Heritage Mutual Insurance Company v. William E. Larsen
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2001 WI 30 SUPREME COURT OF WISCONSIN Case No.: 98-3577 Complete Title of Case: Heritage Mutual Insurance Company and Larsen Laboratories, Inc., Plaintiffs-Appellants-Petitioners, v. William E. Larsen and Labor and Industry Review Commission, Defendants-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 234 Wis. 2d 525, 611 N.W.2d 470 (Ct. App. 2000-Unpublished) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: April 4, 2001 January 31, 2001 Circuit Milwaukee Michael G. Malmstadt CROOKS, J., dissents (opinion filed). WILCOX and SYKES, J.J., join dissent. Not Participating: ATTORNEYS: For the plaintiffs-appellants-petitioners there were briefs by Richard T. Mueller, John C. Possi and Mueller, Goss & Possi, S.C., Milwaukee, and oral argument by Richard T. Mueller. For the defendant-respondent, William E. Larsen, there was a brief by Robert T. Ward and Ward Law Firm, Waukesha, and oral argument by Robert T. Ward. For the defendant-respondent, Labor and Industry Review Commission, the cause was argued by Stephen M. Sobota, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. 2 2001 WI 30 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 98-3577 STATE OF WISCONSIN : IN SUPREME COURT Heritage Mutual Insurance Company and Larsen Laboratories, Inc., FILED Plaintiffs-Appellants-Petitioners v. APR 4, 2001 William E. Larsen and Labor and Industry Review Commission, Cornelia G. Clark Clerk of Supreme Court Madison, WI Defendants-Respondents. REVIEW of a decision of the Court of Appeals. Affirmed in part and reversed in part. ¶1 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE. This is review of an unpublished decision of the court of appeals.1 a The court of appeals affirmed an order of the Circuit Court for Milwaukee County, Michael Malmstadt, Judge. The circuit court affirmed in part and reversed in part a decision of the Labor and Industry worker's Review compensation Commission benefits to (the Commission) William E. Larsen awarding for the partial amputation of his fingers and thumb, which were injured by frostbite. 1 Heritage Mut. Ins. Co. v. Larsen, No. 98-3577, unpublished slip op. (Wis. Ct. App. March 14, 2000) (per curiam). No. ¶2 to award The circuit court affirmed the Commission's decision worker's Commission's benefits regarding the but reversed reduction 15% the of The court of appeals affirmed the order of the circuit court. this compensation decision compensation. in 98-3577 Heritage Mutual Insurance Company seeks review court. We affirm both aspects of the Commission's decision. ¶3 On a cold winter day in 1996, Larsen was traveling to his northern Wisconsin mobile home, which doubled as a sales office. He stopped on the way at a tavern and consumed several drinks after he had taken two diet pills. Larsen later passed out trying to enter the mobile home, spent the night exposed to the below-zero employer and together as temperatures, its insurance Heritage Mutual) and suffered company argue frostbite. (hereafter that they The referred should not to be liable in any way for the employee's injury. ¶4 The Commission, however, concluded that Larsen was entitled to compensation under Wis. Stat. § 102.03(1)(f) (199798)2 of the worker's compensation law as a traveling employee of 2 Wisconsin follows: Stat. § 102.03(1)(f) (1997-98) provides 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. 2 as No. Larsen Laboratories, Inc., because he was 98-3577 performing acts "reasonably necessary for living or incidental thereto" at the time of his injury. The Commission further concluded that the award should be reduced by 15% under Wis. Stat. § 102.58 because Larsen's injury resulted from intoxication. ¶5 worker's The present case must be viewed in the context of the compensation law. The worker's compensation law strikes a balance between the competing interests of employers and employees. Although employers are liable for more injuries under worker's compensation law than under fault-based tort law, the amount of compensation employers must pay to injured employees is limited under worker's compensation, and employers are immune from employee tort actions. In return for recovering for injury even when they are at fault, employees are awarded less money than they would recover in fault-based tort actions, and employees give up the right to bring tort actions against employers.3 their "Worker's compensation laws are basically economic regulations by which the legislature, as a matter of public policy, has balanced competing societal interests."4 All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated. 3 See Bauernfeind v. Zell, 190 Wis. 2d 701, 713, 528 N.W.2d 1 (1995). 4 Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 180, 290 N.W.2d 276 (1980). 3 No. ¶6 are 98-3577 Under Wisconsin worker's compensation law, employers liable for work-related injuries that befall employees, even if an employee is intoxicated. their Nearly sixty years ago the court recognized that "[t]he wisdom of a policy which permits drunken employees to recover even a diminished compensation, where the intoxication causes injury, may be arguable as an original proposition, but after all, this is a matter in which legislative worker's the power legislative plenary."5 is compensation law, intention is Therefore, "[i]ntoxication clear under does and the Wisconsin not defeat a workmen's compensation claim but only decreases the benefits."6 ¶7 agency, Furthermore, the the Labor and legislature Industry Review has authorized Commission, to a state decide disputes between employers and employees relating to worker's compensation, and the legislature and our case law have limited judicial review of the Commission's decisions. ¶8 We conclude that the record contains substantial and credible evidence to support the Commission's findings of fact in this case. We further conclude that the Commission's application of the law to this fact situation must be affirmed as a reasonable interpretation, even if this court might have decided the case differently. 5 Nutrine Candy Co. v. Indus. Comm'n, 243 Wis. 52, 55-56, 9 N.W.2d 94 (1943). 6 Dibble v. ILHR Dep't, 40 Wis. 2d 341, 350, 161 N.W.2d 913 (1968). 