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


WILLIAM E LARSEN, Applicant

LARSEN LABORATORIES INC, Employer

HERITAGE MUTUAL INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96021617


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on August 18, 1997. Respondents submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained an injury arising out of and in the course of his employment with the employer, and if so, nature and extent of disability, liability for medical expense, and a 30-day notice issue under Wis. Stat. 102.12.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is July 16, 1941, is president and half owner of the employer, a small company which performs spectrographic analysis and physical testing of metals. The company is located in Oak Creek, Wisconsin, and the applicant and his wife, who is the other half owner of the company, reside in Cudahy. The applicant performed management and operational duties for the business, but his primary responsibilities were sales and computer programming. The company's customers are far flung so the applicant occasionally traveled, not only to see current customers but to solicit new ones.

In 1991, the applicant and his wife purchased forty acres of land near Tigerton, Wisconsin, and placed a mobile home on the land in 1992. Initially, the applicant used the land and mobile home solely for recreational purposes, as he is an avid hunter. However, in the fall of 1993, the applicant began using the mobile home as a company sales office, in addition to its recreational use. The applicant would use the trailer as a base from which to make sales calls, and also a quiet place to perform paperwork related to the business. The applicant also used the trailer as an occasional residence, when he and his wife were not getting along. He and his wife were divorced in 1983 and remarried in 1984.

On Wednesday, January 31, 1996, at approximately 12:30 p.m., the applicant left the company office in Oak Creek to drive to the trailer in Tigerton. He told his wife he planned to stay overnight there and then make a sales call on a prior customer, Aarrow Electric, located nearby in Shawano. He also took some company paperwork with him, and planned to work on it in the trailer. It took him approximately three hours to drive to Tigerton. There he first bought some groceries, liquor, and feed corn to give to the deer, and then went to a tavern. He had four or five drinks of whiskey and diet coke, something he did after work four or five nights per week. He had also taken a couple of Dexatrim diet pills. He then drove directly to the trailer where he intended to fix a pizza and work on sales.

It was approximately 25 degrees below zero when the applicant reached the trailer. He was unable to open the trailer door, because the key he was using was a copy made from his wife's keys. He had lost his keys while bow hunting the previous December. He also found himself feeling dizzy and suffering from a slight headache. After unsuccessfully attempting to push and pry the door open, he broke a small, plastic window in the door and reached through it to turn the lock from the inside. The applicant does not recall what happened next, until he woke up at about 8:45 a.m. the following morning, lying on the floor next to the door. The door and storm door were open about one foot, and the applicant's fingers and toes were frostbitten.

The applicant's wife had been attempting to telephone him, and finally got him to answer the phone when he woke up. She knew he did not sound well when she talked to him, so she telephoned a neighbor, Wally Seefeldt, and asked him to go over and check on the applicant. Seefeldt and his wife found the applicant awake. They made coffee for him and talked to him in the kitchen of the trailer. At that time, the applicant told Seefeldt he had come up to Tigerton to go to Aarrow Electric. The Seefeldts took the applicant to the hospital, and ultimately all the applicant's fingers and most of each thumb were amputated due to the frostbite which caused gangrene.

The credible evidence leads to the inference that the applicant's purpose in going to Tigerton on January 31, 1996, was business related. The applicant had recently discussed his company's service prices with a representative of Aarrow Electric, as verified by the applicant's testimony and a copy of a letter from him to Aarrow Electric dated January 26, 1996. The applicant's company needed to obtain a technical certification before it could restart business with Aarrow Electric, but the applicant credibly testified that his company would not obtain such certification unless it had business from a customer which required it. Furthermore, the commission infers that it is unlikely that absent a business purpose, the applicant would have driven the significant distance to Tigerton at that time of year and in such severe weather. The applicant credibly testified that he had not been fighting with his wife and that he never hunted at that time of year. Had he been concerned about the condition of his trailer, Mr. Seefeldt was a phone call away, and testified that he had a key to the trailer. In fact, the applicant telephoned Mr. Seefeldt the morning of January 31, 1996, and asked him to plow out the driveway to the trailer, in anticipation of his arrival.

Accordingly, on January 31, 1996, the applicant was a traveling employe pursuant to Wis. Stat. 102.03(1)(f). That statute provides that every traveling employe 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 a personal purpose. When injured, the applicant was simply attempting to enter his domicile for the night, an act reasonably necessary for living. Utilizing the positional risk analysis, the zone of special danger to which the applicant was exposed was the extremely cold weather in Tigerton that night, and it was by reason of an employment activity (sheltering himself for the night) that the applicant was exposed to this special danger.

