PETAR TOMIC, Applicant

BBS TRUCKING, 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 December 27, 2010
tomicpe . wsd : 101 : 1 ND6 2.12 

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

1. Posture.

The applicant, a truck driver, claims disability from a cervical spine injury that occurred while he was driving. The injury, itself, is not at issue at this point. What is at issue is whether BBS Trucking, a now dissolved company owned by Branislav Bojanic, was the applicant's employer.

The ALJ found that BBS Trucking was not the applicant's employer. He noted that the lease agreement signed by Bojanic expressly provided for payment to the drivers from IV Motion through contractor Bojanic. He noted that the agreement listed two tractors--presumably owned by BBS Trucking/Bojanic--and that the trailers supplied were rentals. He noted, too, that the lease agreement specifically stated that IV Motion would provide the worker's compensation insurance for the drivers.

The applicant appeals, arguing that the ALJ incorrectly determined that BBS Trucking was an independent contractor rather than an employer, and that the ALJ failed to follow the exclusive test in the statutes (Wis. Stat. § 102.07(8)(b) for determining the status of independent contractor; that BBS Trucking had the right to control the details of applicant's work as Bojanic paid him, directed him where to go to pick up the truck, and could "let drivers go;" and that BBS Trucking was an "employer" within the definition of Wis. Stat. § 102.04.

2. Discussion.

a. Bojanic/BBS Trucking as independent contractor.

The applicant's first argument suggests that the ALJ erred in determining that BBS Trucking was an independent contractor without considering the factors listed in Wis. Stat. § 102.07(8)(b). The applicant goes on to note that the court of appeals stated in Jarrett v. LIRC, 2000 WI App. 46, 233 Wis. 2d 174 16, that the statutory factors are the sole factors for determining whether "a worker is an independent contractor under the Act."

However, the ALJ did not actually find that BBS Trucking was an independent contractor, just that the lease agreement identified him as such. The applicant's brief acknowledges that, but suggests that since the ALJ "verified" or credited certain aspects of Bojanic's testimony, the ALJ must have shared Bojanic's belief he was an independent contractor vis--vis IV Motion. But the primary issue here is the applicant's relationship with Bojanic/BBS Trucking, not the relationship between Bojanic/BBS Trucking and IV Motion. The ALJ correctly did not make findings about whether Bojanic was an independent contractor excluded from the definition of "employee" under Wis. Stat. § 102.07(8)(b).

Second, Wis. Stat. § 102.07(8)(a) states that unless excluded by statute, all independent contractors are employees of employers to whom they provide service. Wisconsin Stat. § 102.07(8)(b) then sets out the factors identifying those independent contractors are excluded from coverage as employees. While Jarrett does state that that Wis. Stat. § 102.07(8)(b) provides the sole test, what it means is it provides the sole test for the type of independent contractors that are excluded from the definition of "employee." The statute does not purport to decide whether an independent contractor is an "employer" of other parties.

Third, whether Bojanic's relationship with IV Motion makes him the type of independent contractor excluded from coverage under the worker's compensation act is not the decisive issue, at least not at this point. The fact is Bojanic/BBS Trucking entered into a contract with IV Motion and is a contractor in some sense of the word. But being an independent contractor is not necessarily inconsistent the status of "employer" as the applicant's argument seems to suggest. Rather, what is critical here is whether there was an employer-employee relationship between Bojanic/BBS Trucking and the applicant.

b. Employer-employee relationship between Bojanic/BBS Trucking and the applicant.

On that point, the applicant correctly identifies the fundamental standards used in worker's compensation law to determine the existence of an employer-employee relationship as those set out in Kress Packaging Co. v. Kottwitz, 61 Wis. 2d 175, 182 (1973). Under Kress, the primary test for determining the existence of an employer-employee relationship is whether the alleged employer has a right to control the details of the work; among the secondary tests are: (1) direct evidence of the exercise of the right of control, (2) method of payment of compensation, (3) furnishing of equipment or tools for the performance of the work, and (4) right to fire or terminate the employment relationship. Kress, at 61 Wis. 2d 182.

In deciding this issue, it is noteworthy that the supreme court has "ruled that an applicant has the burden to prove that he or she is an employee." Acuity Mutual Ins. Co. v. Olivas, 2007 WI 12 [� 37], 298 Wis. 2d 640 37. The record establishes that Bojanic could not fire the applicant, though he could ask that the applicant not be assigned to BBS Trucking's trucks. Bojanic did not set the delivery route that the applicant drove; Bojanic/BBS Trucking just provided the trucks. While Bojanic paid the applicant, he did so from money he received from IV Motion under the lease agreement which instructed him to pay the drivers. The other terms of the lease agreement also supports the conclusion that IV Motion is the employer of the drivers. The drivers fill out an application with IV Motion at its premises. IV Motion provides the worker's compensation insurance. It has the right to hire and fire. It establishes the driver's code of conduct.

The applicant's own testimony is that he went to Chicago to sign papers, just as Bojanic and Dragan Rankovic testified, and that he received his instructions from his co-driver, the Petar Vusic. It is reasonable to conclude that the Petar Vusic was calling IV Motion every day, following the procedure set out in the lease agreement. The applicant does not, for example, say that Bojanic told him what to do or where to go on a daily basis.

Crediting the testimony of Bojanic and Rankovic, the ALJ correctly found that Bojanic/BBS Trucking was not the employer of the applicant. It is unnecessary, therefore, to address Bojanic/BBS Trucking potential status as employer under Wis. Stat. § 102.04 regarding other possible employees.

cc: Attorney David M. Turim
Attorney Angela McKenzie

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