4 No. ¶9 98-3577 Accordingly, we affirm that part of the order of the circuit court and that part of the decision of the court of appeals awarding Larsen benefits under Wis. Stat. § 102.03(1)(f) as a traveling necessary injury. for employee living who or was performing incidental thereto acts at reasonably the time of We reverse that part of the order of the circuit court and that part of the decision of the court of appeals denying the 15% reduction ordered by the Commission under Wis. Stat. § 102.58 because Larsen's injury resulted from intoxication. I ¶10 The Commission determined the following facts upon which it based its decision about awarding worker's compensation to Larsen. ¶11 Larsen business William E. Larsen Laboratories, owned by Inc., worked Larsen a in metals and his various capacities testing wife. for and analysis of Larsen's One functions within the business was sales, including phone calls and personal visits to potential customers. ¶12 At approximately 12:30 p.m. on January 31, 1996, Larsen left the company's office in Oak Creek, Wisconsin, to make the 150-mile drive to Tigerton, Wisconsin, where he and his wife owned a mobile home that they sometimes used as a sales office. Larsen intended to spend the night in the mobile home, do company paperwork there, and then make a sales call to a former customer the next day. 5 No. ¶13 98-3577 Upon arriving in Tigerton at about 3:30 p.m., Larsen stopped to buy liquor, groceries, and feed corn for deer. then proceeded to the local tavern. He He admitted having four to five mixed drinks there, over a period of approximately one hour and forty-five minutes. The alcoholic beverages were in addition to a couple of Dexatrim diet pills Larsen had taken earlier that day. After leaving the tavern, Larsen drove to his mobile home at approximately 6 p.m., intending to prepare dinner and work on sales matters. ¶14 However, Larsen had difficulty opening the door to the mobile home, which was blocked by snow, and also had trouble getting his key to work. slight headache. He felt dizzy and suffered from a He broke a plastic window in the door, reached through the hole to open the door from the inside, and then lost consciousness. When he woke up the next morning at about 8:45 a.m., he was on the floor inside the trailer with the door open. The outside reached the temperature home, and had been Larsen 25 below suffered zero severe when Larsen frostbite, resulting in the amputation of the fingers and thumb of both hands. ¶15 The Commission concluded that Larsen's purpose in going to Tigerton was business-related and that Larsen was a traveling employee pursuant to Wis. Stat. § 102.03(1)(f). Commission further determined that Larsen was injured The while performing acts reasonably necessary for living or incidental thereto and was not engaged in a deviation for a private or a personal purpose at the time of 6 injury. According to the No. 98-3577 Commission, at the time of injury, Larsen was simply attempting to enter his domicile for the night, an act reasonably necessary for living. ¶16 In reaching this conclusion, the "positional risk doctrine." the Commission applied The positional risk doctrine is a body of law that is used to determine whether an accident causing injury § 102.03(1)(f). arose out of employment under Wis. Stat. Under the positional risk doctrine an injury is compensable if the injury would not have happened except that the employment put the claimant in the position where he was injured, that is, the employment put the employee in a zone of special danger.7 ¶17 According to the Commission, the zone of special danger to which Larsen was exposed in the present case was the extremely cold weather in Tigerton, and it was by reason of an employment activity (sheltering himself for the night while a traveling employee) that Larsen was exposed to this special danger. ¶18 The determinative fact, the Commission wrote, was that Larsen was performing acts reasonably necessary to living when his injury occurred. Even if the trip to the tavern was a deviation, Commission, Larsen wrote returned the to the home; at 7 the the deviation time of ceased injury he when was See, e.g., Weiss v. City of Milw., 208 Wis. 2d 95, 107, 559 N.W.2d 588 (1997); Goranson v. ILHR Dep't, 94 Wis. 2d 537, 55557, 289 N.W.2d 270 (1980); Nash-Kelvinator Corp. v. Indus. Comm'n, 266 Wis. 81, 86, 62 N.W. 2d 567 (1954). 7 No. 98-3577 entering his home, an act reasonably necessary for living. the Commission concluded that Larsen was Thus entitled to compensation, reasoning as follows: Even were it to be found that the applicant had deviated from acts reasonably necessary for living by going to the tavern, a finding which the commission does not make, it would have to be found that the deviation had ceased by the time the applicant arrived at the trailer. ¶19 The Commission inferred that Larsen's intoxication was a substantial factor in causing the frostbite "because it was probable that he remained asleep for such an extended period due in part to his intoxication." Therefore the Commission reduced the worker's compensation award by 15%. II ¶20 The first issue in this case is what standard of review this court should apply in reviewing the Commission's decision under Wis. Stat. § 102.03(1)(f). ¶21 The Commission's question of fact and law. determination presents a mixed Thus two standards of review come into play. ¶22 The historical Commission's facts relating determinations to Larsen's regarding conduct and the Larsen's purpose in traveling to Tigerton are findings of fact. ¶23 The Commission's determination of whether Larsen was performing service growing employee's employment or was out of engaging 8 and in incidental a deviation to the for a No. private or personal purpose raises questions of law. 98-3577 Another question of law is whether the accident arose out of a hazard of such service. ¶24 Judicial review of the Commission's findings of fact is significantly limited by statute. First, the legislature has decreed that a court may not set aside an order or award unless "the findings of fact by the commission do not support the order or award."8 Second, the statutes provide that findings of fact made by the Commission acting within its powers shall, in the absence of fraud, be conclusive.9 8 Third, the statute instructs Wisconsin Stat. § 102.23(1)(e) provides as follows: Upon such hearing, the court may confirm or set aside such order or award; and any judgment which may theretofore have been rendered thereon; but the same shall be set aside only upon the following grounds: 1. That the commission acted without or in excess of its powers. 2. That the order or award was procured by fraud. 3. That the findings of fact by the commission do not support the order or award. The only ground relevant in the present case for setting aside the Commission's award is § 102.23(1)(e)3. 9 Wisconsin Stat. § 102.23(1)(a) provides, inter alia: The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive. The order or award granting or denying compensation, either interlocutory or final, whether judgment has been rendered on it or not, is subject to review only as provided in this section and not under ch. 227 or s. 801.02. 9 No. 98-3577 that a court shall not substitute its judgment for that of the Commission as to the weight or credibility of the evidence on any finding of fact. A court may set aside the Commission's order or award if the order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.10 The Commission's findings must be upheld even though they may be contrary to the great weight and clear preponderance of the evidence.11 ¶25 growing The question of whether Larsen was performing service out of and incidental to the employee's employment, whether he was engaged in a deviation for a private and personal purpose, and whether the accident arose out of a hazard of such service involves an interpretation of Wis. Stat. § 102.03(1)(f) and an application of the statute to the facts in the present case. of Interpretation and application of statutes are questions law.12 10 The court has recognized, however, that when the Wisconsin Stat. § 102.23(6) provides: If the commission's order or award depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's order or award and remand the case to the commission if the commission's order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence. 11 Goranson, 94 Wis. 2d at 554. 