WALTER NEWLUN (DECD), Applicant

MENARD INC, Employer

RELIANCE NATIONAL INSURANCE CO, Insurer

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.

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

Dated and mailed October 29, 2002
newluwa . wsd : 175 : 8   ND § 2.13  § 6.1

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

The respondent contends in his petition for commission review the administrative law judge law judge erred in determining the deceased worker was an employee of the respondent and not an independent contractor. Wis. Stat. § 102.07(a)(b) provides that an independent contractor is not an employee of an employer for whom the independent contractor performs work or services if the independent contractor meets nine conditions. The parties agreed the deceased worker met eight of the conditions, and the only dispute was whether the deceased worker met condition number three, which provides that in order to be considered an independent contractor he must operate under contracts to perform specific services or work for a specific amounts of money, and under which the independent contractor controls the means of performing the services or work. The applicant was the sole proprietor of Fox Cities Trucking, and was under a contract of hire to deliver materials or merchandise for the respondent's retail customers. The deceased worker was involved in a fatal motor vehicle accident on November 10, 1997, while making a deliver for the respondent. The respondent states that in this case the deceased worker had the substantial responsibility as the exclusive hauler for deliveries ordered by customers of the respondent, and in the end analysis the control and responsibility outlined in the contract was in the hands of the deceased worker.

However, the evidence points to the fact the applicant did not control the means of performing the services or work. The respondent clearly had the authority to terminate the agreement unilaterally. The respondent not only had the written authority but exercised the authority to control the timing and nature of the deliveries, and even provided tools for the deceased worker's truck, and specified the color and age of the truck he should use. Under paragraph 11 of the agreement between the parties the deceased worker was required to pick up returned items as directed by the respondent at any time. The surviving spouse testified that on at least one occasion the respondent interfered with the delivery schedule required and required the deceased worker to pick up materials at another job on a Sunday afternoon, and at the same time he was scheduled to deliver drywall to another customer. The surviving spouse testified the deceased worker did not have control over schedule and deliveries, and if deliveries were more than two hours late he was penalized under the contract terms, and also the deceased worker could not refuse a delivery.

In addition, the written contact provided the respondent would supply a shingle elevator for loading shingles unto roof tops and reserved the right to supply fifth wheel trailers for the deceased worker's use. The contract also provided the deceased worker's truck should be no more than four years old and need to be in a good physical appearance with preferred colors of red or white. In addition, the respondent required the deliveries during store operating hours and that the deceased worker accommodate the customer's requested delivery times. Given the specific terms of the agreement and the actual practice in which the respondent controlled the time and nature of the delivery provided by the deceased worker, and given the respondent's unilateral right to terminate the relationship, the evidence established that the deceased worker was not an independent contractor but an employee under the Wisconsin Worker's Compensation Act at the time of his work injury and subsequent death. Therefore, it was not established that the deceased worker was an independent contractor since he did not meet all of the nine criteria provided in the statute.

The respondent also contended the deceased worker's surviving spouse was not entitled to death benefits pursuant to Wis. Stat. § 102.46. Under Wis. Stat. § 102.51(1)(a)1 a wife upon a husband with whom she is living at the time of his death is entitled to death benefits as a dependent. The respondent contended that the surviving spouse is not entitled to death benefits because she was not living with her husband at the time of his death.

The evidence indicates the deceased worker filed for divorce in June 1997, approximately five months before his death, and there was scheduled a hearing on the divorce petition on November 5, 1997, prior to his death. However, the divorce hearing was postponed at the deceased worker's request and rescheduled for December 1997. Whether a couple is living together within the meaning of the statute does not turn on time or distance but upon the nature and character of the absence in the intention of the parties respecting it. Intent is an important element in determining the nature of absence. Northwestern Iron Company v. Industrial Comm., 154 Wis. 97 102-103 (1913).

In Samp v. Industrial Comm., 240 Wis. 559 (1942) the Wisconsin supreme court held that living with does not mean dwelling with. Separated spouses may still be considered to be living with each other where there is no ill will or animosity between them, or any such definite termination of their mutual affection and desire to preserve their marital relations as to constitute in effect an actual severance of the marital relationship. Samp v. Industrial Comm., 240 Wis. 562.

In Women's Home Companion Reading Club v. Industrial Comm., 321 Wis. 371 (1939) the Wisconsin supreme court construed "living with" as no legal separation and no actual separation in the nature of an estrangement. In our current case, the deceased worker and his surviving spouse were still married at the time of his death. There was no court ordered legal separation and no divorce. The surviving spouse testified she and the deceased worker had a disagreement about his business venture with the employer, and as a result of the deceased worker decided to separate in January 1997 and subsequently filed a petition for divorce.

The surviving spouse testified in October 1997, the deceased worker brought back several personal items to the surviving spouse, and indicated he brought them back because he felt he and his wife were settling things and they were going to be getting back together. The surviving spouse testified the pivotal point in their relationship occurred at their sons wedding in August 1997, which they attended together, and talked about their separation and decided they were being stupid, and their family was falling apart and that things were not going the way they wanted them to. The surviving spouse testified that from February 1997 until the deceased worker's death she had contact with him weekly, two to three times per week, and he would bring her lunch at work or they would go out to eat or he would stop at their farm to visit her.

The surviving spouse believed that when he brought back the personal items to the farm in 1997 it was a sign the deceased worker would move back into the residence with her. The surviving spouse also testified that on November 9, 1997, the deceased worker came to see her and discussed going on vacation to a horse ranch which was something that she wanted to do and not a vacation for him, which was a change from their past practice.

Based upon an independent review of the evidence in the record the commission credits the testimony and evidence presented by the surviving spouse. The administrative law judge appropriately noted the discussion the couple had in August 1997 at their son's wedding as a pivotal point in their relationship. The commission agrees that based on the evidence presented in the record it was not established that the deceased worker and his surviving spouse were estranged. Their mutual affection for each other continued as did their desire to preserve their marriage, and neither party was intent about having a divorce and they intended to reunite. The commission notes that the deceased worker took the steps to postpone the divorce hearing which was scheduled in November 1997, which supports the surviving spouses testimony that the couple was working toward resolving their differences and were not contemplating divorce at the time of the deceased worker's death. Therefore, the commission finds that the surviving spouse met the definition of a dependent under Wis. Stat. § 102.51(1)(a)1 as a wife of a husband with whom she was living at the time of his death, and therefore was entitled to death benefits under Wis. Stat. § 102.46.

cc: 
Debbie Newlun
Attorney Steven D. Hitzeman
Attorney Lisa F. Kinney
Attorney Stephen Sobota
Abby Buttler

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