McRae v. Porta Painting, Inc.

• Decision Date: 20 May 2009
• Docket Number: No. 2008AP1946.,2008AP1946.
• Parties: Michael McRAE, Plaintiff-Appellant,<SMALL><SUP>&#x2020;</SUP></SMALL> v. PORTA PAINTING, INC., Secura Supreme and Labor and Industry Review Commission, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

769 N.W.2d 74

2009 WI App 89

Michael McRAE, Plaintiff-Appellant,^† v. PORTA PAINTING, INC., Secura Supreme and Labor and Industry Review Commission, Defendants-Respondents.

No. 2008AP1946.

Court of Appeals of Wisconsin.

Submitted on Briefs: March 19, 2009.

Opinion Filed: May 20, 2009.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert T. Ward of Ward Law Firm, Waukesha.

On behalf of the defendant-respondent, the cause was submitted on the brief of David A. Hart, assistant attorney general, and J.B. Van Hollen, attorney general.

On behalf of the defendant-respondent, the cause was submitted on the brief of Mark A. Ringsmuth and Gesina M.G. Mentink of Alpin & Ringsmuth, LLC, Deerfield.

A nonparty brief was filed by Daniel R. McCormick of McCormick Law Office of Milwaukee, for the Wisconsin Association for Justice.

Before BROWN, C.J., SNYDER and NEUBAUER, JJ.

¶ 1 NEUBAUER, J

Michael McRae appeals from a circuit court order affirming a decision by the Labor and Industry Review Commission which denied worker's compensation coverage for injuries McRae sustained in an automobile accident. McRae challenges the Commission's determination that he was not performing services growing out of and incidental to his employment at the time of the accident, which occurred while he was traveling from his home to a job site located away from the premises of his employer, Porta Painting, Inc. Because we conclude that the Commission's application of WIS. STAT. § 102.03(1) (2007-08)¹ to the circumstances presented in this case is reasonable, we affirm.

BACKGROUND

¶ 2 McRae was a union painter employed by Porta Painting, a company with headquarters located in Waukesha, Wisconsin, at the time of the accident. McRae normally drove from his personal residence in Twin Lakes, Wisconsin, directly to a particular job location he was assigned to for that day; however, on occasion, McRae would stop by the Waukesha headquarters to pick up supplies on his way to a job site. McRae drove his personal car and did not receive any reimbursement for travel unless the job site was outside a five-county area. McRae's paid time began upon his arrival to an assigned job site.

¶ 3 On January 7, 2005, at 5:40 a.m., McRae was driving his personal vehicle from his home to a job site at Aldrich Chemical Company in Milwaukee when he was involved in an accident with another vehicle and sustained serious injuries. As a result of the accident, McRae was off work for a substantial period of time and sustained permanent disability due to injuries to his left hip and ankle, dental injuries, and a possible permanent disability due to a head injury. McRae brought a claim for worker's compensation benefits under WIS. STAT. ch. 102 alleging that, at the time of injury, he was performing services growing out of and incidental to his employment under WIS. STAT. § 102.03(1), and he was a traveling employee as defined by § 102.03(1)(f).

¶ 4 A hearing was held before an administrative law judge (ALJ) on July 13, 2006. The ALJ determined that McRae was injured while performing services growing out of or incidental to his employment and was entitled to benefits. The Commission later reversed the ALJ's determination, explaining:

In the case at hand, the applicant was driving his own vehicle when the accident occurred. He received no reimbursement for the commute that was within the five-county area established in his union contract. There was no business-related purpose to the applicant's commute, he was simply going to work.... The applicant was not performing any special errand when the accident occurred on January 7, 2005.

Accordingly, under the facts and circumstances of this case, it must be found that when the applicant was injured he was not performing service growing out of and incidental to his employment with the employer.

McRae requested judicial review; the circuit court affirmed the Commission's decision. McRae appeals.

DISCUSSION

Standard of Review

¶ 5 In an appeal following an administrative agency decision, we review the decision of the agency, not that of the circuit court. American Mfrs. Mut. Ins. Co. v. Hernandez, 2002 WI App 76, ¶ 11, 252 Wis.2d 155, 642 N.W.2d 584. We do not weigh the evidence or pass upon the credibility of the witnesses, and we uphold the Commission's findings of fact on appeal if they are supported by credible and substantial evidence in the record. Id.; WIS. STAT. § 102.23(6). When we review an administrative agency's interpretation of a statute, there are three possible levels of deference: great weight, due weight or de novo. American Mfrs., 252 Wis.2d 155, ¶ 11, 642 N.W.2d 584.

