the applicant was performing services growing out of and incidental to employment and whether injury arose out of the applicant's employment. If a compensable injury is established, the issues also include 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 her findings of fact, conclusions of law and interlocutory order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1949, and his permanent residence is in Ironton, Minnesota, which is 230 miles north of Minneapolis. He began working for the employer in May 1989, after learning of the job opportunity from another of the employer's workers, Jim Coleman.

The employer does hydraulic and mechanical dredging of ponds and lakes to remove soil and sediment. The employer's business location, what the applicant referred to as a shop and the employer's owner called a shipping office, is in Burlington, Wisconsin. The applicant was hired at this location. The employer's owner lives in Burlington, as well, and that city may be fairly described as the base of the employer's operations.

The applicant's duties for the employer included operating a dredge and a weed harvester. He worked from May to December in 1989, corresponding to the employer's typical season. The applicant returned to work for the employer in April 1990.

The employer's owner, Mr. Cole, paid for the applicant to stay at the Beach View Hotel in Burlington, and also gave him $15.00 per day for food. The applicant stayed overnight at the Beach View Hotel in Burlington during most of the time he worked for the employer.

In 1990, for example, the applicant worked in Illinois during all of April, dredging a private lake, but drove back to Burlington each evening. His next job in 1990 was in Milwaukee, dredging the ponds in the Milwaukee County parks. This job lasted until July, and the applicant again drove back to Burlington each evening. The applicant's next assignment in 1990 was at a lake near the Illinois border. He did not stay overnight in Illinois on this assignment; at least, the record does not indicate that he did so.

The applicant's next and last assignment was in 1990 in Burlington itself. The assignment involved dredging Brown Lake which abuts the condominium complex where Mr. Cole, the employer's owner, lived. The applicant continued to stay overnight at the Beach View motel in Burlington during this operation.

At some point while the applicant was working at Brown Lake, Mr. Cole told him he could swim at the condominium's private shore if he wished. On the evening of July 25, 1990, after he had been working on Brown Lake for about a week, the applicant decided to do just that.

That evening, after getting off work between five and six, the applicant went to the Beach View Hotel bar and drank four or five beers. He then went out to eat with four friends from the bar and had two gin and tonics. The five then went to the condominium's private shore at Brown Lake to swim at about 8:30 p.m., having stopped off at a convenience store to pick up some beer. The swimming beach was not well lit, and the applicant dove off a pier into shallow water, striking his head.

The respondent concedes that this swimming accident occurred. Instead, respondent asserts that the injury did not happen while the applicant was "performing services growing out of and incidental to his employment" and so is not compensable under section 102.03 (1)(c), Stats.

Section 102.03 (1)(c) and (f), Stats., provide:

"102.03 (1) Liability under this chapter shall exist against an employer only where the following conditions concur:

"(c) 1. Where, at the time of the injury, the employe is performing services growing out of and incidental to his or her employment.

"(f) Every employe whose employment requires the employe to travel shall be deemed to be performing service growing out of and incidental to the employe's employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of the employe's employment."

In this case, the first question is whether the applicant was performing services growing out of and incidental to his employment under sec. 102.03 (1)(c)1, Stats., directly, regardless of the application of sec. 102.03 (1)(f), Stats. The commission cannot so conclude. First, of course, when this injury occurred, the applicant was off-duty and well into an evening of socializing with four friends, none of whom worked for the employer. While Mr. Cole gave the applicant permission to swim at the private beach, he neither ordered him to swim there nor reasonably expected him to swim there as part of his job. The fact that offering the private beach facilities to the applicant for an off-duty swim might improve the applicant's morale is not sufficient to bring the swim within the course of the applicant's employment. Schwab v. ILHR Department, 40 Wis. 2d 686, 690 (1968).

Indeed, the parties agree that this case turns on the question of whether the applicant is in the special category of "traveling employe" within the meaning of sec. 102.03 (1)(f), Stats. If the applicant is a "traveling employe," his off-duty injury ordinarily would be compensable unless the employer shows: (1) a deviation by the employe from his business trip and (2) such deviation was for a personal purpose not reasonably necessary for living or incidental thereto. Dibble v. DILHR, 40 Wis. 2d 341, 346 (1968).

In this case, however, there is a substantial basis for arguing the applicant was not a "traveling employe," at least while he was in Burlington. The applicant resided in Burlington, at least during the dredging season. The applicant testified that, in 1990, he spent most of his overnights in Burlington, and in fact could not recall staying overnight elsewhere that summer. The record also indicates that Burlington was the employer's base of operations. Thus, the employer asserts, while the applicant may have traveled to the jobsites in Milwaukee and Illinois in 1990, the applicant did not "travel" to work in Burlington.

In support of its proposition, the employer cites Sauerwein v. ILHR Dept., 82 Wis. 2d 294 (1978). Mr. Sauerwein was employed by Wisconsin Telephone and was assigned to Southwestern Bell as part of an "employe loan" program. Mr. Sauerwein actually moved to Houston, where he lived first in a motel then an apartment paid for by Southwestern Bell. The anticipated length of the transfer was six months, and Mr. Sauerwein's duties included his normal phone installation and maintenance work. The worker was not required to travel outside the Houston area, and he had bought and titled a car in Texas.

