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


DAWN M DAY, Applicant

VILLAGE OF GREENDALE, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94005719


An administrative law judge (ALJ) for the Workers Compensation Division of the Department of Industry, Labor and Human Relations 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 conclusion in that decision as its own.

ORDER

The decision of the administrative law judge is affirmed.

Dated and mailed May 18, 1995
dayda.wsd : 135 : 3 : ND 2.11

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The applicant argues that the issue for consideration by the commission is whether a "trial" of an employment position constitutes employment compensable under the Worker's Compensation Act. In Wisconsin, to be an employe, under section 102.07 (1)(a) and (4), Stats., the applicant must be both in the service of the municipality (here, the Village of Greendale) and under an appointment or contract of hire, express or implied. The administrative law judge was unable to conclude that when the applicant was injured she was in the service of the respondent and secondly, she was not functioning during the physical agility test under appointment or contract of hire, express or implied. Consequently, the administrative law judge concluded that the applicant was not an "employe" of the respondent on July 25, 1992 and therefore dismissed the applicant's application for hearing with prejudice. The commission agrees with the administrative law judge's findings and conclusion for the reasons discussed below.

The applicant argues that even though the administrative law judge utilized the two part test to determine the applicant's employment status, he ignored the basic purpose of the worker's compensation law which is to provide proper leave to injured employes who are entitled to compensation. However, the administrative law judge did not ignore the basic purpose of the worker's compensation law when he utilized the two part test to determine whether the applicant was indeed an employe of the respondent. The two part test the applicant refers to for determining whether an employment relationship exists is outlined in Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175 (1973). The court held that the primary test is whether the employer has the right to control the details of the work and that the secondary test requires consideration of various conditions including remuneration, the direct evidence of the right to control, respondent's furnishing of tools and equipment and its right to fire and hire. Id. At pg. 182.

The applicant offers various arguments supporting its assertion that the employer meet this two part test. First, the applicant argues that the administrative law judge chose to reject the applicant's argument that the respondent received a benefit from the applicant's performance of the agility testing. The benefit permits an employer like the respondent to select workers who are likely to be better suited for available positions. Likewise one could argue that the agility testing also conferred a benefit on the applicant. Nonetheless, the supreme court held in Kress Packing Co. that although an employe/employer relationship confers benefits both on the employer and the employe, the fact that benefits were realized by the applicant and respondent in Kress Packing Co. did not necessarily determine that an employer/employment relationship existed. Kress at p. 181. Moreover, the benefit to the respondent of having an available eligibility list is somewhat remote to impute an implied contract of hire between the respondent and the applicant.

Second the applicant argues that the administrative law judge ignored the fact that the respondent controlled the performance of the tests by the applicant, as well as others who participated. The applicant explains that the respondent directed which tests to perform, how to perform them and timed the results. Citing Kress Packing Co., the applicant contends that the most important test when determining whether an employment relationship exists is whether the employer has a right to control the actions of the employe. In response to this argument respondent contends that it did invite the applicant to participate in an agility test but as the administrative law judge noted, voluntary participation in the agility test cannot be considered "work" for the respondent. Respondent explains that in order to control how "work" is done, someone must evaluate and critique the work. Here there was no critique or evaluation during the actual agility testing but merely the recording of results for later compilation. Additionally the respondent did not furnish anything to the applicant which was needed to perform the agility testing. Finally, other conditions concerning the secondary test were also not met. For example, remuneration or wages were not paid to the applicant by the village. Based upon all of these facts the commission cannot imply a contract of hire between the applicant and respondent.

In support of its various arguments, the applicant cites two relevant cases from other jurisdictions concerning whether injuries incurred during a tryout but prior to employment are compensable. The most interesting case cited by the applicant is Laeng v. Workmen's Compensation Appeals Board, 6 Cal. 3d 771, 494 P.2d 1 (1972). In Laeng while participating in the "obstacle course" phase of a physical agility test conducted by the City of Covina, as part of a "tryout" competition for the position of a "refuse crew worker," the applicant fell from a raised, horizontal telephone poll, severely fracturing his right foot. Reversing the California Workmen's Compensation Appeals Board, the California Supreme Court concluded that the applicant's injury was compensable under its worker's compensation act. In Laeng, the court held that a presumption that any person rendering service for another, unless expressly excluded, is presumed to be an employe. In the decision before the commission, the administrative law judge explained that the presumption that one injured in the service of another employe is a rebuttable presumption and ceases to have force and effect when evidence to the contrary is adduced. Revels v. Industrial Commission, 36 Wis. 2d 395, 402 (1967). The commission, as the administrative law judge determined, concludes that the respondent and its insurance carrier have produced sufficient evidence successfully rebutting the presumption that the applicant is an employe. Although the California court in Laeng offers a compelling rationale, the case is persuasive and not binding authority in the State of Wisconsin. Consequently, the commission declines to follow the rationale offered by the Laeng court or the New York court in Smith v. Venezian Lamp Co., 5 App.Div.2d 12, 168 N.Y.S.2d 764 (1957) for reasons discussed above.

cc: ATTORNEY STEVEN J LOWNIK
SCHOBER & RADTKE SC

ATTORNEY PEGGY E STRAUB
STILP COTTEN & WELLS


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