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

JESUS CADENA-BRETADO, Applicant

CERESERO ROOFING, Employer

WIS WC UEF, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2007-017997


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 February 25, 2009
cadenj . wsd : 101 : 9 ND ??2.10,  2.11, 2.13

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

a. Issue on appeal.

The applicant, a roofer by trade, was born in 1970. He was hurt when he fell off a roof on a building where he was installing a roof for the named employer, a roofing company. At the time of his injury, the applicant was working with two other men, Hugo and Eduardo.

On appeal, the Uninsured Employer's Fund (the Fund) argues that Hugo and Eduardo were the applicant's own employees, so that the applicant himself was an "employer" and not the employee of the named employer under Wis. Stat. § 102.07(8m). The applicant contends that Hugo, Eduardo, and he were all working on the same roof as employees of the named employer.

Wisconsin Stat. § 102.07(8m) provides:

(8m) An employer who is subject to this chapter is not an employee of another employer for whom the first employer performs work or service in the course of the other employer's trade, business, profession or occupation.

Wisconsin Stat. § 102.04(1)(b) provides that "employers subject to the provisions of this chapter" include:

(b) 1. Every person who usually employs 3 or more employees, whether in one or more trades, businesses, professions or occupations, and whether in one or more locations.
2. Every person who usually employs less than 3 employees, provided the person has paid wages of $500 or more in any calendar quarter for services performed in this state. Such employer shall become subject on the 10th day of the month next succeeding such quarter.
3. This paragraph shall not apply to farmers or farm labor.

Thus, if the applicant usually employed three employees, or usually employed less than three employees but paid $500 in wages in any calendar quarter, he is an employer subject to chapter 102.

 

b. Burden of proof.

At the hearing and in the briefs, the parties raise the question of the burden of proof on this issue. The supreme court recently touched upon burden of proof issue in Acuity Mutual Ins. Co. v. Olivas, 2007 WI 12, 298 Wis. 2d 640 26 et seq. As the ALJ observed at the hearing, the Acuity Mutual Ins. Co. case--though in some respects factually very similar (as discussed below) to this case--was tried on one party's (Olivas') contractual liability for premiums as an insured of the other party (Acuity). The case did not arise under Wis. Stat. ch. 102 on an injured worker's claim for worker's compensation.

Still, the Acuity court did observe:

Older worker's compensation cases declare that the party seeking to defeat worker's compensation bears the burden to prove facts supporting its position. More recently the court has disavowed this declaration and has ruled that an applicant has the burden to prove that he or she is an employee and that the issue whether the applicant might be an independent contractor does not present an affirmative defense. [Footnotes omitted]

Acuity, at 298 Wis. 2d 640 37. It would seem to follow that an injured worker has the burden of proving that that he or she is not himself an "employer" (and therefore excluded from the definition of "employee" under Wis. Stat. § 102.07(8m)) when that issue is presented.

The law, of course, also recognizes the "presumption that one injured in the service of another is an employee," though the presumption ceases to have force and effect when contrary evidence is produced. See Revels v. Industrial Commission, 36 Wis. 2d, 395, 400, 402; Acuity, 298 Wis. 2d 640 33 et seq. Here, the applicant was injured while performing services for the named employer, and so the presumption of employment arises. However, the Fund has provided at least some evidence--by offering Ceresero's testimony that the applicant supervised, paid, and procured Eduardo and Hugo as members of his own crew, and that he provided the equipment they used--to rebut the presumption. Consequently, the commission concludes that the applicant has the burden of proving he is not an employer excluded from the definition of "employee" under Wis. Stat. § 102.07(8m). See Scholz v. Industrial Commission, 267 Wis. 2d 31, 41b and 41c. (1954).


c. Discussion.

