Wis.LIRC WC Decision: Gryczkowski, Phillip - December 17, 2002 - ND � 2.13 - Independent Contractors - applicant was an independent contractor for a time under agreement with employer to do timber cutting and skidding on "per job" basis, but became an employee when, after his skidder broke and he could not longer comply with terms of independent contractor agreement, he was employed on a fixed $150/day basis to cut timber - given changes in working conditions, responsibilities, and method of payment, he was no longer an independent contractor but rather an employee

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

PHILLIP C GRYCZKOWSKI, Applicant

GREAT LAKES & ASSOCIATES LTD, Respondent

AMERICAN INTERSTATE INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999054623

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 17, 2002
gryczph . wsd : 175 : 3 ND � 2.13

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION
The respondent asserts in its petition for commission review the administrative law judge erred in determining the applicant was the respondent's employee and not an independent contractor. The respondent contends the applicant met the nine elements of the test under Wis. Stat. § 102.07 to be considered an independent contractor. The respondent contends that even after September 7, 1999, the applicant continued to be an independent contractor, and even though he could no longer skid for the respondent, and as a result his duties and compensation changed, this did not automatically create an employer/employee relationship.

However, the evidence indicates the applicant and the respondent entered into a written agreement on June 30, 1999, which provided the applicant would cut and skid timber on land owned by the respondent on a per cord rate to be agreed upon, and compensation for the work for services performed was on a thousand basis only. The applicant provided his own equipment, a skidder, and performed services pursuant to this agreement until September 7, 1999, when his skidder broke.

The applicant credibly testified that on September 7, 1999, he meet with the respondent's owner, Scott Hageny, and they discussed the applicant performing cutting work for the respondent beginning the following day, with Mark Hageny working on the respondent's own skidder. The applicant testified Scott Hageny offered to pay him $150 per day for the cutting work, and the applicant was no longer responsible for his motel expenses. Previously, between June 1999 and September 7, 1999, the applicant's motel expenses were taken out of his check as reimbursement for the respondent's expenses.

Scott Hageny admitted the subcontractor agreement the applicant signed did not have any provision for the applicant being paid on a daily rate under any circumstances. Scott Hageny also admitted that when the applicant's skidder broke he did not have all the equipment needed to fulfil the complete terms of the agreement, although he still maintained a power saw. Mr. Hageny could not designate which activities or factors distinguished the applicant's work after September 7, 1999, from other individuals working as employees and not subcontractors. Mr. Hageny agreed that as of September 1999 the agreement with the applicant was to simply cut timber at $150 per day, and he was no longer responsible for any housing expenses, and he was not paid on a per job basis after September 7, 1999.

The commission notes the applicant's initial subcontractor agreement with the respondent specifically provided the applicant work to cut and skid timber on the respondent's property on a per cord rate to be agreed upon, and compensation for the work or services provided or performed would be on a per thousand basis, and not on any other basis. Subsequent to September 7, 1999, the applicant was paid on a daily basis and not on a per thousand basis. The applicant was compensated like any other employee of the respondent. Mark Hageny admitted the applicant was compensated in exactly the same way as he was as an employee. The applicant had to pay his own expenses for gas and fuel. Further the respondent paid the applicant's motel expenses subsequent to September 7, 1999, as the respondent did for all of its other employees. Although Scott Hageny contended this was a temporary agreement in September 1999 the evidence indicates the applicant worked under this new oral agreement on more than one job for the respondent in which his activities were limited to cutting timber. The administrative law judge also appropriately noted with the new oral agreement Scott Hageny was able to move one of his sons, John, from the job and its hazards, and was able to send John to Eau Claire to scout out new additional timber jobs, and was able to keep his more expensive skidder productive and profitable, as Mr. Thiel had testified.

Scott Hageny also contended the means of compensation changed on September 7, 1999, because of the more difficult work at the Coon Valley site. However, the applicant was working at Eagle Road site on September 7, 1999, and it was not established it was a dangerous site or required any different modes of compensation, and Scott Hageny allowed the compensation to proceed throughout the remainder of the Eagle Road job and also into the Coon Valley work. Therefore, Scott Hageny's contention there was an ulterior motive for assigning the applicant a different mode of payment is not persuasive. In addition, the applicant testified subsequent to September 7, 1999, he received instructions on what to do and which trees to cut for Mark Hageny, and he was treated like any other employee rather than a subcontractor. Under the circumstances, given the change in the applicant's working conditions, responsibilities and method of payment, the commission agrees with the administrative law judge that subsequent to September 7, 1999, the applicant was no longer an independent contractor but rather was an employee of the respondent. Also the commission agrees with the administrative law judge the evidence indicates the applicant's weekly wage amounted to $583.38 per hour.

cc:
Attorney Steve M. Jackson
Attorney Russell W. Wilson

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