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

DYKMAN, J.

(dissenting). It is tempting to look at Mahler’s height and weight, and conclude that she was negligent or foolish in attempting to get to work by climbing over a cable designed to discourage that behavior. The majority, by considering Mahler’s height and weight, succumbs to this temptation. However, employee negligence is not relevant in worker’s compensation cases. Brenne v. ILHR Department, 38 Wis. 2d 84, 91, 156 N.W.2d 497, 500 (1968).

The real issue is whether Mahler was going to her employment in the "ordinary and usual way.” Sec. 102.03(l)(c)2., Stats. "[OJrdinary and usual way” is not a term with only one possible meaning. It can be interpreted narrowly or broadly. For instance, Mahler was going to work as she had done many times before, by parking her car and traversing the company’s parking lot on foot. On the other hand, she was going to work in a way she had never done before, because each time she walked across the parking lot, her footsteps fell in slightly different places.

Courts recognize an agency’s expertise, and the value of uniform rules for persons seeking an administrative remedy. We therefore affirm agency action, even when that consists of statutory interpretation, unless the agency’s conclusion is unreasonable. The majority recognizes this rule.

*873I, however, cannot conclude that the agency’s broad interpretation of sec. 102.03(1), Stats., is unreasonable. Under the majority’s theory, an injured employee will be denied compensation unless the employee is injured while doing something exactly as he or she has done it before, or is not negligent while attempting something new. The purpose of worker’s compensation statutes is to provide financial and medical benefits to persons whose injuries are "work-connected.” Brenne, 38 Wis. 2d at 91-92, 156 N.W.2d at 500.1 would conclude that the agency’s decision to do so for Mahler was reasonable.