STEVEN G CURTIS, Applicant

R & M DECORATING, Employer

WIS WC UEF, 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.

Dated and mailed May 21, 2008
curtist . wsd : 175 : 8 ND § 2.2

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Mr. Ramirez, who owns R & M Decorating, contends in his petition for commission review the administrative law judge erred in determining that on or about October 25, 2004, R & M Decorating was an employer subject to the Worker's Compensation Act. Mr. Ramirez indicates that he would have appeared at the hearing on January 8, 2008 but was unaware that a hearing was scheduled. However, the hearing notice was sent to R & M Decorating at the correct address. The departments order was sent to R & M Decorating at the same address as the hearing notice and Mr. Ramirez received the department's order in a timely manner. Mr. Ramirez has not stated a valid reason for failing to appear at the hearing on January 8, 2008.

Pursuant to Wis. Stat. § 102.04(1)(b)1, an employer is every person who usually employs three or more employees, whether in one or more trades, businesses, professions, or occupations and in whether one or more locations. The administrative law judge appropriately noted that pursuant to the Wisconsin Supreme Court Decision in the Stapleton Cheese Co. v. Industrial Comm., 249 Wis. 133 (1947) immediately upon employing three or more persons an employer becomes subject to the Act and must have insurance coverage.

In this case, the applicant testified that R & M Decorating employed three or more persons to perform painting work on or about October 25, 2005 at the time of the applicant's injury. The applicant testified at the time of the work injury when he arrived at the worksite he saw three other workers already performing the painting work. The applicant testified that he understood that he would receive the same $10.00 per hour wage that he had received in the past while working for R & M Decorating. The evidence indicates the applicant had previously worked for R & M Decorating, painting a warehouse in Kenosha with three coworkers in the spring 2004.

Pursuant to Wis. Stat. § 102.04(1)(b)2, a person with fewer than three employees becomes subject to the Act if he or she has paid wages of $500.00 or more in any calendar quarter for any services performed in this state. The applicant testified that he was paid $10.00 an hour by R & M Decorating and he worked at least 40 hours a week in the spring of 2004. The administrative law judge appropriately found that it was credible and substantial evidence that Mr. Ramirez paid the applicant more than $500.00 in either the first or second calendar quarter of 2004, or both, when he paid him at least $400.00 for at least ten consecutive weeks in the spring of 2004. The applicant testified that he worked for three months at the jobsite in the spring of 2004 with several coworkers.

The applicant testified that Mr. Ramirez was on the jobsite at the time of his work injury on October 24, 2004. The applicant testified that he saw Mr. Ramirez sitting in a van outside of his residence at the time that a coworker pounded on the window and asked him if he wanted to work. The administrative law judge who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, credited the applicant's testimony. Based upon an independent review of the evidence in the record, the commission found nothing to warrant overturning the administrative law judge's credibility determination. The administrative law judge appropriately held that based on the applicant's extended employment by Mr. Ramirez at $10.00 an hour for similar services in the spring 2004, there was an implied contract that Mr. Ramirez would pay the applicant at the rate of $10.00 per hour in October 2004. Therefore, the evidence supported the finding the applicant was a person in the service of Mr. Ramirez doing business as R & M Decorating on October 24, 2004, under an implied contract of hire to scrap and paint the building at the rate of $10.00 per hour, with the actual knowledge of Mr. Ramirez and R & M Decorating. Therefore, the applicant was appropriately awarded temporary total disability benefits from October 25, 2004 to April 18, 2005, less a credit to UEF for prior payments totaling $5,333.50 leaving a balance due to the applicant of $1,288.80. An interlocutory order was appropriately entered in this matter.

cc: Attorney Scott W. French
Attorney Michael C. Frohman

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