State of Wisconsin

Labor and Industry Review Commission

 

 

Wade Opperman

Worker’s Compensation Decision[1]

Employee-Applicant

 

 

Let Mikey Do It, LLC

 

Employer

Dated and Mailed:

 

 

Uninsured Employers Fund

Insurer

March 16, 2018

 

 

Claim No.2015-018063

 

 

 

 

Order

The commission reverses the administrative law judge decision. Accordingly, the applicant was not an employee of the employer under the Worker’s Compensation Act on the date of the alleged injury, and the employer is not liable for any compensation to which the applicant is entitled under the Worker’s Compensation Act as a result of the injury alleged on May 13, 2015.

 

 

By the Commission:

 

 

/s/

 

Georgia E. Maxwell, Chairperson

 

 

 

 

 

/s/

 

Laurie R. McCallum, Commissioner

 

 

 

 

/s/

 

David B. Falstad, Commissioner

 

 

 

 

 

 

Procedural Posture

On June 5, 2015, the applicant filed a claim for benefits from the Uninsured Employers Fund (UEF) for an injury allegedly occurring on May 13, 2015. The employer conceded that on the date of the alleged injury, the employer was an employer subject to the Worker’s Compensation Act, but did not have worker’s compensation insurance coverage. The UEF determined that the applicant was the employee of the employer and paid medical expenses and indemnity.  The employer filed a reverse hearing application claiming there was no employer-employee relationship because the applicant was never hired.

 

An administrative law judge for the Department of Administration, Division of Hearings and Appeals, Office of Worker’s Compensation Hearings, heard the matter on January 23, 2017, and closed the record on April 15, 2017. The administrative law judge issued a decision on July 13, 2017, and the employer and its insurer (collectively, the respondent) filed a timely petition for review. At issue is whether the applicant was an employee of the employer on the date of injury.

 

The commission has considered the petition and the positions of the parties, and has independently reviewed the evidence. Based on its review, the commission reverses the decision of the administrative law judge and makes the following:

 

Findings of Fact and Conclusions of Law

  1. Michael Beich, the owner of Let Mikey Do It, started the handyman business in about 2006. About 50% of the business is insulation. He finds his laborers with an ad on Craigslist and he generally has two laborers. He indicates the wage rate is $15 to $20 per hour. He looks for applicants with knowledge in electrical, plumbing, and drywall, and with a clean driving record. People can email or call him. When they call, he asks how big they are because the job would be difficult for a larger person. If they meet that criterion, he has them come over for a “meet and greet” at his house.

 

  1. At the meet and greet, Beich tells them about the business. Previously, he told them he would give them a 1099 at the end of the year. He explains what they do with air sealing, the insulation, and the bath fans, and he questions them about their knowledge base. The process takes about an hour.

 

  1. The applicant contacted Beich by telephone. They set up a time to meet in Portage because the applicant lives in Baraboo. Due to unforeseen circumstances, they were not able to meet that week. They then had a further communication and set up a meet and greet at Beich’s house.

 

  1. The applicant and Beich met at Beich’s house on Friday, May 8, 2015. At the time they met, there was no agreement as to what the employer would pay the applicant. Beich paid based on experience and did not know what the applicant knew yet and could not yet determine what an appropriate wage would be. Beich did not provide the applicant with a job application or W-4 form to fill out.

 

  1. Beich told the applicant that they had an area of air sealing that needed to be addressed at a project house in Portage. He wanted the applicant to go along because the applicant lives in Baraboo and Portage is a shorter drive for him than Madison. Beich communicated to the applicant that he was to shadow Chris Jacobs (Jacobs). Beich thought it was important for the applicant to see the insulation because it is the majority of the employer’s work.

 

  1. Jacobs first met the applicant at Beich’s house early in the morning on Friday, May 8. He observed that Beich did the same thing with the applicant that he had done with Jacobs. Beich explained the business and asked a few questions. Beich asked the applicant if he would want to come out to the site and see what they do firsthand so he could get a grasp of it. The “spiel” was fairly routine. Jacobs had observed several similar spiels.

 

  1. The “spiel” is a meet and greet where Beich explains the type of work and goes into more depth on the air sealing. Beich then asks the candidates some basic questions to get an idea of their knowledge to get a baseline. If he thinks they might be interested, Beich asks if they would be ok shadowing for a day.

