SK Management, LLC v. King et al., No. 2021AP490, unpublished judge
authored (Wis. Ct. App. Aug. 23, 2022 (White, J.)
The applicant, Donald King, was
injured while working on a demolition project at a building owned by SK
Management. SK Management was not insured, so the Uninsured Employers Fund
(UEF) covered the claim. UEF then sought to recover the payments it made from
SK Management. SK Management filed a reverse hearing application, claiming it
was not King's employer.
King worked on a crew that was
brought to the SK Management jobsite by Brian Schweinert. Background regarding
the history of this relationship includes that Tim Olson, SK Management's
operations manager, began hiring Schweinert, and his sole proprietorship, Mr.
Phixitall, to do work such as demolition, maintenance, snowplowing, and lawn
mowing at various properties managed by SK Management in 2015. Schweinert asked Olson if he could bring
helpers, and Olson said he did not care.
Olson generally relayed what jobs needed to be done through Schweinert,
though occasionally Olson would "appear at jobsites and direct the workers
Although Schweinert brought some
of his own tools to the jobsites, SK Management supplied "equipment
including dumpsters, garbage bags, painter’s uniforms, dust masks, safety
glasses, and gloves.” King himself brought no tools to the jobsite.
Although some early jobs were
performed on a bid basis, after 2015, SK Management paid Schweinert and all of
the workers procured by Schweinert, on an hourly rate set by Olson. Olson approved any merit hourly wage
increases after consultation with Schweinert, and if Olson was dissatisfied
with a worker’s performance, he would tell Schweinert not to bring the worker
back and Schweinert would comply.
Each week, SK Management issued
one check to Schweinert, encompassing all of the hours worked by Schweinert and
the other workers. Schweinert cashed the check and distributed the pay
appropriately. Schweinert retained $1 per hour from the other workers’ pay to
cover supplies and certain tools on the jobsite.
The ALJ and the Commission both
found that King was SK Management's employee, and dismissed SK Management's
reverse application. The circuit court affirmed.
On appeal to the Court of
Appeals, SK Management did not dispute that it was an "employer"
within the meaning of Wis. Stat. § 102.04(1)(b). However, SK Management argued
that it was not the employer of Schweinert or King. Instead, SK Management
asserted that Schweinert was an independent contractor excluded from the
definition of "employee" under Wis. Stat. § 102.07(8)(b). It also
asserted that King and SK Management did not have an employer-employee relationship
under the Kress Packing test. It argued that Schweinert, not SK
Management, was King’s employer.
The Court of Appeals first agreed
with the Commission that it was permissible to segregate the demolition work
that King performed from other work—lawn mowing, snowplowing, auto repair—that
Schweinert did through his independent contractor business. The Court then
affirmed the Commission's finding that, with respect to the demolition work,
Schweinert met only two of the nine conditions necessary to be an excluded independent
contractor rather than an employee under Wis. Stat. 102.07(8)(b).
SK Management argues that even if
Schweinert is not an excluded independent contractor, he was still King’s
employer under the meaning of Wis. Stat. § 102.04(1)(b). The Court of Appeals
rejected that argument, noting:
…because Schweinert is an
employee of SK Management—which we established above when we concluded
Schweinert worked for SK Management and was not an independent contractor— he
cannot be an employer of another person within the performance of those same
duties for SK Management. See Whittingham, 305 Wis. 2d 613, ¶¶9-10.
The Court saw the threshold issue
as whether King’s employment fell under a contract for hire with SK Management.
It noted that there need not be direct communication between prospective
employer and prospective employee to establish the employment relationship,
adding, however, that some authorization, express or implied, is needed to
establish a subsequent contract of hire. The Court went on to concluded that
the Commission's analysis that King worked under a contract for hire with SK
Management was supported by substantial and credible evidence. It observed:
King was not hired until Olson
authorized Schweinert to do so. Olson controlled how much King and Schweinert
were paid. Because the record supports that Schweinert was an employee of SK
Management, SK Management need not expressly hire King. It is sufficient that
SK Management had actual notice of King’s work on the demolition work, as shown
by Olson speaking directly to King and directing his work on occasion.
Therefore, we conclude that a contract for hire was established.
The Court then turned to the
issue of whether there was an employer-employee relationship between SK
Management and King. It noted the Kress Packing test is applied to
determine whether a person is an employee under Wis. Stat. § 102.07(4)(a).
The Court went on to conclude
that King had an employee-employer relationship with SK Management, as the
record reflected that SK Management, through Olson, had the right to control
the details of King’s work. Olson generally relayed the details of a demolition
project through Schweinert, but Olson also appeared at jobsites and directed
the workers himself. Olson discussed work to be performed with King directly at
some points. Olson had the final say
over whether a demolition project was completed satisfactorily and would direct
Schweinert and other workers to return to the jobsite as necessary to complete
the work. And, SK Management, by Olson, could fire King.