Under the worker's compensation statutes, "helpers" of employees of an employer are themselves employees of the employer, even if not paid directly by the employer. Wisconsin Stat. § 102.07(4)(a) defines "employee" to mean:

(4) (a) Every person in the service of another under any contract of hire, express or implied, all helpers and assistants of employees, whether paid by the employer or employee, if employed with the knowledge, actual or constructive, of the employer, including minors, who shall have the same power of contracting as adult employees, but not including the following:
1. Domestic servants.
2. Any person whose employment is not in the course of a trade, business, profession or occupation of the employer, unless as to any of said classes, the employer has elected to include them.
(b) Par. (a) 2. shall not operate to exclude an employee whose employment is in the course of any trade, business, profession or occupation of the employer, however casual, unusual, desultory or isolated the employer's trade, business, profession or occupation may be. [Emphasis supplied.]

Thus, if Eduardo and Hugo are viewed as the applicant's "helpers," they would be employees of the named employer regardless of whether the employer paid them directly, if they were employed with named employer's actual or constructive knowledge. Here, Mr. Ceresero knew the applicant had helpers, a "crew" he called them. Indeed, Mr. Ceresero testified the applicant only rarely worked alone.

On this issue of whether Eduardo and Hugo were the applicant's helpers, or his own employees, the standards set out in Kress Packaging Co. v. Kottwitz, 61 Wis. 2d 175, 182 (1973) are relevant. In Kress, the court set out a two-part test for determining the existence of an employment relationship in worker's compensation cases. The Kress Packing court held that the primary test is whether the employer has the right to control the details of the work and that the secondary test requires consideration of various conditions including remuneration, the direct evidence of the right to control, respondent's furnishing of tools and equipment and its right to fire and hire.

Under the facts of this case, the commission concludes that Mr. Ceresero, himself a roofer by trade, had the right to control the details of the work even if he did not exercise it. Mr. Ceresero obtained the roofing jobs from the general contractors. Mr. Ceresero made the arrangements with the general contractors under which the supplies like the roofing material, valleys and flashing were delivered to the job site by a certain time, and his testimony indicates he dealt with the general contractor if the materials were inadequate. While the applicant may have instructed or even supervised Hugo and Eduardo, Mr. Ceresero and his company were ultimately responsible to the general contractor for the performance of the job.

As the ALJ points out, the applicant is an undocumented alien who does not have a checking account. The commission views it improbable that the applicant supplied the tools, including the compressors, air guns, scaffolding and ladders that he, Eduardo, and Hugo used to perform the work. Mr. Ceresero testified that he sold all his tools and equipment to Mr. Timm, but it appears from the transcript that the "sale" of the equipment may have occurred only with the sale of the business. That sale itself is the subject of doubtful testimony, given that Mr. Ceresero admitted that he continued writing checks for the business after he supposedly sold it.

The commission is therefore persuaded that the applicant has met his burden of proof in this case.(1) The commission concludes, as did the ALJ, that the applicant was simply a laborer and an employee of the named employer. Hugo and Eduardo may have been the applicant's helpers, but they were not his employees.(2)

cc: Attorney Kristine A. Pihlgren
Attorney Eric W. Lengell


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Footnotes:

(1)( Back ) In weighing the evidence to determine whether the applicant has satisfied his burden of proof, the commission notes the supreme court's repeated admonition: "In cases where the evidence is evenly balanced and an inference may be drawn one way as easily as another, the scale should be turned in favor of the claimant, principally because it was the intent and purpose of the [Workers Compensation Act (WCA)] to bring border-line cases under it and to close up avenues of escape which would naturally be suggested to those seeking to avoid liability under the [WCA]." Wisconsin Electric Power Co. v. LIRC, 226 Wis. 2d 778, 796 (1999) (quoting CBS v. LIRC, 219 Wis. 2d at 565, 582 (1998) (quoting City of Phillips v. DILHR, 56 Wis. 2d 569, 580 (1972))).

(2)( Back ) Because it concludes that the applicant was not an employer, it does not reach the issue presented in Acuity Insurance Company v. Whittingham, 2007 WI App 210, 305 Wis. 2d 613.

 


uploaded 2009/03/10