STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
PAULINE L HARPER, Applicant
NORDIC HILLS INC, Employer
FIREMANS FUND INS CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1998015452
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.
ORDER
The findings and order of the administrative law judge are affirmed.
Dated and mailed December 8, 1999
harpepa.wsd : 185 : 1 ND § 2.17 § 8.19
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
In their petition, respondents have made four arguments for overturning the administrative law judge's decision that the applicant was an employe of Nordic Hills, Inc., (hereinafter Nordic). The commission has considered and rejected each of these arguments.
First, respondents assert that the applicant's claim is barred by the Supremacy Clause of the United States Constitution, because 37 U.S.C. 1503, which describes the purpose of the federally charted National Ski Patrol (hereinafter NSP), provides that one such purpose is to promote volunteer local ski patrols. The argument continues that adherence to the federal code section preempts state law and precludes Wisconsin's Worker's Compensation Act from including in the definition of employe any NSP member acting as a ski patroller.
The NSP is an association of ski patrollers who may perform their services on a volunteer or a paid basis (see Applicant's Exhibit G, pages 25-26). While 36 U.S.C. 1501, et seq., provides that one purpose of the NSP is to promote volunteer local ski patrols, there is nothing in the federal law which requires that every NSP member always perform his/her ski patrol services on a volunteer basis. The determination that the applicant performed her services for Nordic as an employe under Wisconsin's Worker's Compensation Act does not conflict with the federal law.
Second, respondents argue that there was no contract of hire between Nordic and the applicant. However, as the administrative law judge pointed out in his decision, the ski patrol director acted as Nordic's agent in establishing a contract of hire with the applicant. He required the applicant to complete a written questionnaire regarding her qualifications, and this was completed on the employer's premises. The contract of hire had definite terms, in that the applicant and the ski patrol director both understood that the applicant was committing herself to scheduled ski patrols throughout the employer's skiing season, in return for season ski passes for herself and her daughter, free beverages, discounts on food, and discount vouchers on ski equipment for herself and her daughter. Nordic has attempted to characterize ski patrollers such as the applicant as volunteers. But the fact is that Nordic was well aware of the services the ski patroller performed for it, Nordic depended on these services, and Nordic agreed, through the ski patrol director, to provide specific compensation for such services.
Respondents noted that a Michigan Court of Appeals case cited by the administrative law judge in support of his findings was subsequently overruled by the Michigan Supreme Court in Lawrence J. Hoste v. Shanty Creek Management, Inc., et. al., 459 Mich. 561, 592 N.W.2d 360 (1999). In Hoste, the ski patroller received items of compensation for his services which were almost identical to those received by the applicant. The Hoste decision essentially held that these items were not intended as wages because they were not substantial enough to induce a reasonable person to forfeit his common-law tort rights against the ski resort. There is no law in Wisconsin which makes the determination of whether items of value qualify as wages dependent on a value judgment concerning whether those items were substantial enough to have induced the forfeiture of common-law tort rights. The commission is not inclined to adopt such a test.
Third, respondents argue that even assuming there was an implied contract of hire, Nordic did not control the details of the applicant's ski patrolling. The commission has little to add to the administrative law judge's convincing findings rebutting this argument as set forth in his decision. Nordic delegated its control over the applicant to the ski patrol director, but the credible inference from Nordic's manager's testimony is that Nordic was well aware of the services the applicant and the other ski patrollers performed for it. The Joint Statement of Understanding between the NSP and the National Ski Areas Association, of which Nordic was a member, as well as the fact that all the applicant's services were performed on Nordic's premises in the course of its ski resort business, lead to the inference that Nordic retained the right to control the details of her work.
Finally, respondents asserted that the administrative law judge lacked authority to schedule a second hearing for determination of whether the applicant's failure to attend the first hearing was excusable; and if it was determined to be excusable, for the submission of additional evidence on the merits. Authority to schedule hearings and to obtain evidence necessary for the effective administration of the Act rests with the Worker's Compensation Division through the exercise of discretion by its administrative law judges. See Wis. Stat. § 102.18, as well as Wis. Admin. Code ch. DWD 80.12. See also, Verhaagh v. LIRC, 204 Wis. 2d 154, 160, 554 N.W. 2d 678 (Ct. App. 1996).
A non-appearing party may be entitled to a further hearing if his or her failure to appear was the result of excusable neglect. Auclair v. LIRC and Friendly Village, Inc., Case No. 83-836 (Ct. App., May 22, 1984), unpublished decision.
The administrative law judge acted reasonably, and well within his discretion in scheduling the second hearing.
cc: ATTORNEY TONY WELHOUSE
WELHOUSE LAW OFFICE
ATTORNEY MICHAEL D STOTLER
BREN PRZYBECK & STOTLER
Pamela I Anderson, Commissioner (dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. I am troubled by the majority's willingness to find that the National Ski Patrol is an agent for the employer and has established a contract of hire. 36 U.S.C. 1501 seems to envision a volunteer ski patrol. Also the majority uses the Joint Statement of Understanding between NSP and the National Ski Area Association as a way for Nordic to control the details of the employe's work.
I find the ski passes, free beverages and discounts on food and ski equipment to be insufficient to show that the applicant worked for pay. The free beverages and discounts on food allowed the applicant to spend more time on the ski slope because she did not have to go elsewhere for food and drink. A free ski pass to the applicant kept in her shape to do the duties of the ski patrol. Giving the applicant's daughter a ski pass allowed the applicant to ski and know where her daughter was.
There is a down side to the employer in finding that the applicant was not an employe. The employer may be liable for the applicant's injuries in tort and at higher cost than if the applicant was covered by workers compensation.
While Wisconsin workers compensation law is not bound by decisions in other jurisdictions, I do find Lawrence j. Hoste v. Shanty Creek Management, Inc., et. al. to be convincing. For these reasons, I would reverse and find that the applicant was not an employe for workers compensation purposes.
____________________________
Pamela I. Anderson, Commissioner
Appealed to Circuit Court. Reversed August 4, 2000. Appealed to Court of Appeals. Circuit Court decision reversed, in unpublished decision, February 1, 2001.
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