12 Wisconsin Elec. Power Co. v. LIRC, 226 Wis. 2d 778, 787, 595 N.W.2d 23 (1999); CBS, Inc. v. LIRC, 219 Wis. 2d 564, 572, 579 N.W.2d 668 (1998). 10 No. 98-3577 legislature has vested a state agency with the administration of a statute, the agency's decision, although not controlling, is entitled to deference.13 We have previously stated that great weight deference is appropriate in the following circumstances: (1) the agency is charged by the legislature with administering the statute; (2) the interpretation of the agency is one of long standing; (3) the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) the agency's interpretation will provide uniformity in the application of the statute.14 ¶26 All these circumstances exist in the present case. The Commission is charged by the legislature with administering the worker's compensation law, the Commission's interpretation of the traveling employee statute is of long standing, the Commission employed its expertise in its interpretation of the statute, and the Commission's interpretation of the traveling Earlier cases indicated that the application of the statute to the facts was a question of fact and that the Commission's decision would be upheld if it was supported by credible and substantial evidence. See, e.g., Hunter v. ILHR Dep't, 64 Wis. 2d 97, 102, 218 N.W.2d 314 (1974). In all of the cases, however, the court repeatedly stated that it would not set aside a Commission's decision unless the decision was unreasonable. 13 This court reviews the Commission's determination independently of the court of appeals or circuit court, benefiting from their analysis. West Bend Co. v. LIRC, 149 Wis. 2d 110, 117, 438 N.W.2d 823 (1989). 14 CBS, Inc., 219 Wis. 2d at 572. 11 No. 98-3577 employee statute provides uniformity in the application of the traveling statute.15 employee Under these circumstances the court will give the Commission's application of the statute to the facts in this case great weight deference. ¶27 court Under the great weight deference standard of review, a will application uphold of the the Commission's statute to the interpretation is unreasonable.16 interpretation facts found and unless the An unreasonable interpretation of a statute is one that directly contravenes the words of the statute, is clearly contrary to legislative intent, or is otherwise without rational basis.17 ¶28 Heritage Mutual asks this court to reconsider the appropriate standard of review and asks the court to subject the Commission Section to 102.23 stricter of the judicial review. statutes We governing cannot judicial do so. review represents a considered legislative judgment that the Commission is the appropriate institution to make findings of fact, so long as credible and substantial evidence exists. In keeping with Wis. Stat. § 102.23, we have concluded that in cases such as the one before us, the Commission's interpretation and application of Wis. deference 15 Stat. and § 102.03(1)(f) will be upheld will so be long given as the great weight Commission's CBS, Inc., 219 Wis. 2d at 572-73. 16 Wisconsin Elec. Power Co., 226 Wis. 2d at 787; CBS, Inc., 219 Wis. 2d at 572-73. 17 CBS, Inc., 219 Wis. 2d at 573. 12 No. decision is reasonable. judicial review in 98-3577 The legislative purpose in restricting worker's compensation is to discourage litigation so as to attain speedy justice for the employee.18 This court's standard of review is governed by this legislative purpose. III ¶29 fact Heritage Mutual disputes the Commission's findings of that Larsen's purpose in traveling to engage in a business trip for his employer. Tigerton was to In its brief to this court, Heritage Mutual refers to evidence that Larsen had a non-business purpose for traveling to Tigerton. There is, however, competing evidence from which the Commission found that Larsen's purpose was to transact business. ¶30 The Commission's finding of fact that Larsen's purpose was to engage in a business trip and that he was a traveling employee is supported by credible and substantial evidence.19 Heritage Mutual is asking this court to substitute its judgment for that of the Commission as to the weight or credibility of the evidence on a finding of fact. We are prohibited by statute from doing so. 18 Goranson, 94 Wis. 2d at 553; Consolidated Papers, Inc. v. ILHR Dep't, 76 Wis. 2d 210, 216, 251 N.W.2d 69 (1977); R.T. Madden v. ILHR Dep't, 43 Wis. 2d 528, 536, 169 N.W.2d 73 (1969). 19 CBS, Inc., 219 Wis. 2d at 568 n.4. 13 No. ¶31 In reviewing the Commission's legal 98-3577 conclusion that Larsen was entitled to worker's compensation, we examine Wis. Stat. § 102.03(1)(f). Section 102.03(1)(f) provides that every traveling employee is covered for worker's compensation purposes at all times while on a trip, including all acts reasonably necessary for living or incidental thereto, except when engaged in a deviation for a private or personal purpose. The statute reads as follows: 102.03 (1) Liability under this chapter shall exist against an employer only where the following conditions occur: . . . (c) Where, at the time of the injury, the employe is performing service growing out of and incidental to his or her employment. . . . (e) Where the accident or disease causing arises out of the employe's employment. injury (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. ¶32 traveling The purpose of Wis. Stat. § 102.03(1)(f) is to give employees broader protection causes them to be away from home.20 20 when their employment As this court has often Wisconsin Elec. Power Co., 226 Wis. 2d at 788; CBS, Inc., 219 Wis. 2d at 579. 14 No. noted, after the court had denied compensation for 98-3577 injuries arising from normal living activities of traveling employees, the legislature order to enacted expand the traveling protections for employee traveling provision employees.21 in The statute must be liberally construed to afford coverage for all services that can be reasonably said to come within it.22 ¶33 The statute creates a presumption that a traveling employee is performing services incidental to employment at all times during statutory the business presumption, the trip.23 In order to employer must show both rebut the that the employee deviated from the business trip and that the deviation was for a private or personal purpose that was not reasonably necessary for living or incidental thereto.24 ¶34 The Commission concluded that even if Larsen's trip to the tavern was a deviation from the business trip for a personal purpose, the deviation ceased by the time he arrived at the mobile home. special The extreme cold weather in Tigerton was a zone of danger to which Larsen was exposed by reason of an employment activity, according to the Commission. 21 Wisconsin Elec. Power Co., 226 Wis. 2d at 788; Hansen v. Indus. Comm'n, 258 Wis. 623, 628, 46 N.W.2d 754 (1951). 22 Wisconsin Elec. Power Co., 226 Wis. 2d at 792; CBS, Inc., 219 Wis. 2d at 579. 