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COURT OF APPEALS DECISION DATED AND RELEASED June 13, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3430-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
WINTZ COMPANIES and
EMPLOYEES INSURANCE OF
WAUSAU, a mutual
company,
Plaintiffs-Appellants,
v.
LABOR AND INDUSTRY
REVIEW COMMISSION and
LAVERNE J. HOWELL,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Eau Claire County:
THOMAS H. BARLAND, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Wintz Companies and its insurer appeal a
judgment affirming a LIRC decision that orders Wintz to pay worker's
compensation to Laverne Howell, a truck driver who was injured while en route
to pick up his truck.[1] Wintz argues that LIRC misapplied the law
because it focused on Howell's belief that he should be paid for the travel
rather than on the contract between Wintz and Howell. We reject this argument and affirm the judgment.
Wintz employed Howell as
a truck driver at the time of the accident.
After an unrelated injury, Howell informed Wintz that he was available
to return to work. Howell was told to
make travel arrangements to Kansas City where a rig was waiting for him. He was initially told to travel by Greyhound
Bus, but was unable to make satisfactory arrangements because of a strike. He was then told to look into airfare. When he called back and reported the price
of an airline ticket, he was told by a dispatcher to hold while she conferred
with supervisors. The dispatcher then
told Howell to get to Kansas City any way he could. He chose to ride with a relative and, en route to Kansas City,
was involved in a traffic accident in which he sustained serious injuries.
Ordinarily, travel to
and from work is not considered within the scope of employment for worker's
compensation purposes. Brown v.
Industrial Comm'n, 263 Wis. 569, 571, 295 N.W. 695, 695 (1941). An employee's injuries suffered while going
to and from work is compensable where the employer provides transportation as
part of the employment or pays for the expenses related to the employee's
travel. Doering v. LIRC,
187 Wis.2d 472, 479, 523 N.W.2d 142, 145 (Ct. App. 1994). The employer is liable if it agreed to
provide transportation and exercised certain control over the means of
transportation such as the vehicle to be used or the destination
travelled. Id.
We must uphold LIRC's
findings of fact if there is substantial evidence to support the findings. Substantial evidence exists when reasonable
minds could have reached the same conclusion that was reached by the
commission. Samens v. LIRC,
117 Wis.2d 646, 660, 345 N.W.2d 432, 437 (1984). We must give deference to LIRC's interpretation of a statute when
its experience, technical competence and specialized knowledge aid it in its
interpretation and application of the statute, and we must affirm its
conclusions if they are rational. West
Bend Educ. Assoc. v. WERC, 121 Wis.2d 1, 12, 357 N.W.2d 534, 539 (1984). LIRC has developed significant expertise in
determining whether an employee is acting within the scope of its employment
and its decision in such matters should be given deference. Nigbor v. LIRC, 120 Wis.2d
375, 380-84, 355 N.W.2d 532, 537 (1984).
It is the function of LIRC, not this court, to determine the credibility
of witnesses and to weigh and decide what should be believed. Eastex Packaging Co. v. DILHR,
89 Wis.2d 739, 745, 279 N.W.2d 248, 250 (1979).
Sufficient evidence
supports LIRC's finding that Wintz agreed to pay for Howell's transportation
and exercised control over the means of transportation. Wintz correctly notes that Howell's
unilateral expectations are not sufficient to create an agreement. Likewise, Wintz's post-accident decision to
refuse to pay compensation is not dispositive.
Rather, the parties' words and conduct created an implied contract that
required Wintz to pay for Howell's transportation. See California Line Assoc. v. Wisconsin Liquor Co.,
20 Wis.2d 110, 122, 121 N.W.2d 308, 315 (1963). An implied contract differs from an expressed contract only in
the method of proof. Theuerkouf
v. Sutton, 102 Wis.2d 176, 183, 306 N.W.2d 651, 657 (1981). The implied contract is established by proof
of circumstances from which the parties' intent is implied as a matter of
fact. Id. Howell testified that Wintz had been
previously compensated for travel under circumstances that LIRC reasonably
concluded were similar to the circumstances presented here. Howell's father, who also worked for Wintz,
stated that it was commonplace for the company to pay for travel. In addition, Howell's conversation with the
dispatcher would make little sense if Wintz did not agree to pay for the
travel. Wintz's concern over the price
of airfare implies that Wintz intended to pay for the ticket.
Wintz also exercised
control over the mode of transportation.
Howell's discussion with the dispatcher allows the inference that Wintz
maintained the right to choose the mode of transportation and the
destination. The evidence presented to
LIRC is sufficient to allow it to find that Howell was injured in the course of
his employment and entitled to compensation for those injuries.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.