March 1, 2017 -- Traveling employees have such broad coverage under the Wisconsin Worker’s Compensation Act that drunkenness does not bar recovery.
Generally, an employee must, at the time of injury, be "performing services growing out of and incidental to employment" to qualify for worker’s compensation. Wis. Stat. section 102.03(1)(c). Under the general rule, the employee must be performing an activity at the direction of the employer or an activity that has some specific benefit to the employer. Traveling employees are generally considered to be performing services at all times while on a trip. Wis. Stat. section 102.03(1)(f). The trip is considered to start the moment the employee commences the journey and ends the moment the employee finishes the journey. While on the trip, the employee stops performing services only when attending to a matter that is solely personal and not an act reasonably necessary for living. A recent appeals court decision affirmed the broad coverage given to traveling employees.
Ninedorf v. Joyal and the Exclusive Remedy Provision
In Ninedorf v. Joyal, 2014 AP 2762 (Unpublished Ct. App., May 17, 2016), the Court of Appeals had to address whether the Exclusive Remedy Provision in Wis. Stat. Sec. 102.03(2) prevented the injured Justin Ninedorf from suing his co-worker, David Joyal, and his employer, General Beer-Northwest, for injuries sustained in an automobile accident while traveling back from a work delivery.
Aneet Kaur, Marquette 2013, is an associate attorney at Peterson, Johnson & Murray S.C. where she concentrates her practice on defending employers and insurance carriers in worker’s compensation cases, including bad faith claims, safety violations, and unreasonable refusal to rehire claims.
The injuries were allegedly caused by Joyal’s intoxicated use of the company vehicle. General Beer, a beverage distributor in Rice Lake, employed Ninedorf and Joyal. On a Friday, after Ninedorf completed his regular shift, Joyal telephoned him and asked him to return to work because a restaurant customer needed a resupply. The two men took a company vehicle to deliver the beer in Hayward. After delivering the beer, the two men intended to drive back to the company headquarters in Rice Lake. Before leaving, they had a drink or two at the restaurant. Joyal then drove the company vehicle from the restaurant to Stone Lake, a city between Hayward and Rice Lake. The two men stopped in Stone Lake and had drinks at three different bars. After leaving Stone Lake, Joyal lost control of the company vehicle and Ninedorf sustained severe paralyzing injuries when the car went off the road.
Joyal and General Beer defended Ninedorf’s personal injury lawsuit by alleging that the Exclusive Remedy Provision in section 102.03(2) precluded suit against them. The issue was whether at the time of the injury the two men were “performing services growing out of and incidental to their employment” with General Beer pursuant to Wis. Stat. section 102.03(1)(f), the traveling employee statute.
The Traveling Employee Statute and Deviations for Personal Purpose
The traveling employee statute holds that employees are performing services at all times while on a trip, unless deviating for a private or personal purpose. The statute mandates that “acts reasonably necessary for living” are not deviations. Ninedorf argued that he and Joyal deviated when stopping in Stone Lake at the three bars. The court agreed that the bar visits in Stone Lake were deviations, but held that the men had resumed performing services for the employer after leaving the third bar in Stone Lake and returning to a reasonably direct route between Hayward and Rice Lake. Ninedorf and Joyal had ceased their personal deviation to the bars in Stone Lake and were on their way back to their employer’s premises when the accident occurred.
The court also refused to hold that becoming intoxicated in Stone Lake qualified as a deviation, citing several previous worker’s compensation cases where that same argument was rejected, including, most recently, Heritage Mut. Ins. Co. v. Larsen, 2001 Wis. 30, 242 Wis. 2d 47, 624 N.W.2d 129.
Instead, the court applied the long-standing rule of Lager v. ILHR Dept., 50 Wis. 2d 651, 661, 185 N.W.2d 300 (1972):
“It is clear, as a matter of law, that, in the event a salesman commences travel in the course of his employment and subsequently deviates from that employment but later resumes his route which he would have to follow in the pursuance of his employer’s business, the deviation has ceased and he is performing services incidental to and growing out of his employment.”
Does this mean that an employer would have no recourse in a situation like this?
Not necessarily. At the time of the accident in October 2010, Wis. Stat. section 102.58 would have allowed the employer to reduce compensation by 15 percent (not to exceed $15,000), if the employer could show that the injury resulted from intoxication.
If the accident had occurred on or after March 2, 2016, the employer would have an even greater recourse - 2015 Wis. Act 180, signed by Gov. Scott Walker on Feb. 29, 2016, and published on March 1, 2016, expanded section 102.58 to allow for a total compensation bar where the injury is caused by the employee’s violation of “the employer’s policy concerning drug or alcohol use.” Notably, the statute does not bar payment of medical expenses.
Further, the employer will have the burden of showing a causal relationship between the injury and the violation. In the case of Ninedorf v. Joyal, had the men sustained their injuries on or after March 2, 2016, section 102.58 would likely have limited Joyal’s benefits to medical expenses.
However, the provision would not have prevented Ninedorf from collecting compensation because he was the passenger and thus his intoxication did not cause his injury.
This article was originally published on the State Bar of Wisconsin’s Labor & Employment Blog. Visit the State Bar Sections or the Labor & Employment Law Section web pages to learn more about the benefits of section membership.