 

  1. Beich did not ask the applicant to fill out a job application. Jacobs was involved in the hiring of two other individuals. Neither one completed a job application or W-4s. The other individuals were also hired as sole proprietors. When Jacobs was hired he did not fill out a W-4 because he was considered a sole proprietor.

 

  1. Jacobs responded to Beich’s Craigslist ad for a handyman that indicated the compensation would be $15 to $20 per hour, depending on experience. When he contacted Beich, they talked briefly on the phone and then set up a time to meet at Beich’s house. Beich asked him questions to get an idea of his knowledge base and who he was as a person. Beich went over how the company runs and explained that pay is done weekly, but they did not discuss a rate because Beich wanted to have him go out and meet on a site and see if he was interested in doing the work. At the initial meeting, Jacobs did not think he was hired. After shadowing another worker, Jacobs met with Beich the next day and Beich asked if he was interested. Jacobs indicated that he would like the job. He believed he started work that day.

 

  1. Jacobs no longer works for the employer. He worked for the employer for a little over a year and a half. At the time of the applicant’s injury, he had worked for the employer for about 8 months. Until January 2016, Jacobs worked as a sole proprietor for the employer. He started at $17 per hour. He got two raises, and made $19 per hour when he left.

 

 

  1. The applicant accompanied Jacobs to two job sites on Monday, May 11, 2015. The applicant did not perform any work at the sites. After Monday, Jacobs indicated to Beich that the applicant showed up, was on time, and was clean and well dressed. He did not say anything about any work done.

 

  1. The applicant had no involvement with the employer on Tuesday, May 12, 2015. Jacobs worked that day.

 

  1. On Wednesday, May 13, the applicant accompanied Jacobs to a site in Portage where Jacobs had to fix spray foam insulation. The employer had previously done an air sealing job and needed to fix missed air seeps with spray foam in the kitchen. Jacobs did not need to move cellulose insulation in the attic to correct the air seeps, but did so to allow the applicant to view the dusty working conditions of the job. The employer did not provide the applicant with training on the operation of the spray foam machine, which takes about a week.

 

  1. It took Jacobs about 30 seconds to open the hatch to the attic to show the applicant the space, and about 2 minutes to close it up and seal it. The applicant wore a mask, gloves, and a tie-back suit to avoid getting dusty when checking out the attic.

 

  1. Jacobs used a ladder provided by the owners of the house to access the ceiling in the kitchen to spray foam insulation. Jacobs moved the foam spraying machine into the house on its casters by himself. He did not ask the applicant to assist him in any way. At one point the applicant rolled out a tarp, but Jacobs did not ask him to do it.

 

  1. After Jacobs sprayed in the foam, he told the applicant to watch it expand so he could see how it worked. The applicant did not need to stand on the ladder to watch the foam expand. Jacobs then went to the attic to tape and seal off the hatch that he had opened in the attic.

 

  1. While Jacobs was upstairs, he heard a “small thud” and thought one of the ceiling tiles had fallen down. He went downstairs to investigate and found the applicant on the floor with his head resting against the back of the refrigerator with his leg through the first rung of the ladder. The ladder was completely collapsed and “laying flat next to him.” The A-frame supports in the middle that Jacobs had locked in were folded up.

 

  1. The kitchen was small, with a walkable area of about 3 x 8 feet. Jacobs thought that the way the ladder was on the floor was unusual. He thought that if the ladder had fallen that way, it would have hit all the dishes in the sink. He called an ambulance.

 

  1. The applicant did not assist Jacobs with moving the foam lines when he was installing the foam insulation. The applicant did not bring Jacobs tools and Jacobs did not ever ask the applicant to do anything but watch. The applicant did not drive the company truck.

 

  1. In the past, other candidates had shadowed with Jacobs prior to being hired. One shadowed for one day; and one shadowed for two days. Jacobs had shadowed someone for one day. When he did so, he did not help out, but he asked a lot of questions. He was paid for the shadowing time after Beich offered him the job and he accepted. He never had anyone shadow him that was not accepted for employment.

 

  1. If Beich had decided to hire the applicant, he would have been paid for the hours spent shadowing Jacobs.

 

  1. Jacobs does not know Beich outside of work, and does not socialize with him.

 

  1. When the applicant emailed Beich asking to be paid for the hours he worked, Beich’s only response was “really?”

 

  1. In response to an email from the applicant requesting information about worker’s compensation insurance, Beich’s wife, Julie, sent an email to the applicant indicating that he had been hired as an independent contractor, so there was no insurance. Julie is not Beich’s business partner.

