David S. Ide v. Labor and Industry Review Commission

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SUPREME COURT OF WISCONSIN Case No.: 97-1649 Complete Title of Case: David S. Ide, Plaintiff-Appellant, v. Labor and Industry Review Commission, Defendant-Respondent, MacFarlane Pheasant Farm, Inc., and Rural Mutual Insurance Company, Defendants-Respondents-Petitioners. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 216 Wis. 2d 116, 573 N.W.2d 901 (Ct. App. 1998, Unpublished) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: February 26, 1999 December 2, 1998 Circuit Dane Angela B. Bartell JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the defendants-respondents-petitioners there were briefs by Mark W. Andrews, Kim I. Moermond and Winner, Wixson & Pernitz, Madison and oral argument by Mark W. Andrews. For the plaintiff-appellant there was a brief by Kenneth T. McCormick, Jr., and Boardman, Suhr, Curry & Field, Madison and oral argument by Richard L. Bolton. No. 97-1649 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 97-1649 STATE OF WISCONSIN : IN SUPREME COURT FILED David S. Ide, FEB 26, 1999 Plaintiff-Appellant, Marilyn L. Graves Clerk of Supreme Court Madison, WI v. Labor and Industry Review Commission, Defendant-Respondent, MacFarlane Pheasant Farm, Inc., and Rural Mutual Insurance Company, Defendants-RespondentsPetitioners. REVIEW of a decision of the Court of Appeals. ¶1 and JON P. WILCOX, J. its insurer, Rural Reversed. MacFarlane Pheasant Farm, Inc., Mutual Insurance Company (hereinafter MacFarlane Farm ) appeal from an unpublished court of appeals decision reversing a circuit court judgment which upheld the Labor and Industry Review Commission s (LIRC) determination that the injuries sustained by the plaintiff, David S. Ide, were not compensable under the Wisconsin Worker s Compensation Act (WCA). MacFarlane Farm contends that while the court of appeals correctly found that Ide, a previous employee who injured his back while changing the tire on a van he borrowed from MacFarlane Farm, had finished work for the day and had embarked on a personal errand, it erroneously 1 concluded that Ide s No. 97-1649 changing of the tire was a benefit to the employer, and as such, was compensable under Wis. Stat. § 102.03 (1993-94).1 conclude that there is credible and substantial We evidence supporting LIRC s determination that Ide s back injury was not compensable under the WCA because he was not performing a service growing out of or incidental to his employment; rather, he was finished working for the day and had begun a purely personal errand when he was injured. court of appeals interpretation. should have We also conclude that the deferred to LIRC s reasonable Accordingly, we reverse the decision of the court of appeals. I. ¶2 The record reveals that Ide, a Massachusetts resident, began working for MacFarlane Farm in January 1989 as part of an agricultural internship from Sterling College in Vermont. Ide testified that his job originally involved crating and loading birds onto trucks to be shipped to hunting preserves, as well as cleaning vehicles and watering birds at the breeder barn. after Ide started work, he complained of back pain.2 Soon As a result, he was given jobs that did not require as much lifting. ¶3 On February 15, 1989, Ide asked for and was given permission by William MacFarlane, the president, to take the 1 All statutory references are to the 1993-94 version of the WI Statutes unless otherwise indicated. 2 Ide s medical records, including the emergency room reports dated February 15 and 16, 1989, disclose that he had a history of back pain two years prior to coming to Wisconsin for the internship. 2 No. company van to go grocery shopping after work. 97-1649 Ide did not have a vehicle; instead he would get to and from work (about one mile) by February either 15, riding Ide s with time co-workers, card had a or by bicycle. hand-written On notation, instead of a time clock stamp, indicating that he finished work at 5:30 p.m. Similar hand-written notations had been made on his time cards on 22 other occasions in the time that he had worked at the farm. At approximately 6:00 p.m., while leaving but still on MacFarlane Farm s property, Ide was driving the van when the tire went flat. As Ide was changing the tire, he injured his lower back. ¶4 claim.3 In February 1995, Ide filed a worker s compensation At the hearing before the administrative law judge (ALJ), Ide s supervisor, who finished changing the tire after Ide injured his back, confirmed that Ide had asked to use the van to go grocery shopping that night and that Ide had discussed those plans with other employees. His supervisor stated, somewhat equivocally, that Ide told him he had to change the tire to take the van grocery shopping that evening. MacFarlane also testified at the hearing. He affirmed that Ide had asked to shopping use the van to go grocery 3 and that he was not This was Ide s second application for benefits. The first application, approved in January 1993, was resolved by a Limited Compromise Agreement between the parties. Under the agreement, MacFarlane Farm denied liability and denied that the injury was work-related, but agreed to pay $17,000.00 to resolve the dispute. The agreement only settled claims through February 1992, and it did not make any provision for future claims. 