TIMOTHY BENTON, Applicant
VIPER INVESTMENTS, Employer
WIS WC UEF, Insurer
The applicant submitted a petition for commission reviewing alleging error in the administrative law judge's Findings and Order issued in this matter on August 27, 2007. Viper Investments also submitted a petition and both petitions were timely. The Wisconsin Uninsured Employers Fund submitted an answer to the applicant's petition, and the applicant submitted an answer to Viper Investments' petition. Briefs were submitted by all the parties. At issue are: (1) was Viper Investments subject to the Act on the date of the applicant's injury occurring on January 31, 2005; (2) did the applicant perform services for the employer in a business or in an individual capacity; (3) did the applicant perform his services for Viper Investments as an employee or as an independent contractor satisfying all the conditions under § 108.04(7)(b); and (4) what are the nature and extent of disability and liability for medical expense attributable to the conceded work injury of January 31, 2005?
The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Order, except as herewith modified.
The commission makes the following:
"Regarding conditions 1 and 2 of Wis. Stat. § 102.07(8)(b), there was no dispute that the applicant maintained a separate business as described in condition number 1; or that he held or had applied for a federal employer identification number, or had filed federal tax returns as described in condition number 2. Regarding condition number 3, there was no contract to perform specific services or work for specific amounts of money; rather, the amount of money to be paid to the applicant was to vary in accordance with an indeterminate number of hours of work. Regarding condition number 4, the applicant did not incur the main expenses related to his services for Viper Investments. Regarding condition number 5, there was no credible evidence that the applicant had assumed contractual responsibility for any particular service rendered to Viper Investments. Regarding condition number 6, there was no credible evidence of work or services performed under a contract on a commission, per job, or competitive bid basis. Services were performed for an hourly rate. Regarding condition number 7, the applicant was paid wages for his services and was not subject to profit or loss realizations. Regarding condition number 8, the applicant was not subject to any recurring business liabilities or obligations relative to the services he performed for Viper Investments. Regarding condition number 9, the applicant received an hourly wage, and did not perform services for Viper Investments in a business that depended on the relationship of business receipts to expenditures.
"Accordingly, only conditions 1 and 2 of Wis. Stat. § 102.07(8)(b) were satisfied. Pursuant to the statute, during the last quarter of 2004 the applicant performed his services for Viper Investments as an employee under the Act. Payments that he received for his construction work performed for Viper Investments were covered earnings for purposes of worker's compensation."
The rest and remainder of the administrative law judge's findings are affirmed and reiterated as if set forth herein.
Now, therefore, this
The Findings and Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. The Uninsured Employers Fund previously made payment in compliance with the administrative law judge's order. No additional compensation is due.
Dated and mailed April 14, 2008
bentoti . wsd : 185 : 9 ND
§ 2.13
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission found that the credible evidence of record demonstrates that the applicant performed over $500 in services for Viper Investments in December 2004 which made Viper Investments a subject employer as of January 10, 2005.(1) The credible evidence also demonstrates that the applicant did not perform his services for Viper Investments in his capacity as owner of his personal business; rather he performed those services in an individual capacity after being hired as an individual to perform them. It is clear that the applicant did not perform his services for Viper Investments as an independent contractor meeting all the conditions of § 102.07(8)(b), and therefore performed the services as an employee.
Dr. Klemm's medical opinion is the most credible of those offered. Dr. Klemm observed nonorganic and nonanatomic findings in his physical examination of the applicant, and recounted the various negative studies performed on the applicant in search of a cause for his subjective complaints. Neither the administrative law judger nor the commission found the applicant to have been a credible witness.
cc:
Mr. Dan Williquette
Attorney Joseph Danas
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