23 Wisconsin Elec. Power Co., 226 Wis. 2d at 788-89; CBS, Inc., 219 Wis. 2d at 578-79. 24 Wisconsin Elec. Power Co., 226 Wis. 2d at 789-90. 15 No. ¶35 Applying the great weight deference 98-3577 standard, the question for this court is whether the Commission's application of the statute to the facts in the present case is reasonable. ¶36 The law is clear that an employee is not covered under the worker's compensation law if injured during a deviation. The law is equally clear that an employee who has deviated will be covered under the worker's compensation law once the employee resumes activities that are reasonably necessary to living. In Lager v. ILHR Department, 50 Wis. 2d 651, 661, 185 N.W.2d 300 (1971), this court expressed this position as follows: It is clear, as a matter of law, that, in the event a salesman commences travel in the course of his employment and subsequently deviates from that employment but later resumes his route which he would have to follow in the pursuance of his employer's business, the deviation has ceased and he is performing services incidental to and growing out of his employment.25 ¶37 are a Whether Larsen's multiple drinks at the local tavern deviation for purely personal purposes not reasonably necessary to living or incidental thereto is irrelevant in this case because benefits in Larsen, other unlike the worker's claimant-employees compensation cases denied involving intoxication, was not injured while at the tavern or while on the road coming from or going to the tavern. In contrast, Larsen was injured at his mobile home, when he struggled in the cold to open the door and lost consciousness. 25 See also Olson v. Indus. Comm'n, 273 Wis. 272, 275-76, 77 N.W.2d 410 (1956); Nutrine Candy Co., 243 Wis. at 56. 16 No. ¶38 98-3577 The Commission concluded that by the time Larsen was attempting to enter his mobile home, he was engaged in an act that was reasonably necessary to living or incidental thereto. The deviation, if any, had concluded, wrote the Commission, and Larsen had resumed the route that he would have to follow in the pursuit of his employer's business. ¶39 Granting the Commission's decision the great weight deference due it, we affirm the decision as did the circuit court and court of appeals. It is reasonable. The Commission's decision does not directly contravene the words of the statute. It is not represents a supported by clearly contrary rational conclusion credible and to legislative based upon substantial intent. factual It findings evidence. The Commission's decision is consistent with the legislative intent to give traveling employees broader protection when working away from home.26 ¶40 Heritage Mutual seems to argue that Larsen's stop at the tavern and his resulting intoxication were such that the deviation continued even upon Larsen's home, his business site while traveling. return to his mobile Heritage Mutual urges this court to reverse the Commission's conclusion by imposing an outer limit on an employee's ability to resume his employment following a substantial deviation. decision of the Michigan supreme It refers this court to a court, in which that court stated that the right to coverage is not a "blank check" that 26 CBS, Inc., 219 Wis. 2d at 579. 17 No. 98-3577 the deviating employee may "cash" at any time no matter how extensive the deviation. Under the reasoning of the Michigan supreme court, a significant deviation may break the employment nexus.27 ¶41 In applying worker's compensation statutes, this court has declined to set forth a bright-line rule regarding when a deviation will break the employment nexus. See Van Roy v. Industrial Comm'n, 5 Wis. 2d 416, 425-26, 92 N.W.2d 818 (1958). Rather than adopt a bright-line rule barring recovery based on the time or distance of the deviation, this court concluded that variations in the nature and setting of employment call for a case-by-case inquiry. ¶42 Id. at 425-26. In the present case, the Commission concluded that, if a deviation had occurred, the business trip resumed when Larsen was at the home; therefore, no break in the nexus of employment occurred. ¶43 This decision is reasonable. Finally, Heritage Mutual argues that even if Larsen was engaged in an employment activity at the time of his injury, his injury was caused by factors that were purely personal to him. Thus Heritage Mutual is arguing that the accident did not arise out of § 102.03(1)(f). Commission's intoxication. a hazard of his service under Wis. Stat. Heritage Mutual urges this court to reverse the determination based on the evidence of Larsen's We conclude, however, that the Commission acted 27 See Bush v. Parmenter, Forsythe, Rude & Dethmers, 320 N.W.2d 858, 865 (Mich. 1982). 18 No. reasonably in intoxication light reduces, employee's recovery. ¶44 In intoxication of but legislative does not determination necessarily that eliminate, an Wis. Stat. § 102.58. Wisconsin, does the 98-3577 not unlike bar a several worker's other states,28 compensation award. Instead, the legislature has instructed the Commission to reduce a worker's compensation award by 15% if the injury resulted from intoxication.29 judgment Section regarding the 102.58 represents extent to the which legislature's an employee's intoxication should affect recovery under worker's compensation. ¶45 Evidence of intoxication is relevant to the determination of whether the employee was engaged in a deviation at the time of injury. The Commission may, however, determine 28 See, e.g., Tenn. Code Ann. § 50 6 110(a) (2000) (denying compensation where injury is due to intoxication); Ohio Rev. Code Ann. § 4123.54 (Anderson 2000) (denying compensation where injury resulted from intoxication); Ind. Code Ann. § 22-3-2-8 (Michie 2000) (denying compensation when injury is due to intoxication). See also Idaho Code § 72-208 (Michie 2000) (denying income benefits where "intoxication is a reasonable and substantial cause of an injury"). Like Wisconsin, Idaho used to require only a percentage reduction in benefits for injuries caused by intoxication. See Hatley v. Lewiston Grain Growers, Inc., 552 P.2d 482 (Idaho 1976) (applying a 50% reduction in accordance with prior Idaho statute). 29 Wisconsin provides: Stat. § 102.58, Decreased compensation, If injury . . . results from the intoxication of the employe by alcohol beverages, as defined in s. 125.02 (1), . . . the compensation and death benefit provided in this chapter shall be reduced 15% but the total reduction may not exceed $15,000. 19 No. 98-3577 that an employee, although intoxicated, was not engaged in a deviation at the time of injury. "This court has pointedly refrained from ruling as a matter of law that intoxication is synonymous with personal deviation. . . . [I]ntoxication, while indicative of intent to deviate, does not per se defeat a claim but traveling only benefits."30 decreases employee under Wis. Stat. That § 102.03(1)(f) change the effect of Wis. Stat. § 102.58. would give traveling employees employees. Such a intent give employees to result is less was does a not To conclude otherwise protection contrary broader Larsen to the protection than other legislature's when their employment causes them to be away from home.31 ¶46 Heritage Mutual further relies on Goranson v. ILHR, 94 Wis. 2d 537, 289 N.W.2d 270 (1980), in which the court upheld the Commission's denial of coverage to a traveling employee who, while in a hotel room with a woman who was not his spouse, climbed out of the window of his third-floor room and jumped from the ledge. The Goranson court concluded that there was credible evidence to support the Commission's determination that the employee's injury did not arise out of a zone of special danger created by the fact that his employment required him to be at the hotel, but rather out of forces that were purely personal to the employee. 