STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


MARY HOWICK,
COMPREHENSIVE ASSESSMENTS, Employer

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 649883, Hearing No. S9900152MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employer is liable for unemployment taxes or contributions plus applicable interest based on the services of the named individuals listed in the appeal tribunal decision.

Dated and mailed March 28, 2001
howicma2 . ssd : 178 : 1 EE 410  EE 410.08

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that the doctors working for her provided their services as independent contractors and not as employees. In particular, she argues that they had a risk of loss if a consultation ran long or they lost a report.

The commission has held that the profit or loss criterion of the statute contemplates the existence of a genuine business endeavor. In an entrepreneurial sense, a significant investment is put at risk and there is the potential for real success, a growth in value of the investment, or real failure in the sense of an actual loss in the investment. Here there was insufficient proof of any such "success" or "failure". The doctors received a set fee for a limited service subject to slight risk of overtime or redoing work found unsatisfactory.

The employer also offers to provide self-employment tax returns for these individuals. The opportunity for the employer to offer evidence in support of its position was at the original hearing in this matter. The commission's rules provide that its review is to be made solely on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. While the commission does have the discretion to order the taking of additional evidence in matters before it, that authority is exercised only in a few exceptional circumstances. Here, there was adequate notice of the fact that the hearing would be the parties' only opportunity to present evidence. There is no credible and convincing evidence that this opportunity was improperly limited at the hearing, or that a party has discovered material noncumulative evidence since the hearing which they could not have known of before the hearing. Finally, the employer has not offered any other compelling reason to grant a new hearing. There fore, further hearing will not be granted.

While the employer maintains that the nature of these doctors' training required they provide services of this type, that does not change the department's analysis of the independent contractor provisions. These workers do not meet the statutory standard for independent contractors. Therefore the appeal tribunal decision is affirmed.

cc: Attorney Jorge L. Fuentes


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uploaded 2001/03/29