Wisconsin Elec. Power Co. v. Labor and Industry Review Com'n

• Decision Date: 22 June 1999
• Docket Number: No. 97-2747-FT,97-2747-FT
• Citation: 226 Wis.2d 778,595 N.W.2d 23
• Parties: WISCONSIN ELECTRIC POWER COMPANY, Plaintiff-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Defendant-Respondent-Petitioner, Scott Overbye, Defendant.
• Court: Wisconsin Supreme Court

Page 23

595 N.W.2d 23

226 Wis.2d 778

WISCONSIN ELECTRIC POWER COMPANY, Plaintiff-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Defendant-Respondent-Petitioner, Scott Overbye, Defendant.

No. 97-2747-FT.

Supreme Court of Wisconsin.

Argued April 8, 1999.

Decided June 22, 1999.

For the defendant-respondent-petitioner the cause was argued by Stephen M. Sobota, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the plaintiff-appellant there was a brief and oral argument by Lynne English, Milwaukee.

¶1 N. PATRICK CROOKS, J

Petitioner, the Labor and Industry Review Commission (LIRC), seeks review of a decision of the court of appeals reversing LIRC's determination that Wisconsin Electric Power Company (WEPCO) must pay almost $750,000 in worker's compensation benefits for injuries suffered by one of its former employees, Scott Overbye (Overbye). ^{1 1} LIRC held that under the "traveling employee" statute, Wis. Stat. § 102.03(1)(f)(1995-96), ² injuries sustained by Overbye in a car accident following his attendance at a business-related seminar in Texas occurred within the course of his employment and thus were compensable under the Worker's Compensation Act (WCA). Because we conclude that LIRC's application of § 102.03(1)(f) to the facts of this case is reasonable and is supported by findings of fact based on credible and substantial evidence, we reverse the decision of the court of appeals.

I.

¶2 LIRC based its award of compensation on the following findings of fact, which have not been disputed. At the time of the relevant events, Overbye was employed as an engineer for WEPCO. WEPCO sent Overbye and another WEPCO employee, Donald Kerber, to a business-related seminar in the Dallas-Fort Worth area of Texas. ³ The seminar was scheduled to run from Monday, January 30, 1995, through Friday, February 3, 1995.

¶3 Overbye consulted WEPCO's in-house travel agent about his travel from Milwaukee to the seminar. The agent informed Overbye that WEPCO had a travel policy under which WEPCO would reimburse Overbye for one night's lodging, meals, and transportation expenses if Overbye opted for a return flight that departed on a weekend day instead of one that left on Friday. The travel policy limited the amount of reimbursement to the difference in cost between the weekday and weekend airfares, which in Overbye's case amounted to $672. Overbye arranged to fly to Texas on Sunday, January 29, and return to Milwaukee on Sunday, February 5. ⁴ Using a personal credit card, Overbye also bought a ticket for his wife, Linda Overbye, to join him in Texas on Friday, February 3, and return home with him on Sunday.

¶4 Overbye and Kerber arrived in Texas for the seminar on Sunday, January 29, as planned. At noon on Friday, when the seminar concluded, Overbye and Kerber walked back to their hotel and met Linda Overbye. The trio ate lunch at a nearby restaurant and then set off for Fort Worth in the rental car that Scott Overbye and Kerber had used all week. The Overbyes and Kerber planned to do some sightseeing in Fort Worth. Approximately 21 miles from the hotel, an oncoming car crossed the median and struck the Overbyes' car, killing Linda Overbye and causing serious injuries to Scott Overbye. ⁵

¶5 The instant action arose when Scott Overbye's guardian petitioned the Department of Workforce Development (DWD) ⁶ for various benefits and medical expenses under the WCA. The parties stipulated that if Overbye prevails, WEPCO, a self-insured entity for purposes of the WCA, will be liable for almost $750,000 in medical expenses.

¶6 Following a hearing held on February 26, 1996, an administrative law judge (ALJ) in DWD's Worker's Compensation Division ordered WEPCO to compensate Overbye, determining that Overbye's sightseeing was an act "reasonably necessary for living or incidental thereto" under Wis. Stat. § 102.03(1)(f). LIRC affirmed the ALJ's decision, adopting the ALJ's findings and order in a decision and order filed November 7, 1996. After summarizing the relevant statutory and case law, LIRC set forth the following analysis:

Here, of course, the record does not establish that the applicant had deviated by drinking an unreasonable amount of alcohol, or that he was leaving the Dallas-Fort Worth metropolitan area on a side trip for personal reasons. Rather, he was simply seeking an innocent diversion while in the Dallas-Fort Worth area on a business trip. Sightseeing while on a business trip in and of itself is not a deviation, but rather reasonable recreation incidental to living.