30 City of Phillips v. ILHR Dep't, 56 Wis. 2d 569, 579, 202 N.W.2d 249 (1972). 31 See Wisconsin Electric Power Co., 226 Wis. 2d at 788; CBS, Inc., 219 Wis. 2d at 579. 20 No. ¶47 Heritage Mutual attempts to draw an 98-3577 analogy from Goranson to the present case, arguing that Larsen's injury did not arise out of the cold weather, which is the zone of special danger created by his employment, but rather out of Larsen's own intoxication, a force that was purely personal to him. ¶48 However, Goranson does not stand for the proposition that an employee is barred from recovery when a purely personal force contributes to an injury. Indeed, the court in Goranson made clear that an injury is noncompensable if the Commission concludes that the injury was caused by purely personal forces, so that employment contributes nothing to the injury. See Goranson, 94 Wis. 2d at 556-57. ¶49 Weiss We addressed the limits of the Goranson holding in v. (1997), City when worker's of we Milwaukee, concluded compensation information disclosed to the 208 that when an the employee's information Wis. 2d 95, employee employer to the was N.W.2d 588 entitled to disclosed assaultive contributed 559 personal ex-husband. employee's The injury. Even though the animus of the ex-husband was a factor purely personal to the employee, the employee was covered. ¶50 We conclude that Goranson does not require us to set aside the Commission's award in the present case. In this case, as in Goranson, we are reviewing the Commission's decision for reasonableness. Just as we concluded that the Commission's determination in Goranson was reasonable, so too do we conclude that the Commission's decision reasonable. 21 in the present case is No. ¶51 Larsen's The Commission created frostbite by his difficulties in concluded arose out of employment, the opening in the door the the zone cold of present of case special weather, his 98-3577 and mobile that danger Larsen's home. The Commission could conclude that these are factors that are not purely personal to Larsen, but rather that they arose out of his employment. legislative Moreover, the determination Commission that was intoxication mindful reduces, not necessarily eliminate, an employee's recovery. of the but does Wis. Stat. § 102.58. ¶52 In affirming the Commission's decision in this case, the court recognizes that this is a close case. might have ruled the other way. The Commission In close, borderline cases like the present one, the Commission may very well rule in favor of the claimant, "principally because it was the intent and purpose of the act to bring border-line cases under it and to close up avenues of escape which would naturally be suggested to those seeking to evade liability under the act."32 ¶53 The Commission's reasonableness, determination even as as pushing, conclusion Heritage or even is within Mutual the range characterizes breaking, the of the envelope. Perhaps this court might have reached a different conclusion under the facts of the case if the legislature had authorized 32 Tesch v. Indus. Comm'n, 200 Wis. 616, 627, 229 N.W. 194 (1930). See also Wisconsin Elec. Power Co., 226 Wis. 2d at 796; CBS, Inc., 219 Wis. 2d at 581 (quoting City of Phillips, 56 Wis. 2d at 579-80). 22 No. this court Nevertheless, review, a to review under the reviewing Commission great court weight may not 98-3577 de novo. decisions deference second-guess standard a of reasonable interpretation of a statute by a state agency. ¶54 For the reasons set forth we conclude that the Commission's determination is reasonable and must be affirmed by this court. IV ¶55 The final issue in the present case is whether the Commission from his properly determined intoxication, that triggering benefits under Wis. Stat. § 102.58. Larsen's a 15% injury reduction resulted in his Section 102.58, entitled decreased compensation, provides: If injury is caused by the failure of the employe to use safety devices which are provided in accordance with any statute or lawful order of the department and are adequately maintained, and the use of which is reasonably enforced by the employer, or if injury results from the employe's failure to obey any reasonable rule adopted and reasonably enforced by the employer for the safety of the employe and of which the employe has notice, or if injury results from the intoxication of the employe by alcohol beverages, as defined in s. 125.02 (1), or use of a controlled substance, as defined in s. 961.01 (4), or a controlled substance analog, as defined in s. 961.01 (4m), the compensation and death benefit provided in this chapter shall be reduced 15% but the total reduction may not exceed $15,000 (emphasis added). ¶56 whether The questions of whether Larsen was intoxicated and his injury resulted from 23 intoxication, so that the No. 98-3577 compensation is reduced by 15% under Wis. Stat. § 102.58, have been treated Commission's in the case factual law as findings questions are of conclusive, fact.33 as we The have explained previously, in the absence of fraud, and an order or award may not be set aside unless the findings of fact are not supported by credible and substantial evidence. contains credible and substantial evidence If the record regarding both intoxication and causation, the Commission may draw reasonable inferences from this evidence. See Olson v. Indus. Comm'n, 273 Wis. 272, 77 N.W.2d 410 (1956). ¶57 The Commission's order stated: The commission infers from the applicant's testimony concerning how much he drank at the tavern on January 31, 1996, that he was intoxicated. It additionally infers that this intoxication was a substantial factor in causing the applicant's frostbite injuries, because it is probable that he remained asleep for such an extended period due in part to his intoxication. ¶58 The circuit court reversed the Commission's 15% reduction, holding that there was no evidence on the record that a person was more likely to remain asleep if intoxicated. The circuit court further noted that the record contains no evidence linking the length of time Larsen remained asleep to the bears the frostbite. ¶59 Under Wis. Stat. § 102.58, an employer burden of establishing that an employee was intoxicated at the 33 See Massachusetts Bonding & Ins. Co. v. Indus. Comm'n, 8 Wis. 2d 606, 609, 99 N.W.2d 809 (1959). 