Opinion finds motorcycle trip was mainly ‘social outing,’ not really ‘marketing mechanism’
By Eric Heisig
The Daily Record Newswire
An attorney left paralyzed during a motorcycle crash that occurred when he was traveling with clients is not eligible for workers’ compensation benefits, since he was not technically working when he crashed, the Wisconsin Court of Appeals ruled last week.
The crash happened in September 2006 when attorney Jacob Westerhof of DeWitt Ross & Stevens SC, Madison, lost control of his motorcycle while riding near Wausau with Steve Franken and his wife. The crash left him a quadriplegic.
Westerhof, a litigant and shareholder at the firm, met Franken through a poker group he said he joined to network and obtain clients. The Frankens had invited Westerhof to go to a Harley-Davidson rally in Tomahawk, but Westerhof and his attorney argued the trip was business-related, since the trio also planned to stop by a home the Frankens owned to take pictures for some litigation.
Still, Wisconsin’s Labor and Industry Review Commission denied Westerhof’s workers’ compensation claim, and the Court of Appeals, in a per curiam decision from District 4, upheld the commission’s decision. DeWitt Ross & Stevens and its insurer, Employers Assurance Corp., do not have to pay the claim.
According to the appeals opinion, the commission said Westerhof generated very little business from the poker group and rejected the idea that it was Westerhof’s “marketing mechanism.”
“Based on our review of the record, we conclude that there was credible and substantial evidence to support the Commission’s conclusion that the motorcycle trip was ‘simply a social outing among friends who occasionally did business together,’” according to the opinion.
Westerhof said he was disappointed in the court’s decision and would be talking to his attorney about whether to petition the state Supreme Court for review.
“The firm never told us specifically what to do,” Westerhof said. “It was up to us. … the firm knew what I was doing and recognized what I was doing as work-related, and that’s not disputed.”
Roland Cafaro, of Cafaro Law Offices SC in Milwaukee who represented the firm and its insurance company, said the court’s decision was in line with what he had argued in front of the commission. Even if the group had planned to stop by the home, he said, the primary reason for the trip was for fun, not business.
“If he had truly been on a business trip, clearly this would have been a compensable case,” Cafaro said. He added that Westerhof waited three years to file a claim against his firm.
A message left at DeWitt, Ross & Stevens was not returned Thursday.
Still, the opinion gives a little bit of insight into how some firms work. The judges wrote that Westerhof was paid for his legal work, as well as clients he brought into the firm, regardless of whether he took them on as clients. The firm did not pay Westerhof for his time at the poker games, but it did reimburse him for food and drinks he brought.
The firm also reimbursed some expenses for when he went on trips to Las Vegas with people in the poker group, according to the opinion.
Cafaro said the type of outside-the-office work the opinion described is common among larger firms.
Westerhof said the type of networking he did was not done by everybody, but he was far from unique in what he did. He added that the firm’s president testified in a deposition that the trip would have been reimbursed had it not been for the crash.
“Different attorneys did different things that they thought would be helpful,” Westerhof said. “It’s all about relationships.”
Cafaro said reimbursed expenses should not simply be construed as the firm’s acknowledgment that everything Westerhof did was for business, however.
Westerhof said the firm never properly explained what made the trip with the Frankens different from other outings with his poker group.
The case attracted the attention of several workers’ compensation attorneys, since the situation was so rare.
Charlie Domer, an attorney with Domer Law LLC in Madison, said he has known about the case since the LIRC issued its decision.
“This case … seems to be suggesting that the commission and the courts are almost weighing the merits or the success of business or marketing relationships,” Domer said.
The courts, he said, seem to be saying one’s marketing activities must bring in business in order to be deemed valid.
Domer said these types of cases are rare, especially those that deal with business activity in a recreational activity. Because of this, he said the case law isn’t as developed, and the line on where fun ends and business begins is unclear.
Cafaro agreed.
“It’s not necessarily crystal clear,” he said. “It’s something that has to be determined on a case-by-case basis.”
Westerhof said he still is an employee of the firm. However, he is not listed on the firm’s website.
