CHAD HALL, Applicant

SCHOOL DIST ST CROIX FALLS, Employer

WAUSAU BUSINESS INC CO, Insurer

The employer submitted a petition for commission review alleging error in the administrative law judge's findings and interlocutory order dated October 27, 2006. The applicant submitted an answer to the petition and both parties submitted briefs. At issue is whether an employer/employee relationship existed between the applicant and the respondent at the time of the injury. The respondent claimed the applicant was a volunteer and therefore is not subject to the act.

The commission has carefully reviewed the entire record in this matter and after consultation with the administrative law judge regarding his assessment of the credibility of witnesses, hereby reverses the findings and order below and substitutes the following therefor:

The applicant testified that he was injured on December 22, 2003 while practicing with the basketball team when he hurt his left knee. The applicant testified that he had a locker in the coaches' room and free transportation to the games while riding on the team bus. In addition, the applicant had access to the employer's gymnasium and weight room as did the other coaches, who also had a key to the weight room. The applicant also received two shirts and a duffle bag along with a key to the facilities, and a pass to all conference games to scout other teams. The applicant used the pass to attend other conference basketball games sometimes to scout and sometimes for his own personal pleasure. The applicant testified at the end of the season the head coach and the other paid assistant coaches took up a collection and gave him something approximating $600 as an appreciation for his efforts. The applicant admitted that the coaches were not required to give him any money and that it was done gratuitously.

The applicant admitted in his testimony that he had no expectation of monetary compensation as an assistant basketball coach. The applicant testified he received no school credit and did not receive any certification as a result of his work as a volunteer assistant coach. The applicant testified that his hope was to become a coach following his graduation from college, and he believed that working as a volunteer would help him gain experience so that he would have a better prospect for getting a coaching job.

Mr. Anderson, the head basketball coach who also is a CPA, testified the applicant received the coaching shirts, duffle bag, key to the facility, passes to the events, access to the locker room and the ride on the school bus because he was a volunteer basketball coach. Mr. Anderson admitted these things all helped the applicant to be an assistant basketball coach and were not funds or compensation from the school district.

The applicant admitted in a recorded statement taken on April 14, 2004 he did not receive any compensation for his work as a volunteer coach. The applicant was asked whether as part of the agreement with the school district there was any consideration at all of wages, salaries or compensation and stipends. The applicant stated the only thing he got out of it was when there were basketball camps he would get a big chunk of that, and it is kind of a way of volunteering and then, of course, the coaches floated him some money, too, from their wages, referring to the other paid coaches. The applicant was unaware of whether the camps and clinics were run through a community organization or through the school district itself. The applicant indicated he got a certain amount of money from the clinics and camps, like 60 percent of the funds, and the other coaches split the rest of the money. The applicant also indicated that he worked on Wednesday night open gyms.

The applicant could not clarify whether the basketball camps were run separately from the boys' varsity program. The applicant indicated the camps were generally held in the summer, although they also had camps in the spring. Coach Anderson said in a separate recorded statement on April 20, 2004 the school district gave him permission to have a volunteer assistant coach prior to the 2003-04 basketball season. Mr. Anderson stated that to call the applicant a volunteer was kind of embarrassing. Mr. Anderson admitted there was a volunteer contract signed and the other coaches were paid coaches. Mr. Anderson stated he gave the applicant part of his coaching check when he received a lump sum payment at the end of the season following the applicant's injury, as a gratuity. Mr. Anderson stated the applicant did not get a separate check from the school, but he did receive payment for different clinics and camps that were run through the school, but assumed they were under $600 since the school district would have issued a 1099 form. Mr. Anderson stated the school district had him as contracting as a volunteer but he was originally hoping the applicant had got paid enough to be considered an employee, but that wasn't the case.

The commission consulted with the administrative law judge concerning his assessment of the applicant's demeanor and testimony that the district had no legal obligation to pay him any money under the contract he signed as a volunteer basketball coach, and he had no expectation for such payment. The commission also discussed the administrative law judge's assessment of the testimony from Mr. Anderson that although the applicant signed a volunteer contract it was somewhat embarrassing to have the applicant go as an unpaid assistant, and he and the other coaches who were paid assistants gave the applicant part of their check at the end of the season as a gratuity. The administrative law judge indicated that he found the applicant to be straightforward and credible in his testimony. The administrative law judge indicated the applicant pursued the volunteer coaching position in order to help him later on become a full-time basketball coach after he finished college. The administrative law judge noted that the applicant's work as a volunteer granted him access to the school gymnasium which saved him the cost of a membership in a private health club. In addition the applicant received such items as a duffle bag and was granted admission to other conference games to scout those games, but he also attended other conference games on his own for his own enjoyment. Based upon an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility assessment.

