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

ORRIN A BOND, Applicant

MJM SERVICES INC, Employer

GENERAL CAS CO OF WI, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2004-046938

MGM Services, Inc. and General Casualty Company of Wisconsin (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on October 28, 2005. The applicant submitted a cross-petition, and briefs have been submitted by the parties.

Respondents assert that the administrative law judge erred when she found that the applicant was performing services for MGM Services, Inc. as a covered employee, and not as an independent contractor under Wis. Stat. § 102.07(8)(b), when he sustained his work-related injury falling off a scaffold on December 8, 2004. The applicant asserts that the administrative law judge erred in calculating his average weekly wage.

The commission has carefully reviewed the entire record in this matter, and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

The applicant owned his own small construction business in 2001, 2002, and part of 2003. During those years he performed work as an independent contractor for MJM Services, Inc., a property management business. In 2003, he went out of business and declared personal bankruptcy. He then worked as a truck driver until sometime in 2004. In August 2004, he began performing construction, repair, and carpet laying services for MJM. He continued to do so until he was injured when he fell off a scaffold on December 8, 2004, while installing insulation in a building for MJM.

The first issue to be determined is the applicant's employment status for worker's compensation purposes, on the date of his injury. As noted by the administrative law judge in her decision, the manner in which the applicant performed his services during the year of 2004 certainly contained elements one would characterize as being consistent with independent contractor status. He invoiced his services under the name of Bond Construction, did not have a set work schedule, performed services for others besides MJM, and filed a Schedule C as proprietor of Bond Construction for 2004. However, as also noted by the administrative law judge, in order for an independent contractor not to be considered an employee of an employer for whom the independent contractor performs services, all nine of the conditions set forth in Wis. Stat. § 102.07(8)(b), must be satisfied.

The administrative law judge found that only conditions one and three of Wis. Stat. § 102.07(8)(b), were shown to have been satisfied in the applicant's case. The evidence reveals that the applicant filed business income tax returns with the Internal Revenue Service in the years 2003 and 2004, which satisfies one of the disjunctive conditions of condition 2 of the statute. Accordingly, the commission finds that conditions 1 through 3 of the statute were satisfied. With regard to conditions 4 through 9 of the statute, the commission agrees with the administrative law judge that the evidence does not show that these conditions were satisfied. MJM allowed the applicant to use MJM's credit card to purchase the materials needed for the jobs; MJM was the responsible contractor for the work involved; MJM paid the applicant on an hourly basis for the services he performed; the applicant's 2004 Schedule C contained profit and loss calculations that for tax purposes he related to his construction business, but the services he performed for MJM were strictly on an hourly-paid basis, and did not involve the risk of loss; there were no recurring business liabilities or obligations associated with the services the applicant performed for MJM in 2004; and there was no success-or-failure financial dynamic associated with the hourly work the applicant performed for MJM.

Therefore, pursuant to Wis. Stat. § 102.07(8)(a), the applicant is found to have been performing services as an employee for MJM when he sustained his work-related injuries on December 8, 2004.

The second issue to be resolved is the average weekly wage applicable to the applicant's performance of services for MJM. The applicant performed his services for MJM in a manner in which normal full-time days or weeks of work were not maintained in the employment. Therefore, pursuant to Wis. Stat. § 102.11(1)(c), his earnings in this employment shall be taken to be the usual going earnings paid for similar services in similar employment as determined under the methods set out in Wis. Stat. § 102.11(1)(a). Under Wis. Stat. § 102.11(1)(a), the average weekly wage for part-time employment such as that performed by the applicant is calculated on the basis of normal full-time employment in such work. (1)   Normal full-time employment for such work is 40 hours per week, the applicant was not restricting himself to part-time employment, and therefore his average weekly wage must be calculated at 40 times his hourly rate of $22.00 for an average weekly wage of $880.00.

As a result of the applicant's work-related left distal fibula fracture he was temporarily totally disabled from December 8, 2004 to April 2, 2005, a period of 16 weeks and 2 days, and the applicable rate of $586.67 per week, for a total of $9,582.28. The insurance carrier is credited for previous payment of $586.67, leaving a balance of $8,995.61, from which a 20 percent attorney's fee shall be subtracted.

Reasonably required medical expenses shall be awarded as set forth below. The applicant's physician, Dr. Keith Kahle, has left open the possibilities of permanent disability and additional medical treatment and/or disability, and therefore this order will be interlocutory.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to the applicant the sum of Seven thousand one hundred ninety-six dollars and forty-nine cents ($7,196.49); to the applicant's attorney, Edward Corcoran, fees in the amount of One thousand seven hundred ninety-nine dollars and twelve cents ($1,799.12); to City of Madison Ambulance the sum of Six hundred thirty-five dollars ($635.00); to Madison Emergency Physicians the sum of Three hundred twenty-four dollars ($324.00); to Madison Radiologists the sum of Forty-two dollars ($42.00); to Home Health United the sum of Fifty-six dollars and eighty-two cents ($56.82); to St. Mary's Hospital the sum of Five thousand eight hundred ninety dollars and sixty-nine cents ($5,890.69); and to Dean Health System the sum of Nine thousand one hundred ten dollars ($9,110.00).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed March 7, 2006
bondor . wpr : 185 : 8  ND § 2.13  ND § 4.8

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: Those portions of the administrative law judge's decision which were reversed did not involve any determinations of witness credibility.


cc:
Attorney Edward A. Corcoran
Attorney Timothy J. Yanacheck


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Footnotes:

(1)( Back ) Wis. Admin. Code ch. DWD 80.51(4) provides:

DWD 80.51 Computation of weekly wage. Pursuant to s. 102.11, Stats. (4) The 30 hour minimum workweek under s. 102.11(1)(f), Stats., does not apply to a part-time employee unless the employee is a member of a regularly scheduled class of part-time employees. In all other cases part-time employment is on the basis of normal full-time employment in such job. However, this subsection does not apply to part-time employees defined in s. 102.11(1)(f), Stats., who restrict availability on the labor market. As to the employees so defined, those wages will be expanded to the normal part-time or full-time wages unless the employer or insurance company complies with s. DWD 80.02(2)(a). (emphasis added).

 

uploaded 2006/03/13