3 No. running errands for the farm. have had Ide change the 97-1649 He indicated that he would not tire because of his back trouble. Rather, MacFarlane stated that the farm had a maintenance person whose responsibility it was to change the tire if there was a flat. ¶5 The ALJ, while not explicitly finding that Ide s original injury was work-related, did grant him a partial award. LIRC reversed the ALJ. In its memorandum opinion, LIRC found that at the time of the injury, Ide was not performing services growing out of and incidental to his employment. § 102.03(1)(c)2. Wis. Stat. Rather, LIRC concluded that Ide had completed work at the time of the injury and that his injury occurred after he began a purely personal errand going to the grocery store. LIRC also determined that using MacFarlane Farm s vehicle was not the usual or ordinary method by which Ide left work each day. ¶6 Court Ide sought judicial review, and Dane County Circuit Judge Angela Bartell affirmed LIRC s appealed and the court of appeals reversed. decision. Ide While the court of appeals agreed that there was sufficient credible evidence to support virtually all of LIRC s findings of fact, it nevertheless reversed, concluding that because someone had to change the tire, Ide s attempting to do so constituted a benefit for his employer a compensable petitioned this court for review. 4 event. MacFarlane Farm No. 97-1649 II. ¶7 Whether an employee is acting within the course of his or her employment under the Worker s Compensation Act is a mixed question of law and fact. Nottelson v. DILHR, 94 Wis. 2d 106, 114-15, 287 N.W.2d 763 (1980); Michels Pipeline Constr., Inc. v. LIRC, 197 Wis. 2d 927, 931, 541 N.W.2d 241 (Ct. App. 1995). Questions concerning the conduct of the employee and employer are questions of fact. Nottelson, 94 Wis. 2d at 115. The application of a statutory concept to those facts is a question of law subject to independent review. Id. III. ¶8 Ide renews his claim that several factual findings made by LIRC, and affirmed by the circuit and appellate courts, are unsupported by the evidence. Ide challenges the following findings: (1) that he had punched out from work at the time of the injury; (2) that he had completed his work for the day at the time of the injury; (3) that he was leaving the employer s property when the flat tire occurred; (4) that he had started on a personal errand before he was injured; and (5) that he did not regularly use the van as part of his employment. Ide insists his testimony raises questions about those findings. ¶9 LIRC s findings of fact are conclusive on appeal so long as they are supported by credible and substantial evidence. Wis. Stat. § 102.23(6); Nottelson, 94 Wis. 2d at 114. evidence need conjecture. only be sufficient to exclude speculation The or Bumpas v. ILHR Dept., 95 Wis. 2d 334, 343, 290 5 No. N.W.2d 504 (1980). 97-1649 This court does not weigh the evidence or pass upon the credibility of the witnesses; rather, the weight and credibility of evidence is to be determined by LIRC. Brakebush Bros., Inc. v. LIRC, 210 Wis. 2d 623, 630, 563 N.W.2d 512 (1997). Our role on review is to search the record to locate credible evidence that supports LIRC s factual findings. Id. We conclude that the record contains credible and substantial evidence supporting all but one of LIRC s findings. LIRC s finding that Ide did not use the van in his work on a regular basis is unsupported. Both Ide and MacFarlane testified that Ide used the farm vehicles regularly. Except for this unsupported statement, we affirm LIRC s findings. IV. ¶10 Whether the facts, as found by LIRC, fulfill a particular legal standard is a question of law which we review de novo. 94 Nottelson, Wis. 2d at 115-16. Thus, we independently determine whether Wis. Stat. § 102.03(1)(c)2 which conditions worker s compensation liability on the employe going to and from his or her employment in the ordinary and usual way, while on the premises of the employer . . . [and while] performing service growing out of and incidental to employment provides coverage for Ide s injuries. of law, we apply one of three agency s interpretation: great novo. Hagen 210 v. LIRC, When reviewing questions levels weight, Wis. 2d 12, of deference due 18, to the or de N.W.2d 454 weight 563 (1997); Kelley Co., Inc. v. Marquardt, 172 Wis.2d 234, 244-45, 493 N.W.2d 68 (1992). 6 No. ¶11 97-1649 The great weight standard is the highest level of deference given to an agency conclusion of law or statutory interpretation, and is accorded if the administrative agency s experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute. Kelley Co., 172 Wis. 2d at 244. We conclude that LIRC s determination on this issue is entitled to great weight because LIRC has gained experience and expertise in determining when an employee is acting within the scope of his or her employment. Nigbor v. DILHR, 120 Wis. 2d 375, 384, 355 N.W.2d 532 (1984). ¶12 must Under uphold the the great agency weight standard, interpretation Hagen, 210 Wis. 2d at 20. if a it reviewing is court reasonable. An agency s interpretation of a statute is unreasonable if it directly contravenes the words of the statute, is clearly contrary to legislative intent, or is otherwise . . . without rational basis. Lisney v. LIRC, 171 Wis. 2d 499, 506, 493 N.W.2d 14 (1992). ¶13 Wisconsin Stat. § 102.03(1)(a)-(e) conditions of liability under the WCA.4 sets forth The provision at issue here, § 102.03(1)(c)2, provides in part: 4 Wisconsin Stat. § 102.03(1) provides: (1) Liability under this chapter shall exist against an employer only where the following conditions occur: (a) (b) Where the employe sustains an injury. Where, at the time of the injury, both the employer and employe are subject to the provisions of this chapter. . . . . 