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

ROBERT T PROSCH, Claimant

BANKERS LIFE & CASUALTY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05001155MD


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 ordered further hearing in this matter which was held on October 13, 2005.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ at the original hearing and the remand hearing. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant provided services to the employing unit for approximately eleven months as an insurance agent. His last day of work was in February of 2004.

The issue to be decided is whether the claimant's services for the employer were covered under the Wisconsin Unemployment Insurance Law because the claimant was an insurance agent.

108.02(15)(k), Wis. Stats., provides in pertinent part as follows:

(k) 'Employment' as applied to work for a given employer other than a government unit or nonprofit organization, except as such employer duly elects otherwise with the department's approval, does not include service:

*                     *                     *

6. By an individual for a person as an insurance agent or an insurance solicitor, if all such service performed by such individual for such person is performed for remuneration solely by way of commissions. (Emphasis added).

The claimant received most of his remuneration by way of commission. However, the employer also paid a portion of the premium for the claimant's health, life and dental insurance. The commission has previously found that such contribution constitutes remuneration. See Pacesetter Corporation v. LIRC & David Kriescher, Case No. 95-CV-495 (Wis. Cir. Ct. Brown County March 25, 1996); Geib v. Mutural of Omaha Insurance Co., UI Dec. Hearing No. 92005533FL (LIRC Sep. 29, 1993). The claimant did not receive remuneration "solely by way of commission."

The commission therefore finds that the claimant was not an insurance agent whose remuneration was solely by way of commission, within the meaning of Wis. Stat. § 108.02(15)(k)6., and the services performed for the employer were covered under the Wisconsin unemployment insurance law.


DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed. Accordingly, all of the claimant's wages with the employer are chargeable for benefit purposes.

Dated and mailed November 8, 2005
proscro . urr : 132 : 1 : ET 483.07

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission has modified the findings consistent with testimony presented at the remand hearing. At the original hearing the employer maintained that it did not pay any portion of the premium for the claimant's group insurance. At the remand hearing the employer testified that it did contribute a portion of the premium. The employer also argues that the claimant was an independent contractor. However, the only issue before the commission is whether the claimant performed services in excluded employment pursuant to Wis. Stat. § 108.02(15)(k). A separate initial determination found the claimant did not perform services for the employer as an independent contractor. The employer did not appeal that adverse determination.

cc:
Bankers Life & Casualty (Wausau, Wisconsin)
Attorney Michele M. McKinnon


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uploaded 2005/11/22