Sauerwein v. Department of Industry, Labor and Human Relations, 75-764

• Court: United States State Supreme Court of Wisconsin
• Citation: 82 Wis.2d 294,262 N.W.2d 126
• Docket Number: No. 75-764,75-764
• Parties: Kenneth R. SAUERWEIN and Marjorie Sauerwein, Appellants, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS and Wisconsin Telephone Company, Respondents.
• Decision Date: 07 February 1978

Page 126

262 N.W.2d 126 82 Wis.2d 294 Kenneth R. SAUERWEIN and Marjorie Sauerwein, Appellants,
v.
DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS and
Wisconsin Telephone Company, Respondents. No. 75-764. Supreme Court of Wisconsin. Argued Jan. 3, 1978.
Decided Feb. 7, 1978.

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[82 Wis.2d 296] C. M. Bye (argued), and Gaylord, Bye & Rodli, S. C., River Falls, on brief, for appellants.

Fred D. Huber, Jr., Milwaukee, argued and on brief, for respondent Wisconsin Telephone Co.

Gordon Samuelsen, Asst. Atty. Gen. (argued), for respondent Department of Industry, Labor and Human Relations; Bronson C. La Follette, Atty. Gen., on brief.

DAY, Justice.

This is an appeal from a circuit court judgment confirming a worker's compensation order and findings of the defendant, Department of Industry, Labor and Human Relations (hereafter D.I.L.H.R.). The order denied the worker's compensation claim of Kenneth R. Sauerwein (hereafter applicant), an employee of the Wisconsin Telephone Company (hereafter Wisconsin company).

The injury occurred at a motel swimming pool in Houston, Texas while the applicant was on an employee loan program to the Southwestern Bell Telephone Company. In denying claimant's application, D.I.L.H.R. found that the claimant's employment in Texas did not require him to travel, that claimant's accident did not arise out of his employment for the company and that at the time of his injury the applicant was not performing services incidental to his employment for the company. The applicant contends that at the time of the injury he was performing services incidental to his employment and that at the time of the injury he was a traveling employee.

The issues in this appeal are as follows:

1. What standard of review will this court apply to the D.I.L.H.R. findings?

2. Did the applicant's employment with the Wisconsin Company, while in Houston, "require him to travel" within the meaning of sec. 102.03(1)(f), Stats. (1975)?

[82 Wis.2d 297] 3. If the applicant was not on travel status while in Houston, was he pursuant to sec. 102.03(1)(c), Stats. (1973) performing a service growing out of or incidental to his employment at the time of his injury?

4. Was the applicant within the scope of his employment at the time of injury because, (a) he was engaged in an activity that served a dual purpose, one that benefitted both himself and his employer or; (b) because he was ministering to his personal comfort within the scope of his employment or; (c) because he was performing a special purpose or mission for the Wisconsin company?

The facts of this case were stipulated to by the parties. On February 2, 1974, the applicant arrived in Houston, Texas, pursuant to an employee loan program between the Wisconsin company and Southwestern Bell. The applicant's anticipated length of transfer was five to six months. He remained on the payroll of the Wisconsin company, but was paid at the Houston rate. The Wisconsin company was reimbursed by Southwestern Bell.

The applicant was given an expense allowance for food and housing by Southwestern Bell. After residing in a motel for approximately one month the applicant rented a furnished apartment in Houston. The applicant purchased an automobile while in Houston. The automobile was titled in his name and registered in Texas.

While in Houston the applicant did his regular telephone installation and maintenance work during regular working hours which varied somewhat because of overtime. Following regular working hours he was not on call and there were no restrictions

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on his activities during other than working hours.

The applicant was allowed one trip home, or one visitor from home per month, at company expense. The applicant returned home once and his wife visited Houston twice during his employment in Houston.