Murff v. LIRC, No. 2021AP1155, unpublished judge authored (Wis. Ct.
App. Aug. 23, 2022) (Brash, C.J.)
Murff began working for Aurora in
at St. Luke’s Medical Center in June 2008. She worked full time as a third
shift housekeeper. Murff asserts that she sustained a work injury on April 9,
2010, in a reaching/lifting incident in she felt a "pop" in her lower
Murff advanced three theories for
recovery in her worker’s compensation claim: (1) that the work incident in
April 2010 was a direct cause of her back problems; (2) that if not a direct
cause, it was probable that the work incident precipitated, aggravated, and
accelerated a preexisting degenerative condition beyond its normal progression;
or (3) that Murff’s job duties while working for Aurora were a material
contributory causative factor of her back condition’s onset or progression.
The Commission denied
compensation. It had found credibility issues with the opinions of the treating
physicians—none of whom testified—who related Murff’s back problems to the work
incident. For example, one doctor inaccurately described the work injury.
Another doctor's report contained no information relating to Murff’s job
duties, nor any information relating to how those duties could have resulted in
an occupational work injury. The Commission also noted problems with the IME’s
opinion. However, the Commission ultimately determined that Murff had not met
her burden of proving her claim.
Murff argued that her doctors had
made a prima facie case of a compensable injury, which the Respondent failed to
rebut because the Commission did not credit the IME's opinion either. Murff's
argument relied in part on Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136,
682 N.W.2d 29, with its burden shifting analysis in odd lot cases. However, as
the court noted, Murff was not asserting an odd lot claim. Instead, Murff's
case simply involved a matter of the Commission "choosing what to believe
and what not to believe, and it did not believe the treating doctors."
On this point, the Court noted
the "legitimate doubt" standard under which it is "‘an
elementary principle’ that the claimant has the burden of proving beyond a
legitimate doubt all the facts essential to the recovery of compensation."
Leist v. LIRC, 183 Wis. 2d 450, 457, 515 N.W.2d 268 (1994). Still,
however, the Commission "cannot reject a medical opinion unless there is
something in the record to support its rejection." While it may not rely
solely on its "cultivated intuition," it is not "require[d] … to
provide countervailing medical expert opinions to support a legitimate
doubt." Leist, 183 Wis. 2d at 460-62.
The Court went on to note that
"[a] legitimate doubt comprises ‘some inherent inconsistency ... or
conflict in the testimony,’" citing Kowalchuk, 234 Wis. 2d 203, ¶8. That
is, there just needs to be "something in the record" to support its
rejection of a medical opinion. Leist, 183 Wis. 2d at 460. In this case, the Commission
explained what caused it to doubt the veracity of the opinions of the doctors who
had indicated the work incident was a cause of Murff’s back problems. Indeed,
the Court concluded, these findings were "simply a matter of
credibility," citing E.F. Brewer, 82 Wis. 2d at 639.
Take-away Point: The Commission
may deny a claim if the Commission identifies inconsistencies in the Applicant's
expert medical opinions sufficient to establish legitimate doubt, regardless of
the Respondent’s defenses to the claim.
Mallet v. LIRC,
No. 21AP1263, unpublished per curiam (Wis. Ct. App. June 28, 2022)
Pro se applicant, Gregory Mallet,
claimed injuries to his spine that involved four appeals through the Court of Appeals
on three different dates of injury: an accidental injury of April 1981, occupational
exposure to December 1983, and more occupational exposure from January to April
1984. This case involved the last periods of work exposure. The Commission
denied the claim, crediting the IME doctor, Richard Karr, M.D., who opined that
Mallett's ongoing complaints of midback and low back pain were partly due to
the normal progression of non-work-related spondylosis and partly due to
behavioral factors. The Commission also noted the treating doctors' notes
focused largely on the earlier dates of injury and only mentioned the last
period of work exposure in pre-printed response to letters sent to them by the Applicant
The Court of Appeals affirmed the
Commission decision, noting the following:
The Court noted that that Mallett
cites to Miron Construction Co. v. Kampfer, 215 Wis. 2d 323, 572 N.W.2d
902 (Ct. App. 1997)4, for the proposition that an IME doctor must make a
definitive diagnosis in order to be deemed credible by LIRC. The Mallett court
first noted that the Miron Construction case was a per curiam opinion, so it
has no precedential value and may not be cited for its persuasive value.
Further, the Court noted that the Miron Construction's holding in that case
does not stand for the premise advanced by Mallett.
In an actual reported case, Molinaro
v. Industrial Comm., 273 Wis. 129, 133 (1956). In that case, Court stated
if a medical report offered by a respondent raises a credible legitimate doubt
as to whether work caused disability, it is not necessary for the respondent to
go further and prove that the disability is instead caused by an off-duty
accident or exposure.
Take-away Point: Prior
unpublished per curiam decision in Miron Construction should not have been
cited and did not support proposition that an IME doctor must make a definitive
diagnosis in order to be deemed credible by LIRC.