 

  1. The applicant (and the UEF that stands in his shoes) has the burden to prove beyond a legitimate doubt all the facts essential to the recovery of compensation.

 

  1. There was no implied contract of hire between the employer and the applicant.

 

  1. The applicant is not credible that he filled out a job application and W-4 for the employer, or that he performed any services for the employer.

 

  1. The applicant was in a pre-employment observation period and was not an employee of the employer at the time of the injury.

 

  1. There was no employer-employee relationship between the employer and the applicant.

 

  1. The employer is not liable for any compensation to which the applicant is entitled under the Worker’s Compensation Act as a result of the injury alleged on May 13, 2015.

 


Memorandum Opinion

 

Burden of Proof

The UEF argued before the administrative law judge that since the employer was the “applicant” by filing a reverse hearing application, the employer should have the burden to prove that Mr. Opperman was not an employee. The administrative law judge found that Mr. Opperman was the applicant and had the burden of proof. In answer to the petition, the UEF asserted that the administrative law judge’s decision should be affirmed in all respects, which would include the conclusion as to who has the burden of proof. In its brief, however, the UEF asserted that it does not have the burden of proof, and indicated that since the administrative law judge did not make specific findings or conclusions regarding this question, the UEF’s answer was only regarding the issue of whether the applicant was the employer’s employee. Nevertheless, the UEF argues that Mr. Opperman met his burden of proof. The employer argues the burden should be on Mr. Opperman and the UEF.

 

The UEF’s position is not entirely clear, but its semantic argument that the employer was the “applicant” for purposes of the burden of proof because it filed the reverse hearing application is unconvincing. The burden of proof remains on the worker (and the UEF which stands in his shoes) who seeks to receive benefits under the Worker’s Compensation Act to prove the facts essential to recovery of compensation.

 

It is true that the employer filed a reverse hearing application in this case, but it is still Mr. Opperman who is seeking worker’s compensation benefits, and the UEF seeking to collect from the employer for those benefits. Mr. Opperman filed the UEF claim form claiming worker’s compensation benefits and signed that form where it indicates “Applicant’s Signature.” That form also refers to the person filing the form as the “applicant.” It states, for instance, “Some form of documentation of the applicant’s employment by the employer identified on this claim form is required when filing this form.” Also, it says, “I have attached documentation (a copy of a check stub, W-2 form, payroll check, wage statement or other similar employment information) of the applicant’s employment by the employer identified on this claim form.” Mr. Opperman is clearly the “applicant” seeking worker’s compensation benefits. The UEF found that he was an employee and is defending that determination against the employer’s challenge, but it does not change the fact that Mr. Opperman is the applicant for worker’s compensation benefits and the UEF seeks recognition that an employer-employee relationship existed.[2] The commission will use the term “applicant” to refer to Mr. Opperman.

 

An applicant has the burden to prove beyond a legitimate doubt all the facts essential to the recovery of compensation.[3] Older worker’s compensation cases held that the party seeking to defeat worker’s compensation bore the burden to prove facts supporting its position; however, more recently the supreme court has disavowed this declaration and has ruled that an applicant has the burden to prove that he or she is an employee.[4] The applicant, and the UEF here standing in his shoes, have the burden to show that an employer-employee relationship existed between the applicant and the employer.

 

Credibility

The administrative law judge implicitly found the applicant to be credible by finding facts that the applicant performed services for the employer. The commission disagrees that the applicant is credible.[5]

 

Although the applicant testified that he provided Beich with a completed job application and a W-4 form, which would be strong evidence of an employer-employee relationship, that evidence is not credible. Both Beich and Jacobs credibly testified that the applicant was never provided with these forms. It makes no sense that Beich would require workers that he treated as independent contractors to fill out a job application and a W-4. Jacobs, who is no longer employed by the employer and does not know Beich socially, had no reason to lie and is more credible. According to Jacobs, Beich never gave the applicant those forms, he himself had never filled out a job application, and none of the other workers he had observed Beich meet with had ever done so. It also makes no sense that someone would think they were hired if an employer gave them a job application, as the applicant testified.

 

The job application is also internally inconsistent, and inconsistent with the applicant’s testimony. The applicant testified that he got the application from Beich on Friday, May 8; filled it out Saturday, May 9; and turned it in on Monday, May 11, when he started work. He testified that he was not working at the time he contacted Beich. Though the applicant wrote “no” on the first page of the application whether he was employed now, the applicant listed on the second page of the application that he was working at North Star from November of 2013 to “present” and his reason for leaving that employment was “left for this position.” He also indicated on the form that the date he could start working was May 12, 2015, however, the Monday he alleged that he started with the employer was May 11.[6] Rather tellingly, the UEF avoids any mention of the job application and W-4 form, but argues that the applicant was hired as an independent contractor.