On May 13, 1974, the applicant worked for Southwestern Bell Telephone from 7:30 a. m. to 4:30 p. m. Shortly thereafter he arrived at the swimming pool of [82 Wis.2d 298] the Holiday Inn, 2391 S. Wayside in Houston. From his arrival until 8:00 p. m., the applicant swam, drank beer and socialized with his friends. At approximately 8:00 p. m., the applicant severed his spinal cord while falling or diving into the motel pool. The applicant is a quadraplegic as a result of his injury.

D.I.L.H.R. also made the following findings:

". . . that the applicant's work while he was stationed in Houston, Texas, did not require him to travel; that this was his usual and customary work; that this work was performed on a regular daily work schedule; that this work did not create the hazard of travel; that the applicant's work for the (Wisconsin company) at the time of the injury did not place him in a zone of danger on May 13, 1974; that on May 13, 1974, the applicant did not sustain an injury caused by an accident arising out of the applicant's employment by the (Wisconsin company); that at the time of the injury, the applicant was not performing services incidental to his employment by the (Wisconsin company)."

Based on these findings the D.I.L.H.R. hearing examiner ordered the worker's compensation application denied on July 18, 1975. D.I.L.H.R. affirmed the order of the hearing examiner September 18, 1975.

The applicant appeals from a March 26, 1976 judgment of the Dane County Circuit Court confirming the D.I.L.H.R. findings and order.

Standard Of Review Of D.I.L.H.R. Findings.

Findings of fact made by D.I.L.H.R. will not be overturned on review if they are supported by any credible evidence. R. T. Madden, Inc. v. I.L.H.R. Dept., 43 Wis.2d 528, 547-548, 169 N.W.2d 73 (1969).

In this case D.I.L.H.R. found that the applicant's work did not require him to travel and that the applicant's injury did not arise out of, nor was it incidental to his [82 Wis.2d 299] employment with the Wisconsin company. These findings use nearly the exact words of sec. 102.03(1)(c) & (f), Stats.1975. Those sections provide as follows:

"Sec. 102.03. Conditions Of Liability. (1) . . . (c) Where, at the time of the injury, the employe is performing service growing out of and incidental to his employment. Every employe going to and from his employment in the ordinary and usual way, while on the premises of his employer, or while in the immediate vicinity thereof if the injury results from an occurrence on the premises, shall be deemed to be performing service growing out of and incidental to his employment; so shall any employe going between an employer's designated parking lot and the employer's work premises while on a direct route and in the ordinary and usual way; . . ." (Emphasis supplied).

". . .ing

"(f). . . Every employe whose employment requires him to travel shall be deemed to be performing service growing out of and incidental to his 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 his employment." (Emphasis supplied).

In other cases where findings were made using the terms of the statute, this court has stated that,

" 'The facts in the instant case are undisputed. In such a situation if but one

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inference can reasonably be drawn from such undisputed facts a question of law is presented and the finding of the commission to the contrary is not binding on the reviewing court; but, if more than one inference can reasonably be drawn, then the finding of the commission is conclusive. Schmidlkofer v. Industrial Comm., (1953), 265 Wis. 535, 538, 61 N.W.2d 862.' Van Roy v. Industrial Comm. (1958) 5 Wis.2d 416, 425, 92 N.W.2d 818, 823.

" 'Notwithstanding that in a workmen's compensation case, the facts may be undisputed, nevertheless questions of fact for determination may arise if different inferences can reasonably be drawn from the evidentiary [82 Wis.2d 300] facts. As said in Gant v. Industrial Comm. (1953), 263 Wis. 64, 69, 70, 56 N.W.2d 525, 582:

" ' "However, when facts are not in dispute but permit the drawing of different inferences therefrom, the drawing of one of such permissible inferences by the commission is an act of fact finding, and the inference so derived constitutes a finding of an ultimate fact, and not a conclusion of law. Hipke v. Industrial Comm. (1952), 261 Wis. 226, 231, 52 N.W.2d 401; . . .." ' " Neese v. State Medical Society, 36 Wis.2d 497, 503, 153 N.W.2d 552, 555 (1967). ¹

Neese, supra, involved D.I.L.H.R. findings of fact that were made in...