7 the No. 97-1649 (1) Liability under this chapter shall exist against an employer only where the following conditions occur: (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 . . . is performing service growing out of and incidental to employment. ¶14 refers The statutory clause in the ordinary and usual way to the mode and route of transportation. Cmelak v. Industrial Comm n, 27 Wis. 2d 552, 556, 135 N.W.2d 304 (1965) (claimant going to work by precisely the same mode of transportation, following the same route, and arriving at the same destination as she had done during the whole course of her employment). LIRC determined that using his employer s vehicle was not the usual and ordinary method by which Ide left for work each day; he biked or hitched rides. ¶15 As noted by the court of appeals, whether borrowing his employer s van was the equivalent to hitching rides with others depends on whether mode is defined as broadly as traveling by car or as narrowly as using a particular vehicle. LIRC determined that driving a vehicle was a qualitatively (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 . . . is performing service growing out of and incidental to employment. . . . . (d) Where the injury is not intentionally selfinflicted. (e) Where the accident or disease causing injury arises out of the employe s employment. (f) [Relating to traveling employes.] (g) [Relating to members of the state legislature.] 8 No. 97-1649 different mode of coming and going from work than riding as a passenger in determination a co-worker s Ide that vehicle. traveling was not Because from LIRC s work in the ordinary and usual way when he was injured is reasonable, we defer to the agency s resolution of the issue. ¶16 As to the premises clause of the statute, it is clear Ide was on MacFarlane injury. This fact alone does not bring about liability for the employer. Farm s property when he sustained the Rather, Ide must also be engaged in his usual duties prior to the injury. Bruns Volkswagen, Inc. v. DILHR, 110 Wis. 2d 319, 322, 328 N.W.2d 886 (Ct. App. 1982). However, Ide s employment did not include maintenance of the farm s vehicles; the farm had a maintenance person whose job it was to maintain the vehicles and equipment. In addition, he was physically limited in the tasks he could perform because of his complainedof back problems. ¶17 and The last clause, performing service growing out of incidental to his or her employment, is interchangeably with the phrase course of employment. v. City (1997). of Milwaukee, Both 208 phrases Wis. 2d refer to 95, the 104, 559 time, circumstances under which the injury occurred. used Weiss N.W.2d place, 588 and Id. at 104-05 (quoting Goranson v. DILHR, 94 Wis. 2d 537, 549, 289 N.W.2d 270 (1980)). An injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while he [or she] is fulfilling 9 No. his [or her] duties incidental thereto. Weiss, 208 Wis. 2d at or 105 engaged in (quoting 1 doing The 97-1649 something Law of Worker s Compensation § 14.00). ¶18 LIRC concluded that Ide was not performing services growing out of and incidental to his employment, i.e, not within the time, place, and circumstances of employment when the injury occurred. LIRC determined that Ide had completed work at the time of the injury, that he was injured after he began a purely personal errand, maintenance of and the that van as he was part of not his responsible employment. for the These conclusions are reasonable. ¶19 The record shows that: Ide had asked permission to use the van for a personal errand that night, he had discussed those plans with other employees that day, his time card had a sign-out time of 5:30 p.m., he had left the breeder barn where he performed many of his duties, the injury occurred at 6:00 p.m., and Ide did not seek additional compensation beyond 5:30 p.m. for the extra time he took to change the tire (repairing the vehicle). In fact, Ide told his supervisor, who finished changing the tire, that he had to change the tire to go shopping that evening. On the basis of these facts, it was reasonable for LIRC to conclude that by changing the tire to the van, Ide was not performing a service growing out of and incidental to his employment, but rather opted to change the tire to complete his personal errand of going to the grocery store. The injury did not occur within the period of employment (Ide was signed 10 No. 97-1649 out), nor was changing a vehicle tire part of Ide s duties or incidental to his employment (he was in the process of running a personal errand, he was limited in the physical labor he could perform, and a person was on the staff who was responsible for vehicle maintenance). ¶20 Even though the court of appeals found LIRC s factual findings to be supported by credible evidence, it determined that (1) Ide s employment placed him in the position where changing a tire might occur because he used the vehicle to bring feed and water to the birds and he was given permission for after hours use; and (2) the tire