 

The commission finds Beich and Jacobs credible that Beich did not give the applicant a job application and W-4 to fill out. This means that the applicant fabricated the evidence of the job application and W-4. The fact that he fabricated evidence calls into question the applicant’s entire testimony.

 

The applicant’s credibility is suspect for more than just the job application and W-4. If the applicant had been hired to work 40 hours per week, as he testified, there is no explanation why he did not have any contact with the employer on Tuesday, May 12. The applicant testified that he was to be paid $20 per hour, but this would be more than Jacobs was paid, his supposed supervisor, which also does not make sense.

 

The work that the applicant says he did for the employer was also directly contradicted by Jacobs. Jacobs, who had done the job for months, testified that you never move the cellulose once it’s in, although he pushed some out of the way so the applicant could see. With Jacobs’ experience, he would have a better understanding of the insulation process, and the applicant was not credible that he was tasked with moving the cellulose around in the attic.

 

The commission finds that Beich and Jacobs are more credible that the applicant was there to shadow Jacobs and to see the type of work that the employer did. It makes sense that Beich would want potential workers to see the work and know that they understand what is done and how dusty it is before he would spend time training someone. If the applicant had been interested in the job after seeing what it involved and how dusty it was, Beich would have had further discussions with him about payment, how to record his hours, etc.[7]

 

Finally, the employer presented a WKC-16-B from Dr. Robert W. Graebner. Dr. Graebner examined the applicant and did a record review. His impressions were:

 

  1. Subjective report of headaches. Possible analgesic rebound headaches.
  2. Subject report of balance difficulties, with major inconsistencies noted during my observations suggesting a non-organic component to this symptom.
  3. Multiple personal problems and possible depression.
  4. If in fact Mr. Opperman had a concussion, I believe any true post-concussive syndrome would have resolved by now and that his continuing reports are non-organic in nature.

 

Although the medical conclusions about the alleged injury are not relevant to the employer-employee relationship issue, the doctor did note some things that also call into question the applicant’s credibility. During his examination, Dr. Graebner noted:

 

The gate is performed very slowly. Mr. Opperman carries a cane. He waddles a lot when he walks, tends to grope for means of support when available and takes small steps.

 

I did have him take some steps without a cane and he was able to do so, but indicated this would be difficult for him. He was able to take some steps on his toes and on his heels.

 

Mr. Opperman got dressed and after a final discussion he left the office. From the office window I watched as he exited the first floor of the building where the examination occurred, and his gait at this point was at a normal pace. He did not appear unsteady and was no longer using the cane as a means of support, but merely swinging it along as a hiker might carry a walking stick during a stretch of the hike where it was not really needed. He was able to climb into the passenger side of the car, driven by his mother, without difficulty.[8]

 

Taking into account all of the facts of the case, the applicant simply was not credible. The evidence provided by Beich and Jacobs was consistent and logical. Therefore, the commission has based its findings of fact on the testimony provided by Beich and Jacobs.

 

Employee-Employer Relationship Test

Under Wisconsin’s worker’s compensation statutes, an “employee” is “every person in the service of another under any contract of hire, express or implied,” except for domestic servants and persons whose employment is not in the course of any trade, business, profession or occupation of the employer. Wis. Stat. § 102.07(4)(a).[9] The Workers Compensation Act governs employers and their employees. “Clearly the Act does not impose worker’s compensation liability on an employer when the employer does not have an employer-employee relationship with the injured person. The Act governs employers and their employees. The foundation of the Workmen’s Compensation Act is the existence of an actual employer-employe[e] relationship.’”[10]

 

Generally, the Kress test[11] provides the primary test for determining whether the work done by a worker establishes an employer-employee relationship by examining the level of control over the work by an employer. In this case, however, where there is a dispute as to whether the worker was even hired, the commission first has to decide whether there was an express or implied contract of hire, and if the applicant was working “in the service of” the employer. The “presumption that a person is an employee and that a relationship of employer and employee exists arises only when the person ‘was rendering service for the alleged employer,’ and it is a presumption that can be rebutted.[12]

 

