Oscar Mayer Foods Corp. v. Labor & Industry Review Commission

429 N.W.2d 89, 145 Wis. 2d 864, 1988 Wisc. App. LEXIS 626
CourtCourt of Appeals of Wisconsin
DecidedJuly 21, 1988
Docket88-0377
StatusPublished
Cited by2 cases

This text of 429 N.W.2d 89 (Oscar Mayer Foods Corp. v. Labor & Industry Review Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oscar Mayer Foods Corp. v. Labor & Industry Review Commission, 429 N.W.2d 89, 145 Wis. 2d 864, 1988 Wisc. App. LEXIS 626 (Wis. Ct. App. 1988).

Opinions

EICH, J.

Oscar Mayer Foods Corporation appeals from a judgment affirming a decision of the Labor and Industry Review Commission. The commission ruled that Tonya Mahler, an Oscar Mayer employee, suffered an injury compensable under the Worker’s Compensation Act when she tripped and fell while attempting to climb over a barrier in the company parking lot on her way to work. The issue is whether the commission could reasonably determine that, at the time of her injury, Mahler was going to work on a "direct route” and "in the ordinary and usual way” within the meaning of sec. 102.03(l)(c)2, [867]*867Stats. Because we believe the commission could not reasonably so conclude, we reverse.

The facts are not in dispute. At the time of her fall, Mahler was forty-seven years old. She stood five feet five inches tall and weighed 245 pounds. On the day of the injury, she drove to work at the Oscar Mayer plant and parked in the lot. The lot has several parking lanes separated by barriers consisting of steel cables strung from a series of intermittently-spaced wooden posts. The cables are suspended thirty to thirty-two inches above the ground, and the lot is so laid out that Mahler could have followed an unobstructed route along the traffic lanes and parking rows as she traveled from her car to the plant entrance. Instead, she elected to cross the lot diagonally, stepping over the barriers as she reached them. She traversed the first barrier without incident, but, while attempting to step over the cable at the second barrier, she caught her foot and fell, sustaining the injuries for which this claim was brought.

A Department of Industry, Labor and Human Relations hearing examiner determined that Mahler was entitled to compensation because, at the time of her injury, she was "on a direct route to the employer’s work premises and ... was traveling in an ordinary and usual way at the time,” within the meaning of the statute. On appeal, the commission affirmed the award, changing only the last portion of the examiner’s determination to make it read that Mahler was traveling "in the ordinary and usual way at the time.” (Emphasis added.)

Oscar Mayer sought judicial review, and the court, concluding that the commission’s interpretation and application of sec. 102.03(l)(c)2, Stats., were reasonable, affirmed the award.

[868]*868We review the commission’s determination under the same rules applicable to judicial review in the circuit court. Gilbert v. Medical Examining Board, 119 Wis. 2d 168, 194, 349 N.W.2d 68, 79-80 (1984). However, the parties disagree as to the proper scope of that review.

The commission maintains that the determination that Mahler’s conduct met the statutory standard is a "true finding of fact” which must be sustained on appeal if supported by substantial evidence in the record, citing Consolidated Papers, Inc. v. ILHR Dept., 76 Wis. 2d 210,216,251 N.W.2d 69, 72 (1977), and Mrs. Drenk’s Foods v. Industrial Comm., 8 Wis. 2d 192, 196-97, 99 N.W.2d 172, 175 (1959). The "true finding of fact” in Consolidated Papers, however, was whether the employee’s death "was caused by an occupational disease arising out of his employment,” id. at 216, 251 N.W.2d at 72; and, to answer the question, the commission was required to resolve conflicting medical testimony. The issue was the same in Mrs. Drenk’s Foods, and in that case the "ultimate fact” — whether the employee "'sustained] injury arising out of [her] employment’” — and its resolution required the commission to choose between conflicting medical testimony as to the cause of the employee’s medical condition. Id. at 196, 99 N.W.2d at 175.

The commission’s determination in this case did not center around the medical cause of the employee’s illness, as in Consolidated Papers and Mrs. Drenk’s Foods. Rather, it was a determination that the "historical facts” — Mahler’s conduct on the day in question— met the statutory standard of "ordinary and usual” employee conduct. Normally such questions are ques[869]*869tions of law, which we review de novo, according deference to the agency’s decision in appropriate cases. Nottelson v. ILHR Department, 94 Wis. 2d 106, 116-17, 287 N.W.2d 763, 768 (1980). Mahler and the circuit court agree that this is the appropriate standard, and both rely on the following statement of the rule in Nigbor v. DILHR, 120 Wis. 2d 375, 383-84, 355 N.W.2d 532, 537 (1984):

[RJegardless of how a question is labeled, when a Commission determination calls for a value judgment, this court must decide in each type of case the extent to which it should substitute its evaluation for that of the agency. ... [W]hen the expertise of the agency is significant to the value judgment, the agency’s decision, although not controlling, should be given weight. We conclude that the Commission has developed significant expertise in determining when an employee is acting within the scope of his [or her] employment and that Commission decisions in such matters should be given weight and deference. We will thus defer to the Commission’s conclusions if they are found to be reasonable, even if this court would not have reached the same conclusions. (Citations omitted.)

We believe this is the correct standard, and we conclude that the commission’s determination that Mahler "was injured while on a direct route to the employer’s work premises and ... was traveling in the ordinary and usual way at the time” was unreasonable.

In Dardanell v. Dept. Industry, Labor & Hu. Reis., 37 Wis. 2d 249, 253-54, 155 N.W.2d 43, 45 (1967), the supreme court discussed sec. 102.03(l)(c)l, Stats. (1965) (now sec. 102.03(l)(c)2), as follows:

[870]*870It is apparent that the legislature carefully chose its words and that, when it chose to extend the liability of the employer, it did not intend by this statute to extend coverage for any conduct that was unusual or extraordinary in terms of going to or from the employer’s premises.

Oscar Mayer suggests that Mahler’s route must be considered unusual in light of her testimony that, in the nearly twenty years she had been parking in the lot, she had stepped over the strung cables "just occasionally” or, at most, "several times” (and Oscar Mayer points out that in those years she would have made more than 4,000 trips across the lot). We agree. It may be, as the department’s hearing examiner suggested, that Mahler’s line of travel was a "beeline” to the plant, but when that line involves climbing over a series of barricades nearly three feet high, we do not consider it to be a "direct route” within the meaning of the statute.

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Oscar Mayer Foods Corp. v. Labor & Industry Review Commission
429 N.W.2d 89 (Court of Appeals of Wisconsin, 1988)

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Bluebook (online)
429 N.W.2d 89, 145 Wis. 2d 864, 1988 Wisc. App. LEXIS 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oscar-mayer-foods-corp-v-labor-industry-review-commission-wisctapp-1988.