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


MARTINA E VAN HOEF, Employe

MEDICAL COLLEGE OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98603775MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe obtained her medical license in the Netherlands. She worked as a visiting assistant professor for the employer. She worked at the International Bone Marrow Transplant Registry which is a division of the Health Policy Institute of the Medical College. She began her position in 1996 in the employ of the Medical College of Wisconsin Affiliated Hospitals Inc. From April 1, 1997 until July 1, 1997, the employe performed her services for pay for both the employer and the Medical College of Wisconsin Affiliated Hospitals Inc., a consortium of hospitals that hire and pay for resident house staff. (1) The employer termed its relationship with the employe during that period as a "consultant" although the nature of her work did not change, only the amount received from the employer. On May 16 and June 1st of 1997 she received $650 payments from the employer. On July 1, 1997, she ceased working for the Medical College of Wisconsin Affiliated Hospitals Inc., and continued her work solely in the employ of the employer. (2) While working for the Medical College of Wisconsin Affiliated Hospitals Inc. and receiving the $1300 payments from the employer, she was also enrolled as a graduate student in the Epidemiology Program at the Graduate School of Biomedical Sciences of the employer, from August 19, 1996 to October 22, 1997. She enrolled on a part-time basis and took courses only because she was required to do so by the employer. It was a condition of her employment that she be a student in epidemiology, not to enable her to obtain a degree, but to enable her to obtain training the employer believed necessary to do independent work. Her tuition was paid for by the employer. The employe was not in training to be licensed in the United States.

The employe initiated a benefit claim in week 41 of 1997. Therefore her base period consists of the 3rd and 4th quarters of 1996 and the 1st and 2nd quarters of 1997. The issue to be decided is whether the employe's services for the employer were performed in excluded employment.

Wisconsin Statute § 108.02(15)(i) provides:

"(i) `Employment' as applied to work for an educational institution, except as such institution duly elects otherwise with the department's approval, does not include service:

1. By a student who is enrolled and is regularly attending classes at such institution;

In Bachrach v. DILHR, 114 Wis. 2d 131 (Ct. App. 1983), appellants were graduate students working for a university part- time as teaching assistants, project assistants, or research assistants. The work performed was offered only to students as a type of financial aid. Most of the appellants were doctoral candidates working on their dissertations. The appellants all were taking credit graduate courses. None of the appellants were required to attend regularly scheduled class meetings. Rather, they met irregularly with their respective professors, and some occasionally attended meetings. The appellants made normal progress toward their degrees in the semesters that they were working. The appellants filed for benefits after their work with the university ended. The commission denied benefits because their services for the university occurred while they were students enrolled in and regularly attending classes at the university. The commission reasoned that the phrase "enrolled and is regularly attending classes" focused on the relationship of the employe with the educational institution/employer. The commission reasoned that an employe in the employ of an educational institution, as an incident to and for the purpose of pursuing a course of study at such institution has the status of a student in the performance of such service. The commission found that attendance at classes in the traditional sense was not necessarily controlling. The appellants argued that the commission`s construction made the "regularly attending classes" requirement surplusage. The court disagreed stating:

"The commission does not read `regularly attending classes' out of the statute. The regular attendance requirement, as demonstrated by the quoted federal regulations, is not intended to differentiate between students who attend class meetings and those who do not. It is intended to differentiate between a person whose primary relation to the university is as an employee but who also takes courses, and a person whose primary relation to the university is as a student but who also is employed by the university."

Bachrach at 139.

The commission finds that the employe's services for the employer were not excluded under Wis. Stat. § 108.02(15)(i). The employe's primary relationship to the employer was as an employe. She was not enrolled in courses in order to obtain a degree but because the employer believed it would assist her in her position. While the employe was a student prior to her employment, this was also at the employer's behest and due to the unique relationship between the employer and the Medical College of Wisconsin Affiliated Hospital, Inc. and the respective institutions, administrative and funding arrangements and requirements.

Wisconsin Statute § 108.02(15)(j) provides:

"(j) `Employment' as applied to work for a given employer, except as such employer duly elects otherwise with the department's approval, does not include service:

1. By an individual who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on as a student in a full-time program, taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program and such institution has so certified to the employer, except as to a program established by or on behalf of an employer or group of employers;
* * *
3. As an intern in the employ of a hospital by an individual who has completed a 4-year course in a medical school;"

The employe's services for the employer were not excluded under Wis. Stat. § 108.02(15)(j)1. or 3. The employe's employment was not part of a work-study program. Her employment was not a part of any education program or requirement of a degree. Finally, the employe was not working as an intern in the employ of a hospital. The employe was not participating in any intern program.

The commission therefore finds that the employe's services for the named employer were covered under the Wisconsin unemployment insurance law, within the meaning of Wis. Stat. § 108.02(15)(i) and (j).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe's services for the employer were covered under the Wisconsin unemployment insurance law.

Dated and mailed: December 9, 1998
vanhoma.urr : 132 : 1 ET 483.01 ET 498

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission's reversal of the administrative law judge's decision is not based on a differing impression of credibility but upon reaching a different legal conclusion when applying the law to the facts.


Footnotes:

(1)( Back ) In a prior commission decision, Van Hoef v. Medical College of Wisconsin Affiliated Hospital Inc., UI Dec. Hearing No. 97607790 (LIRC Apr. 17, 1998), the commission found that the employe was working for the MCWAH in covered employment during her base period, the 3rd and 4th quarters of 1996 and the 1st and 2nd quarters of 1997, and was paid wages by the MCWAH, of $7,973.70 in each quarter, for total wages from that entity of $31,894.80. The commission noted that department records showed that the employe was paid $1,300.00 in the second quarter of 1997 or April through June, from the Medical College of Wisconsin. The commission remanded the issue of whether her wages from the Medical College were earned in covered employment. That is the issue now before the commission.

(2)( Back ) While the employer termed the employe's relationship with it in April through June as a "consultant" she was paid by the employer for services performed and the presumption is that such services were performed as an employe. Furhter, there was litle if any change in the employe's position beginning in July 1, 1997, beyond the fact that she was paid solely by the employer.


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