  1. Express or Implied contract

There was no express contract of hire, so the issue is whether there was an implied contract of hire between the parties. The essence of a contract implied in fact is that it arises from an agreement circumstantially proved.[13] Like an express contract, an implied contract requires the element of a mutual meeting of the minds and of intention to contract; it is established by proof of circumstances from which the intention is implied as a matter of fact.[14] Such circumstances may include the conduct of the parties.  But an implied contract must arise under circumstances which show a mutual intention to contract.[15] An implied contract may be established by the parties’ conduct if from such conduct it “can fairly be inferred that the parties mutually intended to agree on all the terms. WIS JI-CIVIL 3024,” and may rest entirely on conduct or partially on conduct and words expressed.[16]

 

In this case there was no objective meeting of the minds between the employer or Beich and the applicant that the applicant was hired. Their respective versions of the facts do not show any areas of agreement on this issue. Though an exact meeting of the minds is not required,[17] the credible facts demonstrate that the employer had not determined the applicant’s competence or a rate of pay. No terms were objectively finalized.

 

Additionally, the fact that the applicant did not have any contact with the employer on Tuesday suggests that the parties did not intend that he had been hired. According to the applicant, he was hired to work 40 hours per week, with some overtime, but if that is the case, it objectively makes no sense that he did not show up to do work on the second day. Even if the applicant thought he was hired, that was not consistent with his actions. Therefore, the commission finds that there was no express or implied contract of hire with the applicant.

 

  1. In the service of another

The commission also finds that the applicant was not in the service of the employer. “Service is, essentially, aiding the principal in the regular conduct of business.”[18] In this case, the applicant did nothing but lay or lift a tarp on his own initiative, and did no work at the job sites.[19] The applicant was observing, but was not “in the service of” the employer. Merely observing work performed by another before hire is not “in the service of” an employer.

 

  1. The Kress Test

Though the commission finds that there was no implied contract and the applicant was not in the service of the employer when he was injured, the commission addresses the Kress test to ensure a complete analysis. The Kress decision established the primary test for determining an employer-employee relationship: Does the alleged employer have a right to control the details of the work? In assessing the right to control, four secondary factors are considered: (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.”[20] This is a fact-specific test.[21] Even if an employer obtains some benefit from the person, it does not automatically mean there is an employer-employee relationship because a “benefit conferred does not necessarily point to an employee-employer relationship.”[22] Whether the worker provides a benefit to the alleged employer is not the dispositive factor in establishing an employer-employee relationship between the parties.[23]

 

In this case, there was no work by the applicant for the employer to control. According to Jacobs, the applicant moved the tarp to be helpful, and Jacobs did not ask him to do it.[24] For the secondary factors, the applicant (1) performed no work that would be controlled, and the employer had reached no decision on (2) what pay to offer the applicant. Where the evidence leaves in doubt whether there was an expectation of pay, this is different from the situation where the expectation of pay is uncertain in the sense of being conditional on the prosperity of the enterprise, which is sufficient to show a contract of hire.[25]  

 

The employer (3) supplied tools for its workers, but Jacobs testified that the applicant did no work. Finally, Beich (4) could terminate the relationship, but as far as he was concerned, he did not have a relationship with the applicant yet.

 

Even though the applicant would have been paid for the time he spent shadowing Jacobs if he had been hired, this is not sufficient to establish an employer-employee relationship. This is similar to cases in which the commission found there was no employer-employee relationship because the person only hoped to be paid eventually.[26] The word “hire” connotes payment of some kind, and wages are a necessary part of an employment relationship.[27]

 

  1. Pre-Hire Observation Periods

Though some control before being assigned to a job may indicate an employer-employee relationship,[28] it is clear that some employers use “trial periods” to determine whether to hire someone. In Haberland,[29] for example, the issue was whether an employment relationship existed during such a “trial period.” The respondent argued that the applicant was engaged in a trial period in which his performance was evaluated; the applicant’s performance was found unsatisfactory, and he was never actually hired. The employer acknowledged that the applicant worked on at least one machine that a customer had brought in for repair, and the employer charged the customer for the applicant’s labor. The commission found the applicant’s version of events more credible. The commission stated that an “employer telling a new employee he was being ‘tried out’ or in kind of trial period is not necessarily inconsistent with an employment relationship.” The number of days the applicant worked in the alleged ‘try-out’ status and whether other workers were employed in such a status were significant factors in that case. The employer allowed the applicant to work on machines on two days.

