Mark Ringsmuth

Aplin & Ringsmuth,LLC5944 Seminole Centre Court,

Suite 200

Madison, WI 53711

Mark.Ringsmuth@aplinringsmuth.com

(608)819-8408

Course of Employment

Traveling Employees General Rules

• Traveling Employee are presumed to be in course of employment at all times while traveling

• Deviations must be more than “minor”

• “Coming and Going” Rule – Commuting to and from work is not part of employment

• Always FACT SPECIFIC scenarios – Investigate, investigate, investigate….

Traveling Salesman Case• Facts: The Applicant was a liquor salesman who fell and injured his left knee

and right shoulder in the parking lot of a bar and gentlemen’s club in the early morning hours. The Applicant was required to drive to each of his customers to take orders and the bar and gentlemen’s club was one of the Applicant’s customers. He had left for a sales trip for his north eastern territory five days prior which was set to end the night before the accident. The Applicant was going to spend the weekend fishing at his brother’s cabin and then begin his next sales trip to the north central territory the following Monday.

• He claims that while he was at the bar and gentlemen’s club, he briefly discussed orders for the club’s north central territory, although the Applicant admits that the trip to the club was a combination of business and pleasure. He was admitted into the club for free and provided unlimited alcohol while he watched the exotic dancers. At midnight, the Applicant left the club with an exotic dancer to head to a cabin that the Applicant was going to rent for the night. The parking lot of the club was unlighted, unpaved, rutted, and still partially frozen, but the Applicant could not recall leaving the club or how or why he fell in the parking lot; he only remembered “coming to” on the ground in the parking lot with pain in his right shoulder and left knee. He did not seek medical treatment and instead continued to party until 1:30 a.m., at which time he headed back to his brother’s cabin.

• Is the Applicant in the scope of his employment at the time of his injury?

• If the Applicant was injured while engaged in a criminal activity at the time of his injury would this be a sufficient deviation to remove him from the scope of his employment?

• Assuming that the Applicant was intoxicated at the time of his injury, is his intoxication sufficient to take him outside the scope of his employment?

• Facts: The Applicant was injured in a motor vehicle accident, which occurred as he was driving from his home to his job site. He was employed as a commercial painter, paid an hourly wage, and his paid time began upon his arrival to the assigned job site.

• The Applicant began working at the job site for a few months and his job was considered ongoing. Although he did not work exclusively at the job site, the vast majority of the work he performed for three months straight was at the job site. He had also been informed by his employer that he was to report to the job site during the entire week of the motor vehicle accident giving rise to this claim. On morning, while the Applicant was driving from his residence to the job site in his personal vehicle which he owned, insured, and maintained, he was involved in a motor vehicle accident. The Employer did not provide the Applicant with transportation from his home to the job site, nor would the Employer have offered such transportation had he requested it.

Traveling Construction Employee(Coming and Going)

•On occasion, the Applicant was asked to travel to the Employer’s headquarters in order to pick up supplies or a company truck for a particular job, however; this was not his typical routine. The Applicant estimated that he only traveled to the Employer’s headquarters about once a month, if that. On the atypical day he would go directly to the job site. Such was the case on the morning of the accident. On that morning, the Applicant was not transporting materials or tools to the job site.

•The Applicant was not compensated for his commute to and from work to the site and was a union employee and so was subject to a Collective Bargaining Agreement which provided for mileage reimbursement to employees required to travel outside of the area covered by the agreement and beyond a thirty-five (35) mile radius of the Employer’s headquarters or their home. The Applicant was not entitled to mileage reimbursement for his travel between his home and the job site. Furthermore, he was not paid for the time that it took to drive from his residence to the job site.

• Was the Applicant in the scope of his employment at the time the motor vehicle accident?

• Would the Applicant have been in the scope of his employment if he was going to a different job temporary site?

• Would the Applicant have been in the scope of his employment if the job site was located outside of the thirty-five (35) mile radius from his home, such that the Applicant would have been paid mileage reimbursement under the CBA?

Horseplay Factors

1.Extent and seriousness of the deviation

2.Completeness of deviation (full or partial abandonment of job duties

3.The extent to which the practice of horseplay had become an accepted part of the employment

4.The extent to which the nature of employment may be expected to include some amount of horseplay

Horseplay• The Applicant worked as a general laborer for the Employer and normally

carpooled with several other employees. On the day of the injury, it was the Applicant’s turn to drive and he drove his car to the job site. While at work, the Applicant was required to clean a dump truck that had been used to transport mud which caused his work uniform to become soiled so he would shower at the job site and change clothes before heading home.

