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

CAROLYN M KNIGHT, Applicant

THORN APPLE VALLEY INC, Employer

WORKER'S COMPENSATION DECISION
Claim No. 2003-044254


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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed June 18, 2008
knighca . wsd : 175 : 8  ND 3.5

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The applicant asserts in her petition for commission review the administrative law judge erred in determining the department lacked jurisdiction over her claim since the applicant failed to satisfy the requirements stated in Wis. Stat. § 102.03(5)(c). The applicant testified that she was hired by the employer on July 1, 1992 in a telephone call from the employer's representative offering her the job as a truck driver. The administrative law judge appropriately noted that the only proof in support of the applicant's claim was a 1992 bank statement and a deposit slip from First Federal, with a bank address in La Crosse, Wisconsin. However, the bank statement does not establish the applicant was located in Wisconsin on July 1, 1992 or that she made the deposit in question. 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, did not credit the applicant's testimony. The administrative law judge found the applicant's testimony of her location on July 1, 1992 to be incredible and untrustworthy testimony. 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 determination.

Under Wis. Stat. § 102.03(5), if an employee while working outside the territorial limits of the state suffers an injury, for which she would have been entitled benefits provided by the Act had such injury occurred within the state, shall be entitled to benefits if she is working under a contract made in this state in employment principally localized in another state whose worker's compensation law is not applicable to that person's employer. The commission finds that the applicant was not working under a contract made in the State of Wisconsin at the time of her work injury on August 14, 1992. The applicant's testimony and evidence does not establish that she was hired via a telephone call on July 1, 1992 while she was in Madison, Wisconsin. The administrative law judge appropriately noted that although the applicant may be a resident of the State of Wisconsin, she failed to prove that a contract for hire was made from any place in Wisconsin.

Further, the administrative law judge appropriately determined that the applicant's work injury was covered by the Michigan Worker's Compensation Law. The applicant was paid benefits by the Michigan employer for her work injury subsequent to August 1992. When the applicant was not satisfied with the nature and extent of benefits paid in Michigan, she filed a series of appeals and requests for mediation with the Michigan Department of Labor which were dismissed. Therefore, the applicant did not satisfy the provisions of Wis. Stat. § 102.03(5) in that it is not determined the applicant's employment was principally localized in another state whose worker's compensation law is not applicable to her employer. The evidence established that Michigan had jurisdiction over the applicant's claim at the time of her injury. The evidence indicates the applicant pursued her Michigan Worker's Compensation claim and was paid benefits and medical expenses, and that her claim was not denied on jurisdictional grounds.

Mr. Menke, the employer's former safety and human resource manager at the time the applicant was hired in July 1992, testified the applicant underwent repeat drug screening urine tests on June 30, 1992 in Michigan, and upon completion of the test he offered the applicant employment over the telephone; but he was not aware of the applicant's location at the time that he spoke with her. Mr. Menke testified that the applicant was hired and her first day of work was July 5, 1992. Given the evidence the applicant underwent a drug screening in Michigan on June 30, 1992, and given the lack of credible evidence of the applicant's location in Wisconsin at the time she spoke with Mr. Menke on July 1, 1992, and given Mr. Menke's testimony that the applicant started work in Michigan and was hired on July 5, 1992, and given the evidence the applicant filed a claim and was paid benefits for medical expense for her work injury in August 1992 in the State of Michigan, the evidence was sufficient to establish a legitimate doubt that the applicant satisfied the requirements of Wis. Stat. § 102.03(5)(c) to establish jurisdiction under Wisconsin law for a claim for her work injury. The administrative law judge appropriately determined that the employer in this case was not subject to the Wisconsin Worker's Compensation Act, and dismissed the applicant's claim with prejudice.

cc:
Attorney Andrew Meehan
Attorney William R. Sachse



Appealed to Circuit Court.  Affirmed, December 10, 2008.  Appealed to the Court of Appeals.  Affirmed in unpublished summary decision, March 16, 2010.

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