had to be changed in order for the van to be used the next day. For these reasons, the court concluded that the changing of the tire occurred while Ide was providing a benefit to his employer, and therefore, his injury occurred while he was performing a service growing out of and incidental to his employment. ¶21 First, permission to the drive fact the We disagree. that van after Ide s employer hours gave does support not him a finding that he was acting within the scope of his employment. See e.g., Sadler v. Western Moulding Co., 6 Wis. 2d 278, 281, 94 N.W.2d 602 (1959) (employee who was using employer s car while engaged in a personal errand does not mean acting within scope of his Cleaners, employee employment); 253 was Wis. using Adams 334, v. 336, company Quality 34 N.W.2d truck for Serv. 148 Laundry (1948) personal & Dry (because errand, had finished work for the day, and no duty connected with employment furnished the occasion for the trip, employee not acting within 11 No. 97-1649 the scope of his employment); and Gewanski v. Ellsworth, 166 Wis. 250, 254, 164 N.W. 996 (1917) (effort of master to accommodate and assist the servant does not bring within the scope of the master s employment acts of the servant otherwise without such scope). ¶22 In addition, the question of whether an employer received a benefit from its employee is a question of fact, Schwab v. (1968), ILHR which Dept., is 40 Wis. conclusive 2d so 686, long 693, as it 162 is N.W.2d supported credible and substantial evidence, Wis. Stat. § 102.23(6). role on review is to search the record to evidence to support LIRC s factual findings. locate 548 by Our credible Brakebush Bros., 210 Wis. 2d at 630. ¶23 The facts in this case support LIRC s findings. Ide was not on duty; he was, at the time of the flat, on a personal errand which he stated could only be completed if he changed the flat tire. Nor was he engaged in an activity his employer required or asked of him; Ide was not responsible for changing tires on vehicles or maintenance of vehicles as part of his employment. In fact, his employer tried to limit the amount Ide lifted after he complained of back problems. ¶24 the Lastly, it appears that the court of appeals combined conditions that Ide s injury must arise out of his employment, Wis. Stat. § 102.03(1)(e), and that it must occur while he was performing a service growing out of and incidental to his employment, § 102.03(1)(c)2. While both conditions must be satisfied, the phrase arising out of employment refers to 12 No. 97-1649 the causal origin of the injury, whereas the phrase performing service growing out of and incidental to employment refers to the time, place, occurred. and circumstances under Goranson, 94 Wis. 2d at 549. which the injury In interpreting the former, § 102.03(1)(e), we have adopted the positional risk doctrine: [A]ll that is required is that the obligations or conditions of employment create the zone of special danger out of which the injury arose. Butler v. Industrial Comm., 265 Wis. 380, 385, 61 N.W.2d 490 [,492 (1953)]. In other words, there is a causal connection between the employment and the injury where the employee is obligated by his employment to be present at the place where he encounters injury through the instrumentality of a third person or an outside force. . . . Bruns Volkswagen, 110 Wis. 2d at 326 (quotations omitted). ¶25 We disagree with the court of appeals determination that Ide s employment placed him in a position where changing a tire might occur. Ide simply was not obligated by his employment to be present on the farm in the circumstances in which he was injured. As Ide testified, his duties did not include vehicle maintenance. the work hours, the farm s If the flat had occurred during maintenance man responsible for changing the tire, not Ide. would have been He was also in the process of running a personal errand after hours when the flat occurred, which Ide admitted could not have been completed without changing the tire. ¶26 Unlike the injured employees in Employers Mutual Liability Insurance Co. v. ILHR Deptartment, 52 Wis. 2d 515, 190 13 No. 97-1649 N.W.2d 907 (1971) and Fels v. Industrial Commission, 269 Wis. 294, 69 N.W.2d 225 (1955), the activity Ide engaged in was not reasonably required employment. by the terms and conditions Employers Mutual, 52 Wis. 2d at 521. of his In both Employers Mutual and Fels, the injured employees were required to maintain their vehicles and keep them condition as a condition of their employment. 52 Wis. 2d at 522; Fels, 269 Wis. at 298. in good operating Employers Mutual, Such is not the case here; Ide was not responsible for changing tires on vehicles or maintenance of vehicles as part of his employment, the maintenance person was. ¶27 in There must be some connection with the employer s work which the employee was engaged or permitted to perform. Bruns Volkswagen, 110 Wis. 2d at 326-27; Brienen v. PSC, 166 Wis. 24, 27, 163 N.W. 182 (1917). Ide s changing of the tire does not have any such connection. Because we conclude that the facts support LIRC s determination that by changing the tire, Ide was not performing a service growing out of and incidental to his employment, we reverse the court of appeals' decision to the contrary. By the Court. The decision reversed. 14 of the court of appeals is 1

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