• Since it was going to take the Applicant some time shower and change, his co-workers asked for his car keys so they could wait in the car for him to finish showering. After showering, the Applicant exited the employer’s building and instead of walking along the most direct route to the parking lot, decided to take a short cut across the grass in front of the employer’s building to the parking lot.

• His co-workers saw him exit the building and decided to pull around to pick-up him up. As the car approached, the Applicant began to jump back and forth in front of the car—in essence playing chicken with the driver of the car. Ultimately, the Applicant zigged when he should have zagged, and was struck by the car, causing injuries. The accident occurred in the parking lot that was owned by the employer.

• Was the Applicant in the scope of his employment at the time of the accident?

• Does the Applicant’s actions constitute horseplay?

• Would there be a different result if the accident occurred off of the premises of the employer?

• Does the Applicant’s failure to use the most direct route to return to the parking lot take his actions out of the scope of his employment?

Parking Lot/Commuter Case• Facts: The Applicant drove to work and parked on the street in front of her

building even though the Employer owned a parking lot down the block which employees were able to park in for free. The Applicant stepped over the curb onto the grass and tripped in a divot in the grass while trying to step onto the sidewalk in front of the Employer’s property. The Applicant fell and hit her elbows on the public sidewalk, while her face hit the grass on the Employer’s premises.

• The Applicant filed a claim for the injuries she sustained to her elbows only and claimed that the street was considered an employer designated parking lot because all of the employees parked there and the Employer was aware of this fact. She also claimed that the injuries were compensable because she was on the premises of the Employer at the time of the fall since her head

crossed over onto the Employer’s premises.

• Is this compensable?

Personal Comfort Doctrine

• On Employer’s Premises

• Coffee break, lunch break, smoking, going to bathroom, getting drink of water, breath of fresh air held not to have deviated from course of employment

• Unless deviation is so great that an intent to abandon the job temporarily may be inferred

Personal Comfort Doctrine

• Facts: The Applicant was a firefighter who was passing by the secretary’s station during work hours and grabbed some peanut M&Ms that the secretary had brought from home and placed in a bowl on her desk. Unbeknownst to the Applicant, he was allergic to peanuts and went into anaphylactic shock. He was taken to the hospital and had a seizure while intubated which caused him to bite down hard on the tube in his mouth, breaking a tooth.

• Is this compensable?

Positional Risk Doctrine

• Liability exists when obligation or circumstances of employment place employee in a time and place where the employee is injured by force not solely personal to him or her

• Example – Employer’s release of employees home address and phone number to abusive ex-spouse created positional risk when employee injured in an assault by abusive ex-spouse

Positional Risk Doctrine• Facts: The applicant was sitting on a picnic table, with both legs

under the picnic tabletop. The applicant was obese and had a pre-existing left knee condition. There is no dispute that the applicant was performing services growing out of and incidental to employment at the time of her alleged injury. The picnic table was a one piece table, which did not have a moveable bench.

• The alleged injury occurred when the applicant swung her right leg out from between the picnic tabletop and the attached bench and attempted to standup from her seated position. The applicant testified that she had to swing out her right leg because of the picnic table structure. While arising from her seated position, the applicant claims she twisted her left knee.

• Would the conclusion reached in the above set of facts be different if an applicant experienced symptoms as they stood up from a seated position at a picnic table?

Idiopathic Falls/Condition• Fall due to reasons personal to the claimant

• Unexplained loss of consciousness

• “Trick Knee”

• Heart attack or stroke

• Cannot arise from a hazard of employment

• Look for potential hazards

• Wet floor

• Transitions in flooring tile to carpet

• Stairs? Steps?

• Tough cases to convince ALJ that there was not a hazard of employment involved with the fall

Idiopathic Fall• The applicant was a 20-year old security officer for MATC. She

was standing, talking with another officer on MATC property. She was wearing work boots and the applicant testified the floor surface played no role in her injury.

• The applicants two feet were parallel, above a foot apart without either foot being forward of the other when she was talking to this co-worker. The applicant began to turn to the left by rotating her upper body at waist level while at the same time lifting her right leg and rotating it to the left. During the initiation of the waist and right leg rotation, her left lower extremity remains stationery, planted in place. As proceed through the rotation, her left leg began a turning/rotation movement to the left when she felt a pop in her left knee. The applicant stumbled and was assisted by her co-worker.

• The applicant did complain of left knee symptoms in 2000, at a physical examination. In addition, in 2004 she indicated her knees were sore during a physical for athletics in high school. The applicant did not receive any treatment for her left knee.

• The applicant was diagnosed with osteochondritis dissecans (OCD). OCD is a condition in which a piece of bone or cartilage inside a joint lacks blood supply and dies. The applicant was subsequently diagnosed with a bone chip in her knee. She required two surgeries to repair the displaced bone chip.

Questions?