 

Haberland is easily distinguished from this case. In this case, the commission did not find the applicant credible; instead, the commission found that the applicant did no work for the employer except to observe the work of another. He did so for two days, which was consistent with the employer’s practice to have a one or two-day observation period, and was a short period of time. The employer explained that the two days were necessary to see the different types of work the employer did.[30]

 

The facts in this case are more like the situation in Day v. Village of Greendale.[31] In Day, an applicant was injured during a physical agility test before being hired. The agility test was voluntary and the commission found that the Kress test was not satisfied. Merely recording results for later compilation did not establish an employer-employee relationship. In this case, the applicant’s actions in shadowing Jacobs are more in the nature of this type of voluntary pre-employment screening before any work is done.

 

 

cc:

Atty. Mark A. Ringmuth

Atty. Joseph Danas

 

 



[1] Appeal Rights: See the yellow enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the following as defendants in the summons and the complaint:  the Labor and Industry Review Commission, and all other parties in the caption of this decision or order (the boxed section above). Appeal rights and answers to frequently asked questions about appealing a worker’s compensation decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.

[2] In Acuity Mut. Ins. Co. v. Olivas, 2007 WI 12, 298 Wis. 2d 640, 726 N.W.2d 258., the issue was whether an employer would be charged more insurance premiums, not an applicant’s eligibility for particular benefits. The supreme court concluded that Acuity Insurance bore the burden of proof that an employment relationship existed between the employer and the workers at issue. The court held that “disputes about employment relationships are common in worker’s compensation cases; the burden of proof should be on Acuity Insurance, which is attempting to obtain judicial recognition that the relationship exists.” Acuity, at ¶49-52.

[3] Leist v. LIRC,  183 Wis. 2d 450, 457, 515 N.W.2d 268 (1994).  See also Scholz v. Indus. Comm’n, 267 Wis. 31, 40, 64 N.W.2d 204 (1954)(“In order for an applicant employee to establish a valid claim for workmen’s compensation benefits against an alleged employer or the latter’s insurance carrier, the employee has the burden of establishing that he was the employee of such alleged employer at the time of injury. Sec. 102.03(1)(c). This must be so because otherwise the applicant could not establish, as required by such subsection, as a condition precedent to recovery of benefits, that ‘at the time of injury, the employee is performing service growing out of and incidental to his employment.’ We, therefore, have no issue presented of a so-called affirmative defense which is subject to waiver, but rather a failure of the applicant to prove an essential element of his case, vis., that he was the employee of [the employer] at the time of injury.”)

[4] Acuity, at ¶37.

[5] The commission consulted with the administrative law judge to obtain his impressions of the demeanor of the witnesses. Braun v. Indus. Comm’n, 36 Wis. 2d 48, 57, 153 N.W.2d 81 (1967); Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 282, 195 N.W.2d 656 (1972); Burton v. DILHR, 43 Wis. 2d 218, 223, 168 N.W.2d 196 (1969). The administrative law judge reported that “[o]n the threshold issue I was to decide, the testimony of Mr. Opperman was far more credible than the employers. [sic] I believed Mr. Opperman was not told he would not be paid for his time. It is incredible to conclude he was a gratuitous servant.” The administrative law judge’s qualification that the applicant was credible for the “threshold issue” suggests that he knew the applicant was not otherwise credible. The commission disagrees that the applicant’s credibility can be parsed in this manner. For the reasons stated, the commission finds that the applicant fabricated evidence and is, therefore, not a credible witness regarding the job application or his meeting with Beich. This also calls into question his entire testimony about any work he allegedly performed. The commission finds the consistent, logical, and plausible testimony of both Beich and Jacobs to be more credible. Jacobs, in particular, no longer worked for the employer and had no reason to lie about the events. According to the credible evidence, the applicant performed no work for the respondent and was not a “gratuitous servant.”

[6] The employer asks the commission to take administrative notice that the job application is a top Google search result in an inquiry for “employment application.” The employer argues that this fact supports the allegation that the purported written application for employment is something that was manufactured by the applicant only after the commencement of this litigation. It is not necessary to take administrative notice of this fact. The applicant is not credible based on the testimony and the internal inconsistencies in the application itself.

[7] The after-the-fact email from Beich’s wife to the applicant is not conclusive of their relationship. She testified that she was telling the applicant that he did not have insurance and misspoke that he had been hired as an independent contractor. Although she handled some paperwork for Beich, Beich testified that she did not have a role in the business.

[8] Ex. 1.

[9] Under the Worker’s Compensation Act, an “employee” does not include:

Wis. Stat. § 102.07(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.

