Petrovic v. Labor & Indus. Review Comm'n
| Decision Date | 04 December 2012 |
| Docket Number | No. 2012AP273.,2012AP273. |
| Citation | 345 Wis.2d 847,2013 WI App 13,826 N.W.2d 123 |
| Parties | Nikola PETROVIC, Plaintiff–Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, DBG Express Trucking, LLC and WIS WC UEF, Defendants–Respondents. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from an order of the circuit court for Milwaukee County: Dennis P. Moroney, Judge. Affirmed.
Before CURLEY, P.J., KESSLER and BRENNAN, JJ.¶ 1PER CURIAM.
Nikola Petrovic appeals from a circuit court order affirming a decision of the Labor and Industry Review Commission (LIRC) that denied him worker's compensation benefits. LIRC, affirming the decision of an administrative law judge, concluded that Petrovic was an independent contractor and not an employee of DBG Express Trucking, LLC (DBG Trucking), when he sustained a work-related injury. We affirm.
¶ 2 Petrovic suffered an injury in November 2009 while hauling cargo as a truck driver. He applied for worker's compensation benefits, alleging that DBG Trucking was his employer. DBG Trucking did not carry worker's compensation insurance, so the Wisconsin Worker's Compensation Uninsured Employers Fund (UEF) handled the claim. The UEF contended that Petrovic was not employed by DBG Trucking but instead was an independent contractor. The matter proceeded to a hearing before an administrative law judge.
¶ 3 The evidence developed at the hearing reflected that DBG Trucking serves as a middleman for entities with cargo to ship and truck drivers under contract with DBG Trucking. Bojan Delipara, the owner of DBG Trucking, explained that customers call his company and tell him where their cargo is located, when the customers require pickup and delivery of their goods, and the fees that the customers propose to pay for shipping. The drivers tell Delipara when they are available and how far they are willing to drive. Delipara then offers each customer's proposal to an available driver. The driver can accept or refuse the proposal or ask Delipara to try to negotiate a higher fee for the transport.
¶ 4 The drivers under contract with DBG Trucking may drive for other companies but the drivers must first notify Delipara. He explained that notification is necessary because the drivers' trucks display MC (motor carrier) and Department of Transportation numbers assigned to DBG Trucking, and the displays must be removed before the drivers haul cargo for another company.
¶ 5 Delipara testified that in November 2009 he had contracts with four truck drivers, including Petrovic. The contract between Petrovic and DBG Trucking is in the record and identifies Petrovic as an independent contractor. Pursuant to the contract, Petrovic received ninety percent of the gross receipts of each delivery that he completed, and DBG Trucking received a ten percent commission. Delipara did not deduct any taxes from the amounts he paid to Petrovic, but Delipara did deduct from those amounts $300 a week to pay for cargo liability insurance. Delipara said that he obtains insurance for all of the drivers he works with to allow them to take advantage of a multiple contractor discount. The drivers, however, pay the cost of insurance coverage.
¶ 6 Petrovic also testified. He said that he owned the truck that he used to haul cargo for DBG Trucking and that he paid for all of the costs of maintaining the truck, including licensing fees, registration, and repairs. He said that DBG Trucking paid him only for freight-hauling assignments that he accepted and that he could refuse an assignment that he did not want. He chose his own route for each assignment that he accepted, and he was responsible for the expenses, including tolls and fuel costs, associated with hauling each load of cargo. He said that he has a federal tax identification number, and he filed tax returns in 2007 and 2008 that included a Schedule C: Profit or Loss from Business. Copies of those tax returns are in the record. On each Schedule C, Petrovic stated a business address that is also his home address, he reported a profit each year, and he deducted business expenses, including insurance. He testified that he kept all the records necessary for his work either in his home or in his truck. He acknowledged that he spent a brief period driving for another trucking company but then resumed driving for DBG Trucking until he was injured.
¶ 7 Based on the foregoing evidence, the administrative law judge determined that Petrovic was an independent contractor and not an employee of DBG Trucking at the time of his injury. LIRC affirmed the decision of the administrative law judge. The circuit court affirmed in turn, and this appeal followed.
¶ 8 Our scope of review is identical to that of the circuit court. Hill v. LIRC, 184 Wis.2d 101, 109, 516 N.W.2d 441 (Ct.App.1994). “We review the [C]ommission's factual findings and legal conclusions, not those of the circuit court.” Epic Staff Mgmt., Inc. v. LIRC, 2003 WI App 143, ¶ 13, 266 Wis.2d 369, 667 N.W.2d 765. We are bound by LIRC's findings of fact if credible evidence exists to support them, “even if LIRC's findings appear contrary to the great weight and clear preponderance of the evidence.” Hill, 184 Wis.2d at 110–11, 516 N.W.2d 441. We are not bound by an administrative agency's conclusions of law. Weston v. DWD, 2007 WI App 167, ¶ 12, 304 Wis.2d 418, 737 N.W.2d 74.
