GERALD SCHOOL, Applicant

JEREMY W WEIHBRECHT, Respondent

WIS WC UEF, Insurer

The applicant, Gerald School, in this reverse application, submitted a petition for commission review alleging error in the administrative law judge's Findings and Order dated June 30, 2009. At issue is whether the respondent, Jeremy W. Weihbrecht, the injured worker, was the applicant's employee or an excluded independent contractor under Wis. Stat. § 102.07(8)(b) on the date of the accident.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and modifies in part the findings and interlocutory order of the administrative law judge. The commission makes the following:

Delete the word "applicant" in the first sentence on the top of page 4 of the administrative law judge's FINDINGS OF FACT and CONCLUSIONS OF LAW and substitute therefor "respondent";

In the first sentence in third full paragraph on page 6 of the administrative law judge's FINDINGS OF FACT and CONCLUSIONS OF LAW deleted the word "applicant" and substitute "respondent";

In the third sentence in the third full paragraph on page 6 of the administrative law judge's INTERLOCUTORY ORDER delete the word "applicant" and substitute the word "respondent";

In the fourth sentence in the third full paragraph on page 6 of the administrative law judge's INTERLOCUTORY ORDER delete the word "applicant" and substitute the word "respondent";

In the fifth sentence in the third full paragraph on page 6 of the administrative law judge's FINDINGS OF FACT and CONCLUSIONS OF LAW delete the word "applicant" and substitute the word "respondent"; and in the last sentence in the third full paragraph on page 6 of the administrative law judge's FINDINGS OF FACT and CONCLUSIONS OF LAW delete the word "applicant" and substitute the word "respondent".

NOW, THEREFORE this

The findings and interlocutory order of the administrative law judge are affirmed in part and modified in part in accordance with the above-findings. Within 30 days from the date of this order, the applicant, Gerald School, shall pay respondent, Jeremy W. Weihbrecht, permanent partial disability benefits in the amount of One thousand one hundred sixty dollars ($1,160.00). In the event the Wisconsin Worker's Compensation Uninsured Employers Fund pays or has paid the aforementioned award, the fund shall be entitled to reimbursement from Gerald School.

Jurisdiction is reserved for such further findings, orders and awards as may be warranted in the future.

Dated and mailed November 9, 2009
weihbje : 175 : 5 ND ? 2.13

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The applicant asserts in his petition for commission review the administrative law judge erred in determining the respondent was the applicant's employee at the time of the work incident in December 2004, and therefore the applicant is liable to respondent and the fund for the Worker's Compensation benefits the respondent is entitled to pursuant to Wis. Ch. 102. The applicant asserts the administrative law judge should have found in his favor. The applicant states that if the respondent was not a business owner, he should not have been cashing checks written out to Jeremy Weihbrecht Construction for six months. However, the administrative law judge appropriately noted that while it may be true the respondent had his own remodeling and home repair business, and occasionally worked for his own customers when not working for the applicant, the applicant failed to prove that on the day of the accident, the respondent met all nine of the conditions listed in Wis. Stat. § 102.07(8)(b) to be classified an excluded independent contractor.

The applicant admitted in his testimony that he had to oversee the quality of the respondent's work. The applicant testified that he would control the quality of the respondent's work, how he performed the work and if the applicant wasn't present, the general contractor might confront the respondent if something was not done correctly. The applicant admitted he supplied the respondent with ladders, scaffolding and an air compressor.

The evidence does not indicate the respondent's success or failure was dependant on the relationship of business receipts to expenditures, but rather his success was dependant upon getting out of bed in the morning and going to work. He was compensated by the hour on the Yahara job and he had no expenditures to offset his wages. The evidence does not indicate the respondent had a federal employer identification number, and it was not established that the respondent filed business or self-employment income tax returns with the Federal Internal Revenue Service for the year 2003.

Also, there was no evidence the respondent submitted a bid for the work he performed on the Yahara job where he was injured. A review of the evidence in the record did not establish the respondent met the nine conditions listed in Wis. Stat. § 102.07(8)(b) to be classified an excluded independent contractor. Therefore, the administrative law judge appropriately found that at the time of the work incident in December 2004, the respondent was the applicant's employee and the applicant was liable to respondent and the fund for the Worker's Compensation benefits applicable under Ch. 102 of Wisconsin Statutes. Therefore, the administrative law judge appropriately found the applicant shall pay respondent permanent partial disability benefits for five weeks payable at the rate of $232 per week, for a total of $1,160, subject to a Social Security offset if one exists; and in the event the fund pays or has paid the aforementioned award, the fund shall be entitled to reimbursement from the applicant.

cc: Attorney Michael H. Gillick
Attorney April Lee Kelbley

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