[10] Acuity at ¶84, citing Wendlandt v. Indus. Comm’n, 256 Wis. 62, 67, 39 N.W.2d 854 (1949).

[11]Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175, 212 N.W.2d 97 (1973). Historically, Kress established the test to determine whether a worker was an employee or independent contractor. The Kress test was supplanted by Wis. Stat. § 102.07(8)(b) for deciding independent contractor status for purposes of the Worker’s Compensation Act; however, the test continues to have vitality in determining whether a person is an employee under Wis. Stat. § 102.07(4)(a). Acuity, at ¶87.

[12] Acuity at ¶34-35 (the court noted that the issue was whether workers were rendering services, so the presumption played no role in the case); see also Revels v. Indus. Comm’n, 36 Wis. 2d 395, 153 N.W.2d 637 (1967)(“We believe that any presumption that [Revels] was an employee of [the employer] disappeared when evidence to the contrary was introduced on cross-examination. The presumption that one injured in the service of another is an employee is a rebuttable presumption and ceases to have force and effect when evidence to the contrary is adduced.”). In this case, even if the applicant could claim a presumption that he was an employee because he performed some service for the employer, the evidence shows that the employer has rebutted this.

[13] Schaller v. Marine Nat’l Bank of Neenah, 131 Wis. 2d 389, 398, 388 N.W.2d 645 (Ct. App. 1986), citing Theuerkauf v. Sutton, 102 Wis. 2d 176, 184, 306 N.W.2d 651, 657 (1981). 

[14] Theuerkauf, at 183-84.

[15] Theuerkauf, at 185.

[16] Dickman v. Vollmer, 2007 WI App 141, ¶19, 303 Wis. 2d 241, 736 N.W.2d 202. In an unpublished court of appeals decision, the court also referenced the Wisconsin Jury Instructions to explain the elements of an implied contract. See Howland v. BG Prods., 2000 WI App 31, ¶19, 241 Wis. 2d 50, 622 N.W.2d 770 (unpublished)( “The definition of an agreement can be found in WI JI-Civil 3010:

For a contract to be binding, three things must concur: first, the offer; second, the acceptance; and third, the consideration.

 

For the parties to come to an agreement, it is necessary that there be a meeting of the minds of the parties upon the essential terms and conditions of the subject about which they are agreeing; that is, they must be in accord upon the essential terms and conditions. There must be mutual assent.

 

The language used and the conduct of the parties must be such as to disclose sufficiently the fact that the minds of the parties have met, or have been in accord, on all the terms of the agreement, or, in other words, disclose the fact that there has been a mutual assent. One party cannot make an agreement; both parties must, by their words or actions, assent to the agreement.

 

Wis JI-Civil 3024 specifically addresses the necessary elements of an implied contract:

 

An agreement may be established by the conduct of the parties without any words being expressed in writing or orally, if from such conduct it can fairly be inferred that the parties mutually intended to agree on all the terms. This type of agreement is known as an implied contract. An implied contract may rest partially on words expressed in connection with conduct or solely upon conduct.

[17] See Kernz v. J.L. French Corp., 2003 WI App 140, ¶20, 266 Wis. 2d 124, 667 N.W.2d 751 (“To constitute an acceptance and the creation of a contract there must be a meeting of the minds upon all essential terms thereof.” Todorovich v. Kinnickinnic Mut. Loan & Bldg. Ass’n, 238 Wis. 39, 42, 298 N.W. 226 (1941). However, it is well established that an “actual ‘meeting of the minds’ is not a prerequisite to an enforceable contract. See Management Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 180-181, 557 N.W.2d 67 (1996)(“Parties do not need to agree subjectively to the same interpretation at the time of contracting in order for there to be a mutual assent, because a literal ‘meeting of the minds’ is not required.’) Comment to Wis JI 3010 (“Parties do not need to agree subjectively to the same interpretation at the time of contracting in order for there to be a mutual assent because a literal meeting of the minds is not required.”) Rather, contract terms are usually ‘judged by an objective standard, looking to the express words the parties used in the contract.’ Management Computer Servs., 206 Wis. 2d at 181.”)

[18] Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 64, 330 N.W.2d 169 (1983).

[19] The UEF asserts in its brief that Jacobs admitted that Opperman did small tasks on all of the jobs. (UEF Brief, p. 5) This misstates the record. All of the references to the transcript cited by the UEF refer to Jacobs indicating that Opperman picked up a tarp, and not to other tasks.