¶ 9 Petrovic asserts that, at the time of his injury, he was an employee of DBG Trucking and not an independent contractor for purposes of the Worker's Compensation Act. The determination is governed by a nine-part statutory test described in Wis. Stat. § 102.07(8)(b)1.–9. (2009–10).1 A worker who meets all of the statutory criteria is an independent contractor rather than an employee and therefore is not eligible for worker's compensation benefits under the act. See Jarrett v. LIRC, 2000 WI App 46, ¶¶ 1, 22, 233 Wis.2d 174, 607 N.W.2d 326.
¶ 10 Petrovic contends that he did not satisfy the criteria set forth in Wis. Stat. § 102.07(8)(b)1.2 He argues that “he did not maintain a separate business with his own office, equipment, materials and other facilities.” LIRC, however, concluded otherwise.
¶ 11 Application of a statutory standard to facts found by an agency is a question of law. Margoles v. LIRC, 221 Wis.2d 260, 264, 585 N.W.2d 596 (Ct.App.1998). On review, we afford the agency one of three levels of deference: great weight, due weight, or no deference. See id. at 264–65, 585 N.W.2d 596. Great weight deference is appropriate where: (1) the legislature has charged the agency with the duty of administering the statute; (2) the agency's interpretation is long-standing; (3) the agency's interpretation is based on its specialized knowledge or expertise; and (4) the agency's interpretation provides consistency and uniformity in applying the statute. Id. at 265, 585 N.W.2d 596. We give due weight deference when an agency decision does not meet all of the criteria for great weight deference or the decision “is ‘very nearly one of first impression.’ ” Estate of Hagenstein v. DHFS, 2006 WI App 90, ¶ 20, 292 Wis.2d 697, 715 N.W.2d 645 (citation omitted). De novo review, conducted with no deference to the agency, is appropriate where the issue is clearly one of first impression or where an agency's position on an issue has been so inconsistent that it provides no real guidance. UFE Inc. v. LIRC, 201 Wis.2d 274, 285, 548 N.W.2d 57 (1996).
¶ 12 LIRC contends that we should afford great weight deference to the conclusion that Petrovic maintained his own business within the meaning of Wis. Stat. § 102.07(8)(b)1. LIRC's position is compelling. We recently observed that, “[a]t this point, there can be no dispute that the Commission has developed a long-standing interpretation of the rules governing the employer-employee relationship and has used its expertise and specialized knowledge in crafting that interpretation.” County of Barron v. LIRC, 2010 WI App 149, ¶ 23, 330 Wis.2d 203, 792 N.W.2d 584. Additionally, “the Commission's interpretation of Wis. Stat. § 102.07 and related statutes provides uniformity and consistency.” County of Barron, 330 Wis.2d 203, ¶ 23, 792 N.W.2d 584.
¶ 13 Petrovic nonetheless asserts that we should conduct a de novo review because, he says, LIRC inconsistently applies Wis. Stat. § 102.07(8)(b)1. In support of this contention, he directs us to “ compare Floerchinger v. Nestle Transp., WC Claim No.2000–017699, , (LIRC Aug. 15, 2001)with Tucker v. Ace World Wide Moving & Storage, WC Claim No.1999–057774, , (LIRC March 2, 2001).” Petrovic offers no further discussion of Floerchinger or Tucker, and our review of these two administrative decisions does not satisfy us that LIRC inconsistently applies the statute. Rather, in both Floerchinger and Tucker, LIRC examined the facts to determine whether they demonstrated that the truck driver seeking worker's compensation benefits was an independent contractor or an employee in relationship to a putative employer.
¶ 14 In Floerchinger, LIRC determined that a worker was an independent contractor. See id., 2001 WL 1019954 at *5. LIRC found that the driver's “home and his truck cab together served as the only office he needed to maintain his business.” Id. at *2. LIRC further found that the driver owned the truck he used for hauling freight, could freely terminate his relationship with the putative employer, and, if he did so, could continue his trucking business with other companies. Id. at *2–*3. LIRC concluded that the truck driver maintained a separate business for purposes of Wis. Stat. § 102.07(8)(b)1.Floerchinger, 2001 WL 1019954 at *3. Further, LIRC noted that it had reached a similar conclusion under similar circumstances in Blose v. Roberts Trucking Inc., WC Claim No. 1998040771, 1999 WL 1277503 (LIRC Dec. 8, 1999). See Floerchinger, 2001 WL 1019954 at *3.
¶ 15 In Tucker, LIRC determined that a truck driver was an employee rather than an independent contractor. See Tucker, 2001 WL 355483...
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