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


ROBERT WILSON, Applicant

URBAN ARTIFACTS INC, Employer

WISCONSIN WC UEF, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998000072


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, except as modified:

After the first sentence in the first full paragraph beginning on page five of the ALJ's decision, insert:

"The respondent paid wages of $500 or more in the first quarter of 1997 for services performed in this state."

ORDER

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

Dated and mailed: February 24, 1999
wilsonr.wsd : 101 : 3 ND 2.2 9.2

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

1. Posture.

The applicant alleges a work injury while working for Urban Artifacts, Inc., (Urban Artifacts) on June 16, 1997. The applicant fell from scaffolding, landed on his head, and was in the hospital for three days. He seeks temporary disability, medical expenses, and permanent disability for the residual effects from the fall.

The issues at the hearing were whether the Urban Artifacts was a "subject employer" on the date of injury, and the nature and extent of disability. The ALJ found the Urban Artifacts was a subject employer. He awarded 13.5 weeks of temporary disability, medical expenses, and permanent partial disability at four percent compared to disability to the whole body.

Urban Artifacts and the Wisconsin Uninsured Employers Fund (UEF) (1) have appealed for commission review. On appeal, both Urban Artifacts and UEF identify the sole issue as the question of whether Urban Artifacts is an employer subject to the workers compensation act. In his answer to the petitions for review, the applicant contends the ALJ's findings and order "are fully supported by the facts and should be approved in their entirety," but goes on say that if the findings should be modified in any respect the temporary disability award should be increased.

2. Urban Artifact's status as a subject employer.

In order for Urban Artifacts or UEF to be liable for the applicant's injury, Urban Artifacts must be a subject employer. Wis. Stat. 102.03(1)(b). Wisconsin Statutes 102.04(1) defines "employer subject to the provisions of this chapter" to include:

"102.04(1)(b) 1. Every person who usually employs 3 or more employes whether in one or more trades, businesses, professions or occupations, and whether in one or more locations.

"2. Every person who usually employes less than 3 employes, provided the person has paid wages of $500 or more in any calendar quarter for services performed in this state. Such employer shall become subject on the 10th day of the month next succeeding such quarter."

In this case, the ALJ found Urban Artifacts did not usually employ three or more persons, but that it did pay wages of $500 or more in the calendar quarter before the applicant was injured. (2)

The record supports the ALJ's finding that Urban Artifacts paid $500 or more in wages for services in the calendar quarter preceding the applicant's injury. Admittedly, Mr. Hacek's testimony on this point is not entirely consistent. However, the most reasonable conclusion from his testimony is that Mr. Hacek was paid at least $500 in the first quarter of 1997. In addition, Jeff Jansen, who operates Urban Artifacts, also acknowledges paying another fellow, Josh Miller, $300 for services rendered in the form of reimbursement for rent.

Mr. Jansen did not believe he ever paid Mr. Hacek and Mr. Miller combined more than $500 in any calendar quarter. Transcript, page 102. However, Mr. Jansen also acknowledged working with 20 subcontractors. (3) When asked directly by the ALJ if he ever paid $500 in a quarter for services, Mr. Jansen replied "I don't recall." Transcript, page 100.

UEF and Urban Artifacts argue that the applicant has the burden of proving the employer paid $500 in wages in a calendar quarter preceding the second quarter of 1997, and that the record is insufficient to meet that burden. Responding to a similar argument, however, the commission wrote:

"... the commission notes that the definition of `employer' refers to wages paid for any services performed in Wisconsin by any employe, not just services performed by the injured worker . . . . The overly rigorous application of the burden of proof advocated by the respondent would require an injured worker hurt on his first day on the job to prove the extent of Wisconsin employment by coworkers or former workers in prior quarters, possibly an impossible job if the employer did not keep records. In other words, the commission declines to apply the burden of proof to shield [the alleged employer] from its liability for benefits by failing to bring records to the hearing which would settle the issue at best or rebut the applicant's evidence on the issue at least."

Jeremiah Jensen v. Harold Martin Roofing, WC claim no. 970005804 (LIRC, April 28, 1998). In this case, the commission is satisfied the applicant has met his burden of proving that Urban Artifacts is a subject employer.

Urban Artifacts asserts in its brief that the ALJ never found Mr. Hacek was an employe of Urban Artifacts, a finding which seems to be necessary if the "wages for services performed" by Mr. Hacek are used to satisfy the $500 requirement under Wis. Stat. 102.04(1)(b)2. The commission is satisfied that Mr. Hacek was an "employe" within the meaning of Wis. Stat. 102.07, as the record establishes Mr. Hacek performed services for Urban Enterprises and that he was not a "nonsubject" independent contractor under Wis. Stat. 102.07(8) or (8m). See Revels v. Industrial Commission, 36 Wis. 2d 395, 402 (1967). Although the commission believes the ALJ's findings are sufficient, it has modified the ALJ's decision to include an additional finding on this issue.

3. TTD

The ALJ ended the applicant's temporary disability compensation before the applicant's healing period ended based on his release to work with restrictions by Eric Davidson, D.C. The ALJ took this action because the applicant did not relay the restrictions to Urban Artifacts.

In general, temporary disability must be paid during the entire healing period, unless it may be offset by wages earned during the healing period. Wis. Stat. 102.43(1) to (3). This can occur when an injured worker, while healing, is released to work with restrictions. The employer, however, has the burden of furnishing work within those restrictions. Wis. Admin. Code 80.47.

What happens when the worker never tells the employer he is available for work subject to restrictions? The department's apparent policy is to find the right to temporary disability is forfeited; a worker may not simply presume work will not be available. Neal & Danas, Workers Compensation Handbook 5.10 (4th ed., 1997). The ALJ's decision essentially follows this policy.

In addition, the applicant raised the issue of temporary disability in his answer, rather than a timely petition or cross-petition. The commission has traditionally accorded lesser weight to arguments made in responsive briefs and not actually the subject of a timely petition. Deborah Polakowski v. Clearview Nursing Home, WC case no. 96028025 (LIRC, December 17, 1997). Moreover, the applicant's answer seems to request additional temporary disability only provisionally. The commission thus affirms the ALJ's findings with respect to temporary disability as well.

cc: ATTORNEY STUART J SPAUDE

ATTORNEY MICHAEL C FROHMAN
KASDORF LEWIS & SWIETIK SC

ATTORNEY MARK V SEWALL
SIGMAN JANSSEN STACK WENNING & WILSON


Appealed to Circuit Court.  Affirmed July 23, 1999. Appealed to Court of Appeals. Affirmed May 9, 2000, per curiam. [Court of Appeals decision (.pdf format)]

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Footnotes:

(1)( Back ) Because Urban Artifacts did not carry workers compensation insurance, UEF is also a respondent in this case. Wis. Stat. 102.81(1)(a).

(2)( Back ) The applicant himself received well over $500 in wages in the quarter in which he was injured, the second quarter of 1997. See synopsis, page 2, and exhibit H. However, in order to be a covered employer, Urban Artifacts had to pay $500 wages in an earlier quarter (assuming it did not employ more than 3 people).

(3)( Back ) A subcontractor is an "employe" of the principal contractor, unless he or she meets certain criteria or he has his own employes. Wis. Stat. 102.07(8) and (8m).