Mr. Sauerwein was seriously injured about three months after moving to Texas. After the completion of his duties one day, the worker went to a Holiday Inn and swam, drank beer, and socialized with friends. He dove or fell into the shallow end of the pool and was rendered quadriplegic.

The commission's predecessor denied compensation. It held that Mr. Sauerwein was not a "traveling employe." More specifically, it found that his employment, while in Houston, did not require the worker to travel. According to the court, this was a finding of "ultimate fact" made on inferences drawn from the evidence that the worker anticipated staying in Houston for six months; that he had been there three months at the time of the injury; that he rented a furnished apartment in Houston; that he bought and titled a car in Houston; and that he worked regular hours and was not required to travel outside the Houston metropolitan area. Sauerwein, at 82 Wis. 2d 301.

The supreme court in Sauerwein concluded that the ultimate finding of the commission's predecessor that the applicant was not a traveling employe was reasonable on the record. Because competing inferences could be drawn, the court characterized the finding as one of ultimate fact rather than a question of law, and so held the fact finding of the commission's predecessor was conclusive. However, the court specifically stated persons in "employe loan programs" should not automatically be considered not to be traveling employes.

Of course, the facts in this case are somewhat different than those relied upon by the commission's predecessor in Sauerwein. First, the applicant here did not live in a furnished apartment; he lived in a hotel. Second, he did not buy or title a car in Wisconsin, as Mr. Sauerwein did in Texas. Third, the applicant's work was not limited to the Burlington metropolitan area; he traveled to Illinois, Milwaukee and Madison. Because the applicant traveled to other cities unlike Mr. Sauerwein, it might be easier to characterize the whole of his employment as "traveling employment." Sauerwein, at 82 Wis. 2d 301.

In other aspects, of course, the facts in this case are quite similar to those in Sauerwein. The applicant in this case, like Mr. Sauerwein, could expect to work out of Burlington for six or seven months, and had been in Burlington for three months by the time of his accident. True, he lived in a motel rather than an apartment, but both the applicant and Mr. Sauerwein received housing allowances. Also like Mr. Sauerwein, the applicant also worked a regular shift: 6 a.m. to 6 p.m. While the applicant was required to travel outside of Burlington for work assignments, that fact to some extent reinforces the conclusion that the applicant was not "traveling" when he worked in Burlington.

In resolving the question of whether the applicant was a "traveling employe," the commission looks to the wording of sec. 102.03 (1)(f), Stats., which refers to "employment requiring the employe to travel" and states that the special "traveling employe" characterization applies whenever the employe "is on a trip." Thus, even though the applicant's employment required him to travel outside Burlington, it does not follow he was "on a trip" when he was in Burlington. Rather, the record establishes Burlington as the base to which the applicant returned when he was traveling. Burlington was not just another stop on the applicant's itinerary of work assignments.

In sum, the commission concludes that the applicant was, at the time of his injury July 25, 1990, neither a traveling employe under sec. 102.03 (1)(f), Stats., nor performing services growing out of and incidental to his employment under sec. 102.03 (1)(c), Stats.

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

ORDER

The findings and order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed August 30, 1996
carlodo.wrr : 101 : 0 ND 3.25

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, 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 ALJ found credible the applicant's testimony that he had Mr. Cole's permission to swim at the condominium's private beach. The ALJ also found Dawn Hammiller's testimony about the sequence of events on the night of the injury to be quite credible, stating Ms. Hammiller had a more accurate impression of the applicant's level of intoxication than police officer Recknagel. The commission does not question any of the ALJ's credibility assessments. Rather, it reversed the ALJ's decision because it disagreed with her legal conclusion that the applicant was a traveling employe.

Because the commission concludes that the applicant was not a "traveling employe," the question of whether he was engaged in a deviation at the time of the injury need not be addressed.

The applicant also observes in its brief that if he had not been assigned to work at Brown Lake and had not been given permission to swim at the condominium's private beach, he would not have been severely injured. Consequently, the applicant asserts, his injury should be covered under sec. 102.03 (1)(e), Stats., and Allied Mfg. Ins. v. DILHR, 45 Wis. 2d 563 (1970).

However, the requirement that a worker be performing services growing out of and incidental to employment under sec. 102.03 (1)(c), Stats., is separate and distinct from the requirement that the accident causing injury arise out of that employment under sec. 102.03 (1)(e), Stats. (1) Both requirements must be met to establish a compensable claim. Stated in perhaps an oversimplified manner, the sub. (c) question of whether the applicant was "working" when injured must be answered before the sub. (e) question of whether the injury arose out of work may be addressed.

cc: ATTORNEY MICHAEL C FROHMAN
KASDORF LEWIS & SWIETLIK SC

ATTORNEY WAYNE J STUDER
KALINA WILLS WOODS GISVOLD & CLARK PLLP


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Footnotes:

(1)( Back ) Neal and Danas, Workers Compensation Handbook, sec. 3.31 (3d ed. 1990).