24 No. 98-3577 time of injury and of establishing a causal connection between the intoxication and the injury.34 ¶60 Larsen reversed the supports a intoxication argues that the circuit Commission's 15% finding intoxication caused of Larsen reduction to remain court because or a asleep correctly no evidence finding long that enough to suffer frostbite.35 ¶61 We disagree with Larsen, the circuit court, and the court of appeals and uphold the Commission's findings of fact that Larsen was intoxicated and that the injury resulted from intoxication. direct While evidence intoxication in caused we agree the Larsen with record to Larsen of remain that there intoxication asleep for an is or no that extended period, or that Larsen's extended exposure to the cold caused his injury, these inferences may reasonably be drawn from the record. ¶62 The renal consultation report of Dr. Matthew Hanna, on February 2, 1996, one day after Larsen's frostbite, stated the following "impressions" regarding patient Larsen: "1. Ethanol abuse; 2. Loss of consciousness secondary to the above. Severe frostbite injury." 3. Dr. Hanna's report is credible and substantial evidence to establish intoxication, a causal link 34 See Haller Beverage Corp. v. ILHR Dep't, 49 Wis. 2d 233, 237, 181 N.W.2d 418 (1970); Massachusetts Bonding & Ins. Co., 8 Wis. 2d at 608-09. 35 The Commission has not appealed reversal of this portion of its order. 25 the circuit court's No. 98-3577 between Larsen's intoxication and his loss of consciousness and the injury. ¶63 Larsen suggests that this report is not credible and substantial evidence to support the Commission's findings that intoxication caused the injury. Larsen testified during the Commission hearing that he did not know what caused the injury and denied that intoxication. Larsen's any doctor had attributed his injury to The Commission, however, could have discounted testimony regarding causation. Indeed, the record contains reports from a psychiatrist and a social worker stating that Larsen was in denial regarding the seriousness of his drinking. ¶64 findings Again, of the fact Commission on this might have record. made Other different factors than intoxication may have caused Larsen to lose consciousness. The record shows Larsen used diet pills and had exerted himself in the cold. alcoholic No evidence beverages on was sleep presented patterns about or the the effect length of of time exposure to cold causes frostbite. Nevertheless, this court need findings not set aside the Commission's of fact. The Commission could draw reasonable inferences from the credible and substantial intoxication evidence caused him in to the lose record that consciousness Larsen's and suffer frostbite as a result of exposure. ¶65 Larsen relies on Haller Beverage Corp. v. ILHR Department, 49 Wis. 2d 233, 181 N.W.2d 418 (1970), in which an employee with a blood alcohol level of 0.29 percent crashed his 26 No. car into a bridge abutment. 98-3577 The employer in Haller presented evidence that the employee was intoxicated, but the employer failed to present any evidence to establish between the intoxication and the crash. a causal link Instead, the employer relied on the absence of evidence of any alternative cause for the accident. This court upheld the Commission's determination that the employer had not met its burden of proof under Wis. Stat. § 102.58, stating: In meeting a burden of proof, absence of testimony is not the same as presence of testimony. It is true that the employer and insurance carrier were not required to negate all possible explanations of the car veering to hit the abutment. But they were required to establish a causal link between the condition of intoxication and the injury. This they did not do. Haller, 49 Wis. 2d at 236 (citation omitted). ¶66 Haller also drew on Massachusetts Bonding & Insurance Co. v. Industrial Commission, 8 Wis. 2d 606, 99 N.W.2d 809 (1959), in which this court upheld the Commission's determination that the employer had failed to show that intoxication had caused an employee to fall down a flight of whatsoever stairs. regarding The how record the contained accident no occurred, evidence so the employer's suggestion that the fall was due to intoxication was mere suspicion. ¶67 Haller and Massachusetts Bonding stand in contrast to Olson v. Industrial Commission, 273 Wis. 272, 77 N.W.2d 410 (1956), in which an intoxicated 27 employee's vehicle No. 98-3577 overturned when the vehicle struck a concrete ditch on the wrong side of the road. In that case, the employee presented evidence of a mechanical defect in the vehicle, while the employer presented physical evidence that the employee had been driving for some distance on the wrong side of the road. This court stated that the Commission could reasonably infer from this evidence that intoxication caused the employee to be driving on the wrong side of the road, which in turn caused the accident. taken together, demonstrate the These three cases, court's deference to the Commission's findings regarding whether intoxication caused an injury under Wis. Stat. § 102.58. ¶68 The Commission was entitled to draw the reasonable inference in the present case that intoxication caused Larsen to remain asleep for an extended period and that his injury was caused by his long exposure to the cold. ¶69 Accordingly we conclude that there is credible and substantial evidence in the record to support the Commission's determination that the injury resulted from intoxication and that the 15% award reduction required by Wis. Stat. § 102.58 applies. ¶70 Because we conclude that the Commission properly reduced Larsen's award under Wis. Stat. § 102.58, we reverse the portion of the circuit court's order and the decision of the court of appeals denying the 15% reduction. We affirm the portion of the decision of the circuit court and the court of appeals upholding the Commission's 28 determination No. that Larsen was § 102.03(1)(f). entitled The to coverage Commission's under decision is Wis. 98-3577 Stat. therefore affirmed in its entirety. By the Court. The decision of the court of appeals is affirmed in part and reversed in part. 29 No. 98-3577.npc ¶71 in N. PATRICK CROOKS, J. (concurring in part, dissenting The part). deference. majority The Labor defers and too much Industry to great Review weight Commission's determination that William E. Larsen suffered an injury covered by Wis. Stat. § 102.03(1) is neither reasonable nor in accord with the purpose of § 102.03(1).36 simultaneously concluded both The Commission could not have that there was a compensable injury here and that Larsen's intoxication caused his injuries, where the accident causing the injuries did not arise from Larsen's employment, but from a cause solely personal to him that is, his intoxication. The Commission's determination thus contravenes the statutory directive that there is coverage only "[w]here the accident . . . causing employe's employment." ¶72 injury arises out of the Wis. Stat. § 102.03(1)(e). Wisconsin Stat. § 102.03(1) imposes liability upon an employer for accident that a traveling caused the employee's injury injury arises from only the where the employment relationship. In order for liability to accrue, it is necessary both that the employee at the time of the accident be performing services growing out of and incidental to his employment and that the accident causing injury must arise out of his employment. The phrase "arising 36 As noted in the majority opinion (at ¶27), even under the great weight deference standard of review, if the Commission's interpretation is unreasonable that is, the interpretation "directly contravenes the words of the statute, is clearly contrary to legislative intent, or is otherwise . . . without rational basis" it cannot be upheld. Wisconsin Elec. Power Co. v. LIRC, 226 Wis. 2d 778, 787, 595 N.W.2d 23 (1999) (citations omitted). 