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

BONNIE JEAN MARSHALL, Applicant

MARSHALL FLOOR COVERING, Employer

SOCIETY INS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997034850

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, except that it makes the following modifications:

1. Delete the second paragraph of the ALJ's Findings of Fact.

ORDER

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

Dated and mailed August 31, 1999
marshal2.wmd : 101 : 7 ND § 2.17

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant's husband started a carpet-laying business (Marshall Floor) in the fall of 1994. The applicant performed services for the business as an office manager/bookkeeper/salesperson. She never received any wages or paychecks, and Marshall Floor did not file an IRS form W-2 for her.

The applicant testified that she anticipated being paid when the business became profitable. She also understood that she would have to work at least two years before she would be paid. It is not clear from the record whether she expected to be paid retroactively; the most reasonable inference is that she would not have been paid retroactively even if the business became profitable. Her husband testified that he and his wife were willing to sacrifice to get the business up and running. The applicant admitted she would have worked for nothing if it would have helped the business. Indeed, in the final analysis she did work for nothing, as Marshall Floor went bankrupt without paying her wages, and she did not file a claim for the wages in the bankruptcy proceeding at her husband's request.

In February 1995, the applicant set out from the Marshall Floor's place of business for a sales call, but changed her mind and decided to head home because of inclement weather. She alleges that she was injured in an accident during that trip. The issue upon which this case turns is whether the applicant an "employe" is entitled to worker's compensation under Wis. Stat. § 102.07.

The ALJ found the applicant was a volunteer, not an employe, citing several factors not reiterated here. He dismissed the claim. The applicant appealed individually disputing the factors cited by the ALJ. The applicant also argued that the reported cases which hold that a volunteer is not an employe deal with one- time provision of labor on a truly volunteer basis.

However, the commission is persuaded that the ALJ's decision, and the reasoning upon which it is based, is correct. The commission notes particularly Klusendorf Chevrolet-Buick, Inc., v. LIRC, 110 Wis. 2d 328 (Ct. App., 1982). In that case, the applicant (Klosterman) was a former employe of Klusendorf who 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, Klosterman filed for worker's compensation, claiming that his agreement to provide services for Klusendorf created an implied employment relationship. This commission agreed, and awarded compensation. The court of appeals reversed the commission.

In its reversal decision, the court of appeals expressly held that wages are a necessary factor if an employment relationship is to be found, though the wages need not be money. Klusendorf, at 110 Wis. 2d 334-35. The court expressly declined to accept a "benefit conferred" test, and infer wages. The court also concluded as a matter of law that there was no credible and substantial evidence to support the inference that the applicant expected wages. Id., at 110 Wis. 2d 336. The court, writing in reference to Klosterman's hope of re-employment, noted "[u]nfulfilled hope, even if communicated, does not give anything of value to a prospective employe."

This case is analytically similar. The commission cannot conclude the applicant had any realistic expectation of being paid for the services she performed for Marshall Floor. The unfulfilled hope that the applicant might one day cease being a volunteer and become a paid employe is not a substitute for wages. In other words, the implication of payment for services never arose because the circumstances negate the expectation of payment. Klusendorf, 110 Wis. 2d 336, note 2; 3 Larson's Workers Compensation Law, ch. 65.02 (MB 1999). The ALJ appropriately concluded the applicant was a volunteer, even though she provided services for her husband's business on a regular basis.

The commission also considered the applicant's argument that the insurer sold Marshall Floor a worker's compensation policy specifically to cover the applicant. The commission acknowledges that the applicant or Marshall Floor may have some type of estoppel claim against the insurer on that basis. However, the commission cannot base its decision on an equitable or promissory estoppel theory. As a statutorily-created body, the commission has only those powers which the statutes confer upon it, Topp v. LIRC, 133 Wis. 2d 422, 427-428 (Ct. App., 1986) and does not possess the power to work equity in contravention of a statute, South Side Roofing and Material Company v. Industrial Commission, 252 Wis. 403, 409 (1948).

The ALJ also found if the applicant had been a covered employe, she would have been providing services growing out of or incidental to employment when she was injured, as she was injured in a business vehicle. Because the commission concludes that this finding is only advisory or perhaps dicta, it has removed it from the ALJ's decision as affirmed.

cc: ATTORNEY MICHAEL J KIRSHLING
STELLPFLUG JANSSEN NELL & HAMMER SC

ATTORNEY RHONDA B DEVORKIN
OTJEN VAN ERT LIEB & WEIR SC

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