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

EDDY TUCKER, Applicant

ACE WORLD WIDE MOVING & STORAGE, Employer

FREMONT INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999-057774

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 March 2, 2001.
tuckeed . wsd : 175 : 8   ND § 2.13  § 2.14

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer asserts in its petition for commission review that the administrative law judge erred in determining that the applicant was an employee and not an independent contractor exempted from coverage under the act pursuant to Wis. Stat. § 102.07(8)(b). The employer contends that the administrative law judge erroneously found that the applicant did not maintain a separate business with his own office, equipment, materials and other facilities. The employer points to the fact that the applicant admitted that he got his Department of Transportation logs and compliance documentation from the respondent in one to two week quantities, and that he turned documentation in daily, and therefore by inference the applicant retained the balance of the documentation either in his truck or at home. The employer contends that because the applicant did not have a mailing address for his truck, documentation regarding permits, licenses, taxes and truck payments must be sent to his home. The employer also states that the gas, oil, tires and parts necessary to operate his truck are also materials which are the applicant's responsibility and necessary to discharge his duties under the agreement.

Pursuant to Wis. Stat. § 102.07(8)(b) an independent contractor is not an employee of an employer for whom the independent contractor performs work or services if the independent contractor maintains a separate business with his or her own office, equipment, materials, and other facilities. The evidence did not indicate that the applicant maintained his own office and had other materials and facilities other then his truck. The applicant testified that he did not have any other employee's and did not have any business cards. The applicant did not have any business stationary and did not have a business telephone number and did not have any independent office space. The applicant was not listed as a business in the telephone directory. It was not established that he had any other facilities which he maintained. The fact that the applicant may have gotten some extra forms from the employer, which he kept to be completed at a later date, did not establish that he maintained or owned a separate business with his own office equipment, materials and other facilities. Therefore, since the applicant did not meet all of the conditions provided for under Wis. Stat. § 102.07(8)(b) it was established that the applicant was an employee for worker's compensation purposes. Therefore, the administrative law judge appropriately awarded the applicant disability benefits as well as medical expenses.

cc:
Attorney George Chaparas
Attorney Scott E. Wade

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