¶ 6 While the parties do not challenge the Commission's findings of fact, the parties disagree as to which level of deference should be afforded the Commission's interpretation of WIS. STAT. § 102.03. McRae contends that our review should be de novo because the Commission's decision in this case conflicts with established law, namely the supreme court's decision in Bitker Cloak & Suit Co. v. Miller, 241 Wis. 653, 6 N.W.2d 664 (1942). The respondents argue that the Commission is entitled to "great weight" deference. The supreme court has recently summarized the three levels of deference as follows:

An agency's interpretation of a statute is entitled to great weight deference when: (1) the agency was charged by the legislature with the duty of 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.

We grant an intermediate level of deference, due weight, "where an agency has some experience in the area, but has not developed any particular expertise in interpreting and applying the statute at hand" that would put the agency in a better position to interpret the statute than a reviewing court.

. . . .

We apply de novo review when "there is no evidence that the agency has any special expertise or experience interpreting the statute[,] ... the issue before the agency is clearly one of first impression, or ... the agency's position on an issue has been so inconsistent so as to provide no real guidance."

Stoughton Trailers, Inc. v. LIRC, 2007 WI 105, ¶¶ 27-29, 303 Wis.2d 514, 735 N.W.2d 477 (citations omitted).

¶ 7 Based on the Commission's duty to administer the worker's compensation statutes, its longstanding interpretation of those statutes, its expertise, and the benefit of consistent decisions, the requirements for "great weight" deference are satisfied. See Begel v. LIRC, 2001 WI App 134, ¶¶ 5, 8, 246 Wis.2d 345, 631 N.W.2d 220 (reviewing whether an employee's injury fell within the meaning of WIS. STAT. § 102.03(1)); CBS, Inc. v. LIRC, 219 Wis.2d 564, 573, 579 N.W.2d 668 (1998). Moreover, as discussed later in this opinion, we reject McRae's sole argument against "great weight" deference— that the Commission's decision "is in direct conflict" with Bitker.

Under WIS. STAT. § 102.03(1)(c), Liability Exists Against the Employer Only Where, at the Time of Injury, The Employee is Performing Service Growing Out Of and Incidental To His or Her Employment.

¶ 8 We examine McRae's worker's compensation claim under WIS. STAT. § 102.03 which sets forth the "conditions of liability" under the Worker's Compensation Act. It provides:

(1) Liability under this chapter shall exist against an employer only where the following conditions concur:

(a) Where the employee sustains an injury.

(b) Where, at the time of injury, both the employer and employee are subject to the provisions of this chapter.

(c) 1. Where, at the time of injury, the employee is performing service growing out of and incidental to his or her employment.

Subsec. 102.03(1). It is undisputed that the first two requirements of liability, § 102.03(1)(a) and (b), are satisfied. Specifically at issue is whether the circumstances of McRae's injury sustained while en route to his job site satisfy § 102.03(1)(c)1.

¶ 9 In applying WIS. STAT. § 102.03, it is well established that "the typical employee going to or from work is not covered until he or she reaches the employer's premises. An employee going to work is ordinarily in the prosecution of his or her own business, not performing services incidental to employment." Doering v. LIRC, 187 Wis.2d 472, 479, 523 N.W.2d 142 (Ct.App.1994) (citing Brown v. Industrial Comm'n, 236 Wis. 569, 571, 295 N.W. 695 (1941)).² Exceptions to this "coming and going" rule include circumstances where the employer provides the transportation as part of the employment or pays for the expenses related to the employee's travel and that travel constitutes a "substantial part of the employment." Doering, 187 Wis.2d at 479, 488, 523 N.W.2d 142.

McRae Was Not Performing Services Growing Out Of and Incidental to His Employment When He Was Traveling to a Job Site.

¶ 10 McRae contends that he was performing services growing out of and incidental to his employment while traveling to a job site away from his employer's headquarters pursuant to WIS. STAT. § 102.03(1)(c)1. In support, McRae relies on the supreme court's statement in Bitker:

It is the rule in this state that an employee whose duty it is to travel on behalf of an employer and to do work away from the premises of the employer, and who is not required to report to the premises before starting out to do this outside work, is performing services as soon as he [or she] leaves his [or her] home and starts for the first place at which he [or she] is to perform such work.

Bitker, 241 Wis. at 656, 6 N.W.2d 664. In Bitker, an employee whose duties as a salesperson at a clothing store "required her occasionally to call upon customers and make collections" was injured while on her way to call on a customer before going in to work. Id. at 655, 6 N.W.2d 664....