Heritage Mut. Ins. Co. v. Larsen

• Decision Date: 04 April 2001
• Docket Number: No. 98-3577.,98-3577.
• Parties: HERITAGE MUTUAL INSURANCE COMPANY and Larsen Laboratories, Inc., Plaintiffs-Appellants-Petitioners v. William E. LARSEN and Labor and Industry Review Commission, Defendants-Respondents.
• Court: Wisconsin Supreme Court

242 Wis.2d 47

2001 WI 30

624 N.W.2d 129

HERITAGE MUTUAL INSURANCE COMPANY and Larsen Laboratories, Inc., Plaintiffs-Appellants-Petitioners v. William E. LARSEN and Labor and Industry Review Commission, Defendants-Respondents.

No. 98-3577.

Supreme Court of Wisconsin.

Oral argument January 31, 2001.

Decided April 4, 2001.

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.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This is a review of an unpublished decision of the court of appeals.¹ The court of appeals affirmed an order of the Circuit Court for Milwaukee County, Michael Malmstadt, Judge.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 Review Commission (the Commission) awarding worker's compensation benefits to William E. Larsen for the partial amputation of his fingers and thumb, which were injured by frostbite.

¶ 2. The circuit court affirmed the Commission's decision to award worker's compensation benefits but reversed the Commission's decision regarding the 15% reduction of compensation. The court of appeals affirmed the order of the circuit court. Heritage Mutual Insurance Company seeks review in this 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 temperatures, and suffered frostbite. The employer and its insurance company (hereafter referred to together as Heritage Mutual) argue that they should not 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) (1997-98)² of the worker's compensation law as a traveling employee of Larsen Laboratories, Inc., because he was 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. The present case must be viewed in the context of the worker's 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 their employers.³ "Worker's compensation laws are basically economic regulations by which the legislature, as a matter of public policy, has balanced competing societal interests."⁴

¶ 6. Under Wisconsin worker's compensation law, employers are liable for work-related injuries that befall their employees, even if an employee is intoxicated. 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 the legislative intention is clear and the legislative power is plenary."⁵ Therefore, under Wisconsin worker's compensation law, "[i]ntoxication does not defeat a workmen's compensation claim but only decreases the benefits."⁶

¶ 7. Furthermore, the legislature has authorized a state agency, the Labor and Industry Review Commission, to 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.

¶ 9. 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 employee who was performing acts reasonably necessary for living or incidental thereto at the time of injury. 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. William E. Larsen worked in various capacities for Larsen Laboratories, Inc., a metals testing and analysis business owned by Larsen and his wife. One of Larsen's 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.

¶ 13. Upon arriving in Tigerton at about 3:30 p.m., Larsen stopped to buy liquor, groceries, and feed corn for deer. He then proceeded to the local tavern. 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. He felt dizzy and suffered from a slight headache. 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 temperature had been 25 below zero when Larsen reached the home, and Larsen suffered severe 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). The Commission further determined that Larsen was injured 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 injury. According to the 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 Commission applied the "positional risk doctrine." The positional risk doctrine is a body of law that is used to determine whether an accident causing injury arose out of employment under Wis. Stat. § 102.03(1)(f). 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, wrote the Commission, the deviation ceased when Larsen returned to the home; at the time of injury he was entering his home, an act reasonably necessary for living. Thus the Commission concluded that Larsen was 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

[1]

¶ 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 determination presents a...