[20] Acuity, at ¶88. In Kress, the issue was whether someone who agreed to drive a truck for a former employer in hopes of getting rehired was an employee at the time of the accident for worker’s compensation purposes. There was no express agreement between the parties by which Kottwitz had any legal duty obliging him to perform any services on behalf of Kress. There was no discussion as to employment, any contract of employment, contract for compensation or any of the general rights and duties of an employer-employee relationship. There was no duty on the part of Kottwitz to perform any acts on behalf of Kress other than to observe the limitations on the use of the truck. The court found that there was no basis in the evidentiary facts for implying an intention on the part of either Kress or Kottwitz to create a contract of employment even for one day. The arrangement was in the nature of a loan of a truck. Kress, at 182-83.

[21] Acuity, at ¶ 89.

[22] Kress, at 181.

[23] Lange v. DILHR, 40 Wis. 2d 618, 623, 162 N.W.2d 645 (1968)(“something more than an incidental benefit to the claimed employer must be found to link the asserted employer and asserted employe[e]”).

[24] Compare, e.g., Bailey v. Kae Development Corp., WC Claim No. 2003-018597 (LIRC, Oct. 25, 2010)(employer controlled the details of applicant’s work, furnished most of the equipment used to do the work and all of the material, and exercised the right to fire and hire workers; applicant performed services under employer’s direction on a regular basis, doing electrical and automotive repair, machine maintenance, construction work, and various other odd jobs. Employer’s testimony to the contrary lacked credibility. The commission did not accept the employer’s argument that the men worked in an independent affiliation trying to bid out a repair job when the applicant was injured.)

[25] See, e.g., Kaishian v. Crystal Ridge, WC Claim No. 2000-007962 (LIRC, Mar. 31, 2004), citing 3 Larson, Worker’s Compensation Law § 65.02[1] (LEXIS-NEXIS 2003).

[26] See, e.g., Marshall v. Marshall Floor Covering, WC Claim No. 1997-034850 (LIRC, Aug. 31, 1999)(applicant performed services for her husband’s business but never received any wages or paychecks. She anticipated being paid when the business became profitable. She understood she would have to work two years before being paid, but the company went bankrupt, so she ultimately worked for nothing. The commission found she was a volunteer when she was injured, and she had no realistic expectation of being paid for the services she performed. Citing Klusendorf Chevrolet Buick, Inc. v. LIRC, 110 Wis. 2d 328, 335, 328 N.W.2d 890 (Ct. App. 1982), the commission noted that an “unfulfilled hope” that applicant might one day cease to be a volunteer and become a paid employee is not a substitute for wages.)

[27]Klusendorf, at 335, citing 1C Larson, Workmen’s Compensation Law sec. 47.41 at 8-255-59 (1980)(former employee volunteered to drive a car to another city for Klusendorf in the hope he would be re-employed. No wages were ever discussed. After he was injured, the driver of the truck filed a worker’s compensation claim, alleging that his agreement to provide services was an implied employment relationship. The commission agreed, but the court of appeals reversed. The court found that wages are a necessary factor in an employment relationship, though wages need not be money).

[28] See, e.g., Labor Ready, Inc. v. LIRC, 2005 WI App 153, ¶11, 285 Wis. 2d 506, 702 N.W. 2d 27 (a temporary help worker was an employee where the employer exercised control before the temporary employee was assigned to a job: it provided a facility where the employee was to appear and wait; forms prepared by Labor Ready and signed by employee referred to the worker as an employee; the employee filed a W-4; the employee was paid by Labor Ready not a client.)

[29] Haberland v. Daves Small Engine LLC, WC Claim No. 2003-038852 (LIRC, Dec. 9, 2004)

[30]Similarly, two other decisions are distinguishable on the facts of whether any work was done as determined by the credibility of the witnesses. See Bailey v. Kae Dev. Corp., WC Claim No. 2003-018597 (LIRC, Oct. 25, 2010)(commission found that the applicant credibly testified that he performed services under the employer’s direction on a regular basis, doing electrical and automotive repair, machine maintenance, construction work, and various other odd jobs; and Justice v. Wilcox, WC Claim No. 2011-015600 (LIRC, Mar. 6, 2014)(applicant worked at three different locations for longer than a week, noting that “five or six days is a long time to expect any worker to perform services with no expectation of being paid.”).

[31]Day v. Village of Greendale, WC Claim No. 94-005719 (LIRC, May 18, 1995).