STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DAVID L LOPEZ, Applicant

CAD CAM CONNECTION INC, Employer

VEHICLE TOWING, Employer

FIREMANS FUND INSURANCE CO, Insurer

BOSTON OLD COLONY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94017156

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations 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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed February 29, 1996
lopezda.wsd : 101 : 0  ND § 2.12

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

Employer Vehicle Towing, Inc., asserts that the ALJ erred in concluding that Vehicle Towing, rather than Cad/Cam Connection, Inc., was the applicant's employer. In support of its position, Vehicle Towing points out that Cad/Cam admitted it was doing business with Vehicle Towing in the capacity of temporary help agency, that Cad/Cam itself used a third entity as a payroll service, that Cad/Cam's officer admitted other individuals were employed at Vehicle Towing through Cad/Cam, that Cad/Cam's worker's compensation insurer understood Cad/Cam placed computer-trained office workers (not just technically trained individuals), and that the applicant identified Cad/Cam as the employer in a wage claim proceeding.

Nonetheless, after examining the record, the commission is convinced that the record establishes that Vehicle Towing was the applicant's employer and Cad/Cam was not. Most significant is the fact that Vehicle Towing hired the applicant, not Cad/Cam. In fact, Vehicle Towing asked its current employes to recruit new workers, and the applicant was hired in that manner.

The officers of both Cad/Cam and Vehicle Towing were straightforward in admitting that the two companies had worked out an accommodation or deal to help Vehicle Towing comply with Milwaukee's disadvantaged business enterprise laws. Under the deal, Vehicle Towing hired most but not all of the affected workers who were then considered Cad/Cam employes, and Cad/Cam charged Vehicle Towing less than its normal placement fee. As stated above, the applicant was hired by Vehicle Towing, not Cad/Cam, as a part of this process. He had no contact with Cad/Cam other than to bring a wage claim.

The record also indicates that the applicant had skills (his ability to speak Spanish) more valued by Vehicle Towing than Cad/Cam, and lacked the more technical skills Cad/Cam was most concerned with. From this, one might infer that Cad/Cam neither would have hired the applicant itself in the first instance, could have fired him or placed him elsewhere while he worked for Vehicle Towing, nor would have continued to employ the applicant if his services were no longer required by Vehicle Towing. At the very least, the circumstances of the applicant's hire highlights the nature of the deal between Vehicle Towing and Cad/Cam.

In short, the fact that the applicant accepted Vehicle Towing's statement that Cad/Cam was his employer is not dispositive. Nor is Cad/Cam's use of a third entity as a payroll agent, especially if that payroll agent itself was not a disadvantaged business enterprise. Any inference which could be drawn from these facts is overcome by the primary purpose of the deal between Vehicle Towing and Cad/Cam: to allow Vehicle Towing to hire the workers it wished, but make Cad/Cam appear to be the employer. Had the applicant actually been placed by Cad/Cam, or even had some contact with it prior to his work injury other than the wage claim, Cad/Cam might well have been the "employer" even though Vehicle Towing controlled the day-to-day details of the work. However, the facts in this case do not establish that the applicant's relationship with Cad/Cam was that of employe and temporary help agency, as contemplated in sec. 102.01 (f), Stats., and DILHR Workers Compensation Act of Wisconsin with Amendments to May 4, 1994, publication WKC-1-P (R.07/95), endnote 3.

cc: ATTORNEY E PATRICK CRANLEY
JACOBSON & HUPY SC

ATTORNEY JULIE J DARNIEDER
DARNIEDER WEST & DAVIS

ATTORNEY WILLIAM R SACHSE JR
PETERSON JOHNSON & MURRAY SC

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