NICHOLAS WRIGHT, Applicant

SPRING TIME DAIRY, Employer

WISCONSIN WC UEF, Insurer

The Wisconsin Worker's Compensation Uninsured Employers Fund submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on September 26, 2008. The applicant submitted an answer to the petition and briefs were submitted. At issue is whether or not Spring Time Dairy was an employer covered under the Wisconsin Worker's Compensation Act on January 29, 2006, the date on which the applicant sustained an injury on the Spring Time Dairy farm. If Spring Time Dairy is found to have been a covered employer, then a work-related injury would be conceded, and nature and extent of disability and liability for medical expense would arise as issues.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses her Findings and Interlocutory Order. The commission makes the following:

The applicant worked as cattle herdsman for Spring Time Dairy, a dairy and livestock farm. He sustained serious injury to his spine on January 29, 2006, when a tractor overturned and pinned him underneath it. At issue is whether or not the farm was a covered employer on the date of injury, pursuant to Wis. Stat. § 102.04(1)(c), which provides in relevant part that covered employers include:

"(c) Every person engaged in farming who on any 20 consecutive or nonconsecutive days during a calendar year employs 6 or more employees, whether in one or more locations. The provisions of this chapter shall apply to such employer 10 days after the twentieth such day."

The applicant began his employment with the farm on December 30, 2005. He alleged that while he worked there the farm owners, Patrick and Amy Zweifel, also employed six laborers on the farm, as well as another laborer in the Zweifel's stockyard located five or six miles from the farm. This stockyard employee was named Luis. The applicant additionally alleged that on any given day of the week, one of these laborers had the day off while the others worked. If this testimony were accurate, on any given day there would have been six employees (including the applicant) working on the farm, or seven total employees counting Luis. The farm would have become a covered employer ten days after the twentieth day of this employment schedule.

An individual named Justin Monson was the farm's herdsman from October 12, 2005, until December 24, 2005. Monson credibly testified that while he worked on the farm only three laborers worked with him each day, not counting Luis. That amounted to five total employees, including Monson and Luis, working on any particular day. Monson additionally testified in response to a question asking whether there were ever more than three laborers working with him on the farm:

We'd have a guy take a day off or when we would have a guy for an hour or two or half a morning and then they would be gone. A lot of those guys I never knew their name. They would just be in and out.

Monson credibly testified that the general rule was that he and three laborers worked each day on the farm, and that while there was a lot of work to do, there was no need for more than three laborers plus him.

Patrick Zweifel's testimony was consistent with Monson's testimony that no more than five employees, including the herdsman and Luis, were employed on any particular day. Zweifel credibly testified that although he employed a total of five laborers, two of them were float people and only three of them worked on the farm on any given day, with the others having the day off work. Therefore, each day there were up to five total employees but never six. Zweifel was aware of the six-employee provision of the statute, and deliberately avoided having six employees on any given day. Amy Zweifel also gave credible testimony to the effect that there were no more than five employees working on any particular day.

The administrative law judge (ALJ) accepted the applicant's testimony concerning the number of employees working on the farm during his period of employment with the employer, and found coverage effective January 28, 2006. The ALJ counted the applicant's first two days of work on December 30 and 31 of 2005, and the first 18 days of January 2006, to get to 20 days. The tenth day after January 18, 2006, was January 28, 2006. However, the ALJ and the applicant now concede this reasoning was incorrect, because the statute requires 20 days on which six or more employees work during a calendar year. The ALJ used two separate calendar years to count the 20 days. Therefore, even accepting the applicant's testimony, coverage would not have occurred under the statute until January 30, 2006, one day after the work injury.

The applicant argues that the size of the farm, the applicant's identification of six farm laborers by name, Patrick Zweifel's testimony concerning "tryouts" of other workers, and Zweifel's testimony that he employed an extra laborer on days when he held his monthly cattle sale, all lead to the inference of coverage stemming from work performed in calendar year 2005.

The applicant was not hired until December 30, 2005. Therefore, he could not provide any firsthand testimony regarding any particular 20-day period of employment on the employer's farm during 2005. Furthermore, although the administrative law judge indicated to the commission that she found the applicant's testimony credible that there were six employees working each day between December 30, 2005 and January 29, 2006, the commission found credible Monson's testimony that the routine during his employment in 2005 was that no more than three laborers, plus he and Louis, worked on any given day. Monson had no reason to distort the facts, and his testimony was consistent with the Zweifels' testimony concerning employment on the farm. Additionally, Monson's testimony that no more than five employees were needed to perform the farm work, credibly refuted the applicant's argument that the size and scope of the farm operation should lead to a finding that more than five employees were needed.

The "tryouts" of other workers that occurred on a sporadic basis lead to the inference that on a small number of occasions, there may have been days when up to six employees were employed on the farm. This could occur on a particular day if the regular contingent of five employees worked, and a sixth individual was given a "tryout" on that same day. However, no evidence was submitted that would demonstrate that this occurred on any significant number of days; and in fact, Patrick Zweifel and Monson credibly testified that "tryouts" regularly occurred as a result of one of the regular employees missing that day's work for a personal reason. On such days there still would have been only five total employees.

Patrick Zweifel conceded that an end-of-the-month cattle sale occurred each month, and that during 2005 there may have been a month with an extra sale, totaling 13 sales for that year. Zweifel conceded that on these sale days he normally employed an extra laborer, which would make a total of six employees, counting the applicant and Luis. However, Zweifel gave uncontradicted testimony that Luis only worked four days each week, and therefore it could not be said with certainty that Louis was working on each of these sale says. However, even assuming Luis was working on each of those days, it would be highly speculative to find that the additional seven days of six-employee employment needed to reach the 20-day statutory threshold, could be inferred from the "tryout" days.

Accordingly, based on the evidence submitted, the commission finds that it was not demonstrated that on January 29, 2006, the employer was a covered employer, pursuant to the provisions of Wis. Stat. § 102.04(1)(c).

Now, therefore, this

The Findings and Interlocutory Order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed March 31, 2009
wrighni . wrr : 185 : 6 ND § 2.2

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

cc: Attorney Anthony Baer
Attorney Dan Gartzke
Attorney Angela McKenzie

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