1 No. 98-3577.npc out of" refers to the causal origin of the injury and the "course of employment" phrase refers to the time, place, and circumstances of the accident in relation to the employment. The "travelling employee" statute does not modify these two requirements, it merely provides the employee with a statutory presumption in favor of both of these requirements. . . . [E]ven in those cases where the travelling employee presumption applies, the "accident . . . must arise out of a hazard of such service. . . ." Goranson v. ILHR Dep't, 94 Wis. 2d 537, 549-50, 289 N.W.2d 270 (1980) (citations, footnotes omitted, emphasis in original).37 Typically, this court has addressed the "course of employment" element of liability rather than the causation or the "arising out of the employment" element. Id. at 549 n.3. However, this court did address the causation element, which is determinative here, in Goranson. ¶73 This case is strikingly similar to Goranson. Goranson was a bus driver for Whitie's Transportation, which provided a charter bus to a Green Bay Packers football game in Green Bay from Barron, Wisconsin. Id. at 542. On the night of the injury for which Goranson sought worker's compensation, he consumed a large amount of alcohol a couple of drinks upon arrival at the hotel where he and the bus passengers were staying, and four more with a late dinner. Id. A witness reported that at about 37 It is noteworthy that the Commission did not discuss the traveling employee presumption. Presumably, the Commission concluded that even if the presumption dropped out of consideration because evidence to the contrary had been presented (see Goranson v. ILHR Dep't, 94 Wis. 2d 537, 551, 289 N.W.2d 270 (1980)), the Commission's conclusions would have been the same. 2 No. 98-3577.npc 1:30 a.m., Goranson was in the lobby and had been drinking. at 543. Id. At about 2:30 a.m., another witness reported hearing "screaming and cussing" from Goranson's room and saw Goranson, "dazed or drunk, or something," climbing out of a window; then he jumped. ¶74 Id. at 544. Goranson claimed that he had gone to sleep and awoke to find someone in the room, with whom he scuffled. 43. Id. at 542- According to Goranson, he was pushed out of the window and was hanging on the ledge until he dropped to the roof of the hotel kitchen. Id. at 541, 543. When the police examined his room, they found that other than a tipped over chair and some blood on sheets and pillowcases, there was no sign of a struggle and nothing was missing from the room. Id. at 544. There was also no sign of forced entry and Goranson's room had been locked from the inside. Id. at 542, 556. Goranson suffered a broken hip and other injuries from jumping from his third floor room. Id. at 541. ¶75 The Department of Industry, Labor and Human Relations determined that Goranson's injuries were not compensable.38 38 Id. The Department of Industry, Labor and Human Relations is now known as the Department of Workforce Development. The legislature renamed the Department of Industry, Labor and Human Relations the Department of Industry, Labor and Job Development, effective July 1, 1996. However, the Department was given the option to use the name Department of Workforce Development which it did. The legislature recognized the name change in 1997. Wisconsin Blue Book 1999 2000 493 (Wisconsin Legislative Reference Bureau ed., 1999). The Labor and Industry Review Commission now reviews decisions of the Department of Workforce Development. Id. at 496. 3 No. 98-3577.npc at 540. The Department concluded that although Goranson was performing services growing employment, Goranson's employment. out and incidental to his did not arise of his Id. at 542. ¶76 arose injuries of This court agreed. out of Goranson's out In determining whether the injury employment, the court applied the "positional risk doctrine." The definition of the positional risk doctrine can be stated as follows: "[A]ccidents arise out of employment if the conditions or obligations of the employment create a zone of special danger out of which the accident causing the injury arose. Stated another way, an accident arises out of employment when by reason of employment the employee is present at a place where he is injured through the agency of a third person, an outside force, or the conditions of special danger." Id. at 555 (quoting Cutler-Hammer, Inc. v. Industrial Comm'n, 5 Wis. 2d 247, 254, 92 N.W.2d 824 (1958)). ¶77 This positional court risk has, doctrine where to appropriate, uphold a applied determination the that employer is liable for a traveling employee's injury. an "Such cases include, among others, accidents arising from horseplay, weather conditions, Industrial Goranson Comm'n, and 266 apparently assaults." Wis. tried to Nash-Kelvinator 81, 86, fit into 62 N.W.2d the Corp. 567 assault v. (1954). category. However, unlike the applicant in Nash-Kelvinator, Goranson was not subjected to mob violence by co-workers. also was not an assault as there was in Id. at 83. Weiss v. There City of Milwaukee, 208 Wis. 2d 95, 99-100, 559 N.W.2d 588 (1997) where 4 No. 98-3577.npc the employer released confidential information about an employee who was subsequently harassed by her ex-husband. ¶78 Rather, the court concluded that Goranson's injuries "arose out of a cause solely personal to the employee and did not arise out of the employment . . . ." at 556. Goranson, 94 Wis. 2d The court found that credible evidence supported the Department's determination as such.39 allowed someone" into his hotel room. Goranson "voluntarily Id. at 556. And, "for reasons known only to Mr. Goranson he crawled out of the window, stood on the ledge, and jumped." Id. In other words, Goranson's actions, and not his employment, created a zone of special danger or hazard out of which his injuries arose. "The situation in which Mr. Goranson found himself was not one which was created by the risk of staying at the hotel." ¶79 Id. at 557. Similarly, here, the situation in which Larsen found himself was not one created by the risk of staying at his mobile home. own, The situation Larsen found himself in was created by his voluntary actions, namely, his intoxication. Indeed, because of that fact, this case indicates, more strongly than in 39 At the time that Goranson was decided, this court applied a credible evidence standard of review to determinations of whether there was a deviation from employment or whether the injury arose from the employment. Goranson, 94 Wis. 2d at 553; Hansen v. Industrial Comm'n, 258 Wis. 623, 626, 46 N.W.2d 754 (1951). Now, such determinations are reviewed as questions of law statutory interpretation by way of great weight deference. See CBS, Inc. v. LIRC, 219 Wis. 2d 564, 584-85, 579 N.W.2d 668 (1998) (Crooks, J., concurring). Accordingly, here, whether