CHAD MENTOR, Applicant

PB DESIGN BUILD CO INC, 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
mentoch : 175 : 5 ND6 2.14

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

PB Design Build Company as respondent claims in its petition for commission review the administrative law judge erred in determining Mr. Mentor was not an independent contractor pursuant to Wis. Stat. § 102.07(8)(b), and PB Design is an employer subject to the Act pursuant to Wis. Stat. § 102.04(1)(b)2, and that
Mr. Mentor was an employee for PB Design paid more than $500 in wages in a calendar quarter for services performed in this state at the time of his work injury on March 3, 2009. PB Design contends Mr. Mentor was actually an employee of Perfect Pitch operated by Mr. Morris on March 3, 2009. However, the applicant testified he was still working, performing demolition work for PB Design at the time of his injury on March 3, 2009, and was not working for Mr. Morris or Perfect Pitch at that time. Mr. Morris testified the applicant was to begin working for him doing framing work after he completed the demolition work for PB Design on March 3, 2009, but had not yet begun to perform this framing work.

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, credited the applicant's testimony as well as the testimony from Mr. Morris. 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. The evidence indicates the applicant was working for PB Design on March 3, 2009, when he suffered the work injury which crushed the middle and ring fingers on his right hand while using a hammer drill. The applicant testified the hammer drill was supplied by Mr. Beilman, the owner of PB Design. In addition, the evidence indicated Mr. Beilman directed the work the applicant performed in demolition at the Summit Avenue address in Shorewood, Wisconsin.

Mr. Beilman contended at the hearing that the structure at 3508 North Summit Avenue, Shorewood, Wisconsin, was his personal residence, and not related to his business and expenses for remodeling and repair on March 3, 2009. However, the evidence indicates the PB Design sign was posted outside of the residence on Summit Avenue in Shorewood, Wisconsin at the time of the incident on March 3, 2009. The administrative law judge appropriately noted that at the time of the injury, the Beilman's lived in an apartment in Mequon, and Mr. Mentor testified there was no indicia of anyone living at Summit Avenue address at the time of the incident in March 2009. The evidence also indicates the Beilman's have purchased similar homes in Milwaukee County and remodeled them, and then sold them for significant capital gain as part of a regular course of business.

Mr. Beilman contended the applicant was paid $400 for his work in demolition at the Summit Avenue address. However, Mr. Mentor submitted a notarized signed statement dated May 11, 2009, which indicated in the week of February 16, 2009, to the February 19, 2009, he worked a total of 24 hours, and from February 20, 2009 to February 26, 2009, he worked 13 hours, and from February 27, 2009 to March 3, 2009, he worked 5.5 hours at $20 per hour. The evidence therefore indicates the applicant was paid wages in excess of $500 or more in a calendar quarter for services performed for PB Design and Mr. Beilman. The evidence did not indicate Mr. Mentor was an independent contractor. Mr. Mentor did not fulfill all of the eight components required by Wis. Stat. § 102.07(8)(b) to be an independent contractor. Although Mr. Mentor possessed a federal identification number in 2009, he did not use the federal identification number on the project he performed for PB Design.

Based on Mr. Mentor's testimony, as well as Mr. Morris' testimony, and given the evidence of the applicant's wages paid for his work from February 19, 2009 to
March 3, 2009, and given the fact Mr. Mentor did not meet all of the eight requirements for an independent contractor pursuant to Wis. Stat. § 102.07(8)(b), and given the evidence of the work the applicant performed for PB Design at 3508 North Summit Avenue, Shorewood, Wisconsin during the normal course of business for PB Design, the evidence was sufficient to establish that Mr. Mentor was an employee of PB Design at the time of the work injury on March 3, 2009, and was injured during the course of his employment while performing services arising out of and in the course of that employment. The evidence indicates that Patrick Beilman, doing business as PB Design, is subject to the Act within the meaning of Wis. Stat. § 102.04(1)(b)2 and that Mr. Mentor was his employee, and therefore entitled to benefits for his work injury pursuant to the Act, and Patrick Beilman and PB Design are liable for the benefits paid by the Uninsured Employer's Fund on behalf of the applicant, Mr. Mentor, in the amount of $18,771.21. Jurisdiction was appropriately reserved.

cc: Attorney Kurt Anderson
Attorney Angela McKenzie

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2011/01/18