The fact that the applicant had a number of drinks prior to returning to the trailer does not defeat his claim under Ch. 102. Regardless of any personal opinions one might have about the applicant's drinking habits, the fact is that he routinely drank as much as he did the evening of January 31, 1996, and when the accident and injury occurred the applicant was in the process of entering the trailer. 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. As was stated in Lager v. ILHR Dept., 50 Wis. 2d 651, 185 N.W. 2d 300 (1971):

"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."

Id. at 661.

While the applicant's drinking may or may not have contributed to his syncopal episode, even assuming that it did, intoxication alone does not defeat a worker's compensation claim but only decreases the benefits. Phillips v. ILHR Dept., 56 Wis. 2d 569, 579, 202 N.W.2d 249 (1972); Dibble v. ILHR Dept., 40 Wis. 2d 341, 350, 161 N.W.2d 913 (1968). The determinative fact in this traveling employe case is the fact that the applicant was performing acts reasonably necessary to living when his injury occurred.

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. Therefore, pursuant to Wis. Stat. 102.58, all temporary disability and permanent disability awarded to the applicant will be reduced by 15 percent.

Although the respondents did not submit arguments to the commission concerning the 30-day notice issue under Wis. Stat. 102.12, this issue was raised in the answer to the application. The commission finds that the circumstances of this injury were unusual enough that it is credible and reasonable that the applicant did not immediately understand that his injury was related to his employment. Regardless, there has been no showing that the employer was misled by the applicant's failure to give notice within 30 days of the injury.

The applicant's conceded average weekly wage is $576.92, which translates into a weekly temporary total disability rate of $384.62. The 15 percent reduction brings the temporary total disability rate to $326.93 per week. The medical opinions demonstrate temporary total disability from February 1, 1996 to the date the hearing was held on May 21, 1997, a period of exactly 68 weeks. Temporary total disability up to the date of hearing therefore amounts to $22,231.24, less $3,461.58 previously paid, for a net amount due of $18,769.66. A 20 percent attorney's fee will be subtracted from this award.

The applicant has also incurred reasonably required medical expenses as enumerated in Applicant's Exhibit E, requiring reimbursement of $44,809.33 to the nonindustrial insurance carrier, Family Health Plan, and $612.00 to Curative Rehabilitation Services.

Dr. Watchmaker's opinion leads to the credible inference that as of the hearing date, it was too early to assess permanent disability, and that the order should be left interlocutory with respect to additional disability and medical care.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The administrative law judge's Findings and Order are reversed. Within 30 days from this date, the employer and its insurance carrier shall pay to the applicant compensation for temporary total disability in the amount of Fifteen thousand, fifteen dollars and seventy-three cents ($15,015.73); to applicant's attorney, Robert Ward, fees in the amount of Three thousand, seven hundred fifty-three dollars and ninety-three cents ($3,753.93); to Family Health Plan the sum of Forty-four thousand, eight hundred and nine dollars and thirty-three cents ($44,809.33); and to Curative Rehabilitation Services the sum of Six hundred, twelve dollars ($612.00).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed: March 31, 1998
larsewi.wsd : 185 : 1 ND 3.25   3.33

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The only issue of witness credibility entering into the commission's decision was the factual issue of what reason(s) the applicant had for traveling to his trailer in Tigerton on January 31, 1996. In consultation with the commission, the administrative law judge indicated that he was not entirely certain why the applicant took the trip, although he believed that it was probably taken both to check on the trailer and to call on Aarrow Electric.

The above findings detail the commission's reasons for concluding that the trip was a business trip. It should be noted that the administrative law judge found it significant that a nurse at the Shawano Medical Center on February 1, 1996, wrote in a clinic note: "Wife called. Pt. up in Shawano attending trailer." However, the applicant's wife denied that she told the nurse this, credibly indicating that she knew all along that the purpose of the applicant's trip was to visit Aarrow Electric, and that the nurse misunderstood what she told her.

cc: ATTORNEY ROBERT T WARD
SCHIRO & WARD

ATTORNEY SHAWN M EISCHORST
BORGELT POWELL PETERSON & FRAUEN SC


Appealed to Circuit Court.  Affirmed in part (compensation allowed) and reversed in part (15% reduction reversed).  Circuit Court decision affirmed  by Court of Appeals March 14, 2000, in a per curiam decision. Petition for Supreme Court review granted September 12, 2000. LIRC decision affirmed in all respects, April 4, 2001, sub nom. Heritage Mutual Ins. Co. et al. v. William E. Larsen at al., 2001 WI 30, __ Wis.2d __, __ N.W. 2d __ .

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