WENDY A WOODSON, Applicant
EXTENDED FAMILY HOMECARE INC, Employer
WIS SC SELF INSURER FUND, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division 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 order in that decision as its own.
The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed August 14, 2006
woodswe . wsd : 185 : 8 ND § 2.2 § 2.6
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission agreed with the administrative law judge's determination that the applicant credibly described the onset of back pain while lifting Mr. Pintaro in the early morning hours of February 5, 2004. The medical records support the applicant's testimony, and there is no medical opinion disputing Dr. Bartl's credible opinion that the work incident directly caused the surgery performed on February 11, 2004.
Nada and Milisav Lazarezic submitted an argument to the commission that was not made to the administrative law judge. They assert that because the applicant's wages for her employment with Extended Family Homecare, Inc. were paid with checks issued from John and Wendy Kisting's personal checking account, (1) the applicant was an employee of the Kistings, not an employee of Extended Family Homecare, Inc. John Kisting explained in testimony that the applicant was paid with checks from their personal checking account because the corporate checking account was not opened until February 4, 2006, and the corporation was disbanded before any checks were ever issued from its account. Clearly, Wendy Kisting issued checks to the applicant in her corporate officer's role as treasurer of Extended Family Homecare, Inc. The checks represented wages paid for services rendered to the corporation, not to the Kistings. As stated in Wiebke v. Richardson & Sons, Inc., 83 Wis. 2d 359, 364, 265 N.W.2d 571 (1978):
This court has said that "if . . . applying the corporate fiction would... defeat some strong equitable claim, the fiction is disregarded and the transaction is considered as one of the individual himself or of the corporation, whichever will prevent the inequitable result . . ." Marlin Electric Co. v. Industrial Commission, 33 Wis.2d 651, 658, 148 N.W.2d 74 (1967), quoting Milwaukee Toy Co. v. Industrial Commission., 203 Wis. 493, 495, 234 N.W.748 (1931).
In this case, the inequitable result would be avoided by looking at the true nature of the payments, which were payments of wages made by the corporation to the applicant.
cc:
Attorney Dean M. Horwitz
Attorney Michael C. Frohman
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