CONNECTICUT INDEMNITY COMPANY, Applicant

FOUR CORPORATION, Applicant

LIBERTY MUTUAL INSURANCE COMPANY, Respondent

MASTER FLEET SERVICES, Respondent

WAYNE NELSON, Interested Party

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 March 25, 1997
ND § 2.16  § 8.41

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

The applicants, Connecticut Indemnity Company and Four Corporation, contend in their petition for commission review that the administrative law judge erred in determining that Master Fleet Services did not exercise control over the work performed by Mr. Nelson, and therefore it could not be concluded that there was a temporary help agency relationship between Four Corporation and Master Fleet, and dismissed the portion of the claim by the applicant.

The applicant contends that the administrative law judge concluded that Mr. Nelson had more control over his duties at Master Fleet on the date of the accident, February 28, 1996, than the evidence indicated that he actually had. The applicant states that Mr. Jost informed Mr. Nelson that Mr. Marinoff would give him specific instructions regarding what and where to weld when he got to Master Fleet, and that Mr. Nelson had to follow these instructions if he wanted to keep his job. The applicant contends that such compulsion constituted control.

However, the commission does not find that Master Fleet exercised control over Mr. Nelson's activities on February 28, 1996. The evidence indicated that Four Corporation employed Mr. Nelson as a certified welder in conformity with ASME standards to provide welding services on a contracting basis. Mr. Proft, a metallurgist and registered professional engineer, testified that a certified welder can only weld within the procedures designated and that if another person who was not qualified tried to tell the certified welder how to proceed and the welder disagreed, that the welder would determine how to proceed. Mr. Marinoff testified that he worked for Master Fleet as a mechanic and that the certified welder did the ordering of the Master Fleet personnel and not the other way around.

Mr. Marinoff further testified that he never told Mr. Nelson on February 28, 1996 the manner in which he was to perform his job and that no one at Master Fleet could have done the job that Mr. Nelson was performing. In addition, Mr. Jost testified that the location of the repair would be told to the worker when he arrived and that the welder had to follow certain procedures of what to do regardless of what anyone told him at the place where he would be performing the repairs. Further, Mr. Jost testified that Mr. Nelson would tell Master Fleet if the filler that they provided was insufficient for the metal to be welded. Based on the testimony presented at the hearing the commission agrees with the administrative law judge that Master Fleet did not have control over the work activities of Mr. Nelson so as to cause it to be a special employer.

Master Fleet did not give any specific directions to Mr. Nelson as to how he was to perform his work. Rather, Mr. Nelson as a certified welder, was in complete control of the procedures and activities needed to complete the repairs. The administrative law judge appropriately noted that Mr. Marinoff could not have directed the activities of the employe because neither Mr. Marinoff nor Master Fleet were certified welders or ASME certificate holders. The fact that Mr. Marinoff pointed out where the repairs needed to be done did not constitute control over Mr. Nelson's activities. It was not established that Master Fleet exercised any compulsion or control over Mr. Nelson's activities but simply pointed out where the work needed to be done. The commission also agrees with the administrative law judge that it was not established that Mr. Nelson constituted a loaned employe under the test set forth in Seaman Body Corporation v. Industrial Commission, 204 Wis. 157, 163, 235 N.W. 433 (1931). Since Master Fleet did not have the right to control the details of the work it was not established that Mr. Nelson consented to perform the work for Master Fleet but was simply sent by Four Corporation pursuant to the contractual relationship between Four Corporation and Master Fleet. Based on the testimony and evidence presented at the hearing, the commission finds that the administrative law judge appropriately dismissed the applicant's claim.

cc:
ATTORNEY DAVID A CASTAGNA
QUARTARO CASTAGNA EVEN & CAFARO

ATTORNEY PETER S NELSON
MENN NELSON SHARRATT TEETAERT BEISENSTEIN LTD

ATTORNEY SCOTT WOLDT
CURTIS WILDE & NEAL

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