State of Wisconsin
Labor and Industry
Review Commission
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Worker's Compensation
Decision[1] |
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Employee-Applicant |
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Employer |
Dated and Mailed: |
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Insurer |
March
16, 2018 |
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Claim
No.2015-018063 |
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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.
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By the Commission: |
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/s/ |
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Georgia E. Maxwell, Chairperson |
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Laurie R. McCallum, Commissioner |
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David B. Falstad, Commissioner |
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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
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:
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]
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.
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.
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]
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.
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cc: |
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).