LIRC Decision and Order, Nov. 7, 1996 at 5 [hereinafter LIRC Decision]. LIRC rejected WEPCO's argument that Overbye converted the trip into a purely personal one when he decided to stay over on Friday night and have his wife join him, stating:

[T]he employer's position cannot convincingly counter the fact that the employer offered the choice of staying over an extra night in the first place, and benefited from that choice by saving several hundred dollars in air fare as [the travel agent] testified. True, the employer did not require the applicant to stay over and, true, the applicant did plan to spend the weekend in Dallas-Fort Worth with his wife. But it is also true that the stay-over served the clear business purpose of saving money in air fare. The applicant's choice to stay over was not "a purely personal deviation," nor can it be said that the purposes of the employer were "not in any way served" by the applicant's choice, as was the case in Hunter [Hunter v. DILHR, 64 Wis.2d 97, 103, 218 N.W.2d 314 (1974) ].

LIRC Decision at 5-6.

¶7 Milwaukee County Circuit Court Judge Jacqueline D. Schellinger affirmed LIRC's order on July 29, 1997. In a split decision, the court of appeals reversed. See Wisconsin Elec. Power Co. v. LIRC, No. 97-2747-FT, unpublished slip op. (Wis.Ct.App. Oct. 13, 1998). The majority concluded although the standard of review was great weight deference, LIRC's decision must be reversed as contrary to statutory and case law. According to the majority, LIRC improperly based its determination on the "sweeping premise" that "all innocent reasonable recreational activities during the course of a business trip are not a deviation." Id. at 7-8. In doing so, the majority reasoned, LIRC overlooked the language in Wis. Stat. § 102.03(1)(f) excepting "deviation[s] for a private or personal purpose" from coverage. Id. at 5-6, 10. The majority concluded that Overbye had manifested his intention to engage in such a deviation when he went on his sightseeing trip, and therefore, his injuries were not covered by the WCA. Judge Schudson dissented, reasoning that because LIRC's view of the facts was every bit as reasonable as the majority's view, did not clearly contradict the statute or legislative intent, and did not lack a rational basis, the great weight deference standard of review compelled the court to uphold LIRC's decision.

II.

¶8 Factual findings of LIRC are conclusive as long as they are supported by credible and substantial evidence and LIRC did not act fraudulently or in a manner which exceeds its powers. See § 102.23(1)(a); CBS, Inc. v. LIRC, 219 Wis.2d 564, 571, 579 N.W.2d 668 (1998). A court may overturn a decision made by LIRC if it was fraudulently obtained or made while LIRC was acting outside the scope of its powers. § 102.23(1)(e). A LIRC order or award may also be set aside if it is unsupported by LIRC's findings of fact, § 102.23(1)(e), or depends upon "any material and controverted finding of fact that is not supported by credible and substantial evidence." § 102.23(6). However, "the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact." § 102.23(6).

¶9 The application of Wis. Stat. § 102.03(1)(f) to the facts as found by LIRC presents a question of law which this court reviews under the great weight deference standard. CBS, 219 Wis.2d at 573-74, 579 N.W.2d 668. The great weight deference standard requires that we uphold LIRC's interpretation of the statute unless it is unreasonable. Id. at 574, 579 N.W.2d 668. See Ide v. LIRC, 224 Wis.2d 159, 167, 589 N.W.2d 363 (1999). "An unreasonable interpretation of a statute by an agency is one that 'directly contravenes the words of the statute, is clearly contrary to legislative intent, or is otherwise ... without rational basis.' " CBS, 219 Wis.2d at 574, 579 N.W.2d 668 (quoting Hagen v. LIRC, 210 Wis.2d 12, 20, 563 N.W.2d 454 (1997)).

III.

¶10 An employer may only be held liable under the WCA for injuries which occur while an employee is "performing service growing out of and incidental to his or her employment." Wis. Stat. § 102.03(1)(c). When, as in this case, an employee's job requires travel, the "traveling employee's" statute, § 102.03(1)(f), applies. Section 102.03(1)(f) provides:

Every employe whose employment requires the employe to travel shall be deemed to be performing service growing out of and incidental to the employe's 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 the employe's employment.

¶11 This provision was enacted "following some cases where slight circumstances were apparently sufficient to show a 'deviation from employment.' " Hansen v. Industrial Comm'n, 258 Wis. 623, 628, 46 N.W.2d 754 (1951). See § 4, ch. 537, Laws of 1945. Two of these early cases are Gibbs Steel Co. v. Industrial Comm'n, 243 Wis. 375, 378-79, 10 N.W.2d 130 (1943), in which the court denied compensation to a traveling employee injured by a fall in a bathtub, and Creamery Package Mfg. Co. v. Industrial Comm'n, 211 Wis. 326, 331-32, 248 N.W. 140 (1933), in which the court held that an...