Nihles v. Cull and Labor and Industry Review Commission, No. 2007AP2122 (Wis. App. 6/12/2008)

• Decision Date: 12 June 2008
• Docket Number: No. 2007AP2122.,2007AP2122.
• Parties: Tony Nihles d/b/a Tony Nihles Tree Service, Plaintiff, Wisconsin Workers Compensation Uninsured Employers Fund, Plaintiff-Appellant, v. William F. Cull and Labor and Industry Review Commission, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

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Tony Nihles d/b/a Tony Nihles Tree Service, PlaintiffWisconsin Workers Compensation Uninsured Employers Fund, Plaintiff-Appellant, v.William F. Cull and Labor and Industry Review Commission, Defendants-Respondents.

No. 2007AP2122.

Court of Appeals of Wisconsin, District IV.

Opinion Filed: June 12, 2008.

APPEAL from an order of the circuit court for Grant County: ROBERT P. VANDEHEY, Judge.Affirmed.

Before Higginbotham, P.J., Dykman and Bridge, JJ.

¶ 1PER CURIAM.

The Wisconsin Worker's Compensation Uninsured Employers Fund (the Fund) appeals an order affirming a jurisdictional coverage decision by the Labor and Industry Review Commission(LIRC).We affirm for the reasons discussed below.

¶ 2 It is undisputed that William Cull was injured on October 1, 2003, while performing work for Tony Nihles, who operated his own tree-trimming business.The parties also agree that the primary issue before LIRC was whether Nihles qualified as an "employer" subject to the Worker's Compensation Act.

¶ 3The statutes define an employer subject to the act to include a person who usually employs less than three people if the person paid wages of more than $500 in a preceding calendar quarter.Wis. Stat. § 102.04(1)(b)2.(2005-06).¹LIRC adopted an administrative law judge's factual finding that in the quarter preceding Cull's accident, Nihles had paid about $725 to a logger named Robert Merkes.The Fund challenges that factual finding on appeal.

¶ 4 The Worker's Compensation Act limits the scope of judicial review for factual findings.WISCONSIN STAT. § 102.23 provides in relevant part:

(1)(a) The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive....

....

(6) If the commission's order or award depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact.The court may, however, set aside the commission's order or award and remand the case to the commission if the commission's order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.

The question before us on this appeal, then, is whether there was substantial and credible evidence to support LIRC's factual finding that Merkes earned about $725 working for Nihles in the quarter preceding Cull's accident.

¶ 5 LIRC's finding was based on Merkes' testimony that he worked for Nihles during April, May and June of 2003.Merkes testified that he would stop by Nihles' home to see if Nihles had work for him.He testified that he worked for Nihles at several homes, including one a few blocks from Merkes' house, one at what he believed was called Evergreen Mobile Park in Platteville, and one in Belmont.He earned $15 an hour and was paid in cash at the end of each day, which averaged $ 100 to $125 on a daily basis.He did not know exactly how many jobs he had performed for Nihles and did not have any documentation of the payments.However, he believed he had probably earned between $500 to $1,000 during the relevant three-month period, with his best estimate being about $700 to $750.

¶ 6 The Fund points out that: the Evergreen Mobile Park manager testified that Nihles had not performed tree work for him in 2003; Nihles himself flatly disputed that Merkes had worked multiple jobs for him in the spring of 2003; Nihles' wife recalled Merkes working for Nihles on only one roofing job; Merkes was a longtime friend of Cull and may have had a grudge against Nihles because he had accused him of stealing a chainsaw; Merkes had no documentation to show exactly when or how much Nihles had paid him; and Merkes also worked for Nihles' brother and did not distinguish between their companies.From this, the Fund argues that Merkes' testimony was "so completely discredited by other evidence that it is incredible as a matter of law."SeePrincess House, Inc. v. DILHR,,111 Wis. 2d 46, 52, 330 N.W.2d 169(1983)(superseded by statute on other grounds).

¶ 7 Evidence is incredible when it is in conflict with the uniform...