Under Wis. Stat. § 102.07, an employee is defined as "Every person, including all officials, in the service of the state or any municipality ... under any appointment, or contract of hire, express or implied, and whether a resident or employed or injured within or without the state." One of the usual and ordinary tests, and in many instances the decisive test, which stamps one engaged in performing work as an employee rather than an independent contractor, is the fact that wages are paid, and that upon an hourly, daily or weekly basis. C.R. Meyer and Sons Co. v. Grady, 194 Wis. 615, 623 (1928).

In Klusendorf Chevrolet v. LIRC, 110 Wis. 2d 328, 335 (Ct. App. 1982), the court of appeals concluded that although wages are a necessary part of an employer/employee relationship, the wages need not be money. The court noted that those who perform services gratuitously are generally excluded from the definition of employee but the payment necessary to establish a contract of hire need not be money. In the Klusendorf case, the injured applicant took his automobile to be served at the Klusendorf garage and while waiting, agreed to help transfer and drive a vehicle for Klusendorf to a second location. Although the injured applicant had hopes of becoming an employee of Klusendorf in the future, there was no agreed upon compensation for the service provided by the injured applicant, and he was fatally injured while helping to drive the vehicle to a second location. The court of appeals found that the evidence showed that the applicant was contemplating seeking reemployment and that driving the car was a service to Klusendorf, and that Klusendorf did not send a bill for the work performed on the applicant's car after his death. The court of appeals found that although the applicant's services were of benefit to Klusendorf, that factor was not wages, and no evidence supported the inference that the cancellation of the bill for services was done in return for Klosterman's services in delivering the car.

Similarly in our current case, there is no evidence the applicant had any expectation that wages would be paid by the school district. The applicant entered into a contract as a volunteer assistant basketball coach. The applicant admitted the district had no legal obligation to pay him any money under the contract and he had no expectation for such payment. The only payments received by the applicant were as a gratuity from the head coach and the other paid assistant coaches as a thank you at the end of the season and following his work injury. There was no evidence the school district authorized such payment.

In Harper v. Nordic Hills Inc. (LIRC Dec. 8, 1999), the commission found that an individual working for the National Ski Patrol, a voluntary organization, was found to be an employee covered under the act for an incident in which he was injured while acting on the ski patrol. The commission found that although the National Ski Patrol is a voluntary organization it was established that the respondent was well aware of the services the ski patrol had performed for it, and depended upon those services, and agreed through its ski patrol director to provide specific compensation for such services. In our current case there is no evidence that the school district or any of its agents specifically agreed to provide compensation to the applicant for his services as a volunteer basketball coach.

In addition, the pass given to the applicant for conference games, as well as the key to the exercise room and the gymnasium, were given to the applicant for use in his duties as a volunteer assistant coach, and not conferred as a benefit for performing such duties. The evidence also did not indicate that any money the applicant received from running clinics and camps was sanctioned by the school district, or operated by the school district. Mr. Anderson testified the applicant received some chunk of money from camps and clinics run through the school, but the evidence indicates that such camps were run in the spring and summer, and it is not clear that these camps were run as part of the applicant's assistant coaching duties, or whether he was a paid participant of the coaching staff at such clinics.

The evidence did not establish that any money was paid to the applicant from the school district for his work at clinics or camps. It is clear from the evidence that the head basketball coach, Mr. Anderson, was attempting to try and make it look as if the applicant was an employee in this case. The head coach admitted that he thought it was an embarrassment the applicant was only a volunteer and not considered as a paid employee. However, there is no evidence that the school district considered the applicant to be an employee, or anything other than a volunteer, and the evidence does not establish the head basketball coach was authorized to convert the applicant to an employee in this case.

Based on the information presented in the record the commission finds the evidence was sufficient to raise a legitimate doubt that the applicant was an employee of the school district at the time of his injury, but rather acted as a volunteer. Therefore the applicant's claim for benefits must be dismissed.

Dated and mailed June 25, 2007
hallch . wrr : 175 : 9    ND 2.17

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc:
Attorney Jason Whitley
Attorney James Moermond

Appealed to Circuit Court.  Affirmed October 6, 2008.  Appealed to the Court of Appeals.  Affirmed November 24, 2009./  Petition for review in Supreme Court denied.

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2007/07/05