Larsen's injuries arose from his employment is considered a question of law. 5 No. 98-3577.npc Goranson where the court did not rely upon any finding that Goranson was intoxicated, that the injuries did not arise from the employment relationship. ¶80 Here, the Commission failed to apply, reasonably, the positional risk doctrine when it ignored its own finding that Larsen's intoxication caused his injuries. For the positional risk doctrine to be applied correctly, "[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'n, 265 Wis. 380, 385, 61 N.W.2d 490 (1953). The Commission initially concluded that sub-zero temperatures created a special zone of danger out of which Larsen's injuries arose. Larsen's More importantly, the Commission also concluded that intoxication caused compensation correspondingly. Wis. Stat. § 102.58 his injuries, and reduced his See majority op. at ¶55; see also (benefits are reduced where there is causal connection between the intoxication and the injury).40 a It was not the weather that was the special zone of danger or hazard for Larsen. It was his intoxication. But for the fact that he passed out, and that he lost consciousness, while half inside, half outside of his mobile home, the weather would have been of no effect. The accident that caused Larsen's injuries passing out did not arise "out of a hazard of such service [of 40 Wisconsin Stat. § 102.58 provides in pertinent part: "[I]f injury results from the intoxication of the employe by alcohol beverages, . . . the compensation and death benefit provided in this chapter shall be reduced 15% but the total reduction may not exceed $15,000." 6 No. 98-3577.npc employment]." Wis. Stat. § 102.03(1)(f). Thus, the accident could not "be deemed to arise out of the employe's employment." Id. ¶81 Rather, here, as in Goranson, the cause of Larsen's injuries was solely personal to him. When Larsen arrived in Tigerton, he consumed five to six alcoholic drinks within less than two hours at the Split Rock Tavern. There connection between his employment and his drinking. entertaining potential clients. "It cannot be was no He was not said the intoxicants he ordered were in any way in the furtherance of his employer's business." Dibble v. ILHR Dep't, 40 Wis. 2d 341, 350, 161 N.W.2d 913 (1968) (intoxication relevant to issue of personal deviation). As in Goranson, Larsen "deliberately acted to place himself in a position where he sustained an injury which was not a relationship . . . ." risk incidental 94 Wis. 2d at 557. to his employment The cold was not, and would not have been, a risk for Larsen, but for his self-induced intoxication. ¶82 The Commission admits that Larsen was intoxicated and that that intoxication caused his injuries. But the Commission fails to make the required and necessary connection to find a compensable injury here that the accident causing the injury was related to Larsen's employment. Here, the accident, losing consciousness or passing out, was not caused by the weather. was not caused by an outside force or third person. It Here, as in Goranson, there was no special zone of danger that arose from the employment relationship, but instead a self-created zone of 7 No. 98-3577.npc danger, even though the place of the injury was connected to the requirements of his employment. Simply, there was nothing about his employment that put him in harm's way. ¶83 Although it is not necessary to find that the Commission also unreasonably concluded that Larsen had returned to the "course of employment" if he had deviated from his business trip (see majority op. at ¶¶41-42), there is certainly a basis for deviation. of a finding, given the extent of Larsen's Larsen's deviation imbibing at least 4 or 5 drinks Kessler reasonably such Whiskey be and considered diet as Coke without unnecessary for dining could living or Goranson, 94 Wis. 2d at 550 n.3. incidental thereto. not As this court indicated in Dibble v. ILHR Dep't, 40 Wis. 2d 341, 161 N.W.2d 913 (1968), "[w]hile a cocktail or two before dinner probably is an acceptable social custom incidental to an act reasonably necessary to living, the department could conclude that Dibble's indulgence was beyond reasonableness." Id. at 350. ¶84 alcoholic Indeed, drinks Larsen's in less consumption than two of at hours is least more considered as a break in the employment nexus. 4 or 5 reasonably See Bush v. Parmenter, Forsythe, Rude & Dethmers, 413 Mich. 444, 457, 320 N.W.2d 858 (1982). In Bush, the applicant employee had attended a seminar out of town, and, on his way back home, had become intoxicated. Id. at 448-49. A restaurant where he had stopped had attempted to have him take a cab home, but he refused. Id. at 448. The He left, and was murdered shortly thereafter. 8 Id. No. 98-3577.npc Michigan Supreme compensation employment benefits, and deviation. Court the vacated finding injury Id. at 460. the that was award the of "nexus dissolved" by worker's between the the employee's Similarly here, Larsen's drinking and subsequent intoxication was a deviation from the purpose of his business trip, so that it dissolved any connection if any there was between his employment and his injuries. ¶85 Nonetheless, the Commission unreasonably concluded that the accident causing Larsen his injuries arose from his employment. The Commission's conclusion is not only unreasonable, but also directly contravenes the requirement of Wis. Stat. § 102.03(1)(f) that there is coverage only where the accident arises out of a hazard of such service of employment. Accordingly, the Commission determination, even under a great weight deference standard of review, must be overturned. CBS, Inc. v. LIRC, 219 Wis. 2d 564, 573, 579 N.W.2d 668 (1998). Certainly the legislature did not intend to provide worker's compensation for those injuries caused by an employee's intoxication where there is no connection whatsoever between the employment relationship and the intoxication. ¶86 The conclusion that Larsen is not entitled to worker's compensation benefits because his injury did not arise from his employment, but arose from a self-created zone of danger due to his intoxication, does not ignore Wis. Stat. § 102.58, or, as the majority suggests, protections in § 102.03. undermine the travelling employee The legislature's intent to limit, but not preclude, compensation where the employee's injury results 9 No. 98-3577.npc from intoxication presumes that there already is a compensable injury. Where the injury does not arise from the employment, there is no compensable injury. Wis. Stat. § 102.03(1)(e), (f). Here, Larsen's intoxication is not the cause of an otherwise compensable injury, so § 102.58 does not even come into play. Nonetheless, I concur in the majority's conclusion that, at the very least, the Commission correctly reduced Larsen's award by 15% on account of his intoxication. ¶87 to that For the reasons stated herein, I respectfully dissent portion Commission's of decision the to majority's award opinion Larsen that worker's upholds the compensation benefits. ¶88 I am authorized to state that Justice JON P. WILCOX and Justice DIANE S. SYKES join in this opinion. 10 No. 98-3577.npc 1
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