In Wisconsin, the elements of a workers compensation claim are listed in Wis. Stats. Sec. 102.03, which provides that liability for worker’s compensation exists under the Act only when the following conditions occur:
1. At the time of the injury, both the employee and the employer are subject to Ch. 102.
2. The employee sustains an injury.
3. At the time of the injury, the employee is performing service growing out of and incidental to his or her employment.
4. The accident or disease causing injury arises out of the employee’s employment.
5. The injury is not intentionally self-inflicted.
First, lets discuss element one, that at the time of the injury, both the employee and the employer are subject to Ch. 102. Most times, its a question of whether the injured person was actually an employee or an independent contractor.
An employer is anyone who employs three or more employees for services performed in Wisconsin or employs one employee who is paid $500 in a calendar quarter for services performed in Wisconsin. Wis. Stats. Sec. 102.04(1)(b).
Every person in the service of another under any contract of hire, express or implied, is an employee. Wis. Stats. Sec. 102.07(4). In addition, there are listed several sundry categories of employees in Chapter 102. The primary test for determining the existence of an employer-employee relationship is whether the alleged employer has a right to control the details of the work; and among the secondary tests which should be considered are: (1) The direct evidence of the exercise of the right to control; (2) the method of payment of compensation; (3) the furnishing of equipment or tools for the performance of the work; and (4) the right to fire or terminate the relationship. Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175, 182, 212 N.W.2d 97 (1973).
We are seeing more employers try to evade the workers compensation laws (and thereby paying for workers compensation insurance premiums) by alleging people working for them are independent contractors. This aspect of the “sharing economy” is not good for workers and shifts the risk of injury and medical and compensation to workers from employers.
McCormick Law Office in Milwaukee, Wisconsin represents employees hurt at work. We obtain workers comp coverage for medical bills, temporary disability and permanent disability.