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Commission Rules in Favor of Aplin & Ringsmuth Attorneys: Individuals in Pre-Hire Observation Period are not Employees under the Act; Filing a “Reverse” Hearing Application Does Not Change Who Holds Burden of Proof

By Jennifer Augustin

The Labor and Industry Review Commission recently considered the case of Wade Opperman against Let Mikey Do It, LLC, a client of Aplin & Ringsmuth. Opperman alleged that he was an employee of Let Mikey Do It at the time of his May 13, 2015 injury and was therefore entitled to benefits under the Act. Let Mikey Do It conceded that it was an employer under the Act and failed to carry the proper insurance against workplace injuries. However, with the help of Mark Ringsmuth and Jennifer Augustin of Aplin & Ringsmuth, Let Mikey Do It also argued that Opperman had not yet become an employee at the time of his injury and, therefore, Let Mikey Do It was not liable for benefits under the Act.

The Administrative Law Judge initially ruled against Let Mikey Do It. But the Commission reversed and issued a decision that was fully favorable to our client. The Commission determined that Opperman was in a pre-hire observation period at the time of his injury and, therefore, was not an employee of Let Mikey Do It. Further, the Commission determined that when a claim is commenced with a “reverse” Hearing Application filed by an employer, as opposed to a Hearing Application filed by an injured worker, it does not change which party has the burden of proof in the matter. The burden remains on the injured worker to prove all facts essential to the claim beyond a legitimate doubt.


What follows is a brief summary of the facts of the claim.

Opperman responded to a Craig’s List advertisement placed by Let Mikey Do It’s owner, Michael Beich, who was looking for a laborer for his handyman-type business. The two met at Beich’s home on Friday, May 8, 2015 to go over Opperman’s experience and the job requirements. There was no discussion about a wage rate at that time and Opperman was not asked to complete any employment forms. Instead, arrangements were made for Opperman to observe a laborer currently employed by Let Mikey Do It the following Monday to determine if the work was agreeable to him. He was specifically instructed not to perform any work but to merely observe the laborer.

Opperman observed the laborer as planned on Monday and was then asked to return for a second day of observation. This second day was necessary because the laborer would be performing insulation work, which was a major portion of Let Mikey Do It’s business. Opperman returned on Wednesday, May 13, 2015 and observed the laborer as he installed foam insulation in the ceiling of a residential kitchen. The laborer then left Opperman briefly to attend to something in another part of the house. After hearing a noise, he returned to the kitchen where he had left Opperman to find him laying on the floor with a fallen ladder. Opperman was taken to the hospital where he was treated for a concussion, among other conditions.

Opperman’s version of the facts varied significantly from that described above. Opperman alleged that he met with Beich on a job site on Friday, May 8, 2015 to discuss the open position. Opperman indicates he briefly observed a couple of laborers on that date, after which he was hired and an agreement was made that he would be paid $20.00 per hour. Importantly, this alleged hourly rate was greater than what Beich paid his most experienced laborer who would have acted as Opperman’s supervisor had he been hired. Also suspicious was the fact that, later in the claim, Opperman produced a W-4 and an Application for Employment that he alleges he filled out over the weekend and turned in on Monday, May 11, 2013, after he had allegedly been hired. This Application for Employment contained several inconsistencies with other facts of the claim. Further, Let Mikey Do It had never required its laborers to fill out an Application for Employment or a W-4 because it treated all laborers as independent contractors to whom it issued 1099s at the end of each year (a practice which was admittedly contrary to applicable law, and which the company corrected after hiring Aplin & Ringsmuth).

Opperman further testified that he was working alongside the laborer on the date of his alleged injury. To combat Opperman’s testimony, Let Mikey Do It produced a former laborer (the very one that Opperman was assigned to observe), who provided information that he, too, had been required to go through an observation period prior to getting hired, as had at least two other laborers of whom he was aware. Thus, it was argued that there was no reason Let Mikey Do It would deviate from its normal hiring practice which required a period of observation before a formal offer of employment was made. This, coupled with the evidence that was presumable fabricated by Opperman, helped the Commission determine that Opperman was not credible and failed to prove beyond a legitimate doubt that a contract of hire had been formed between him and Let Mikey Do It prior to his alleged injury.

Also important was the Commission’s finding that the burden of proof remains on the worker who seeks to receive benefits under the Act, regardless of which party files an Application seeking a hearing. In this claim, Let Mikey Do It filed a “reverse” Hearing Application seeking a hearing to determine whether an employer-employee relationship existed at the time of Opperman’s alleged injury. Such a filing was necessary because the Uninsured Employer’s Fund had accepted a claim from Opperman and paid benefits to him under in relation to his alleged injury. The Fund then sought reimbursement of those benefits from Let Mikey Do It.

If you are interested in learning more about this case, you can find the Commission’s decision at http://lirc.wisconsin.gov/wcdecsns/1785.htm. For more information about the laws applicable to this claim or the strategies for defending against them, please reach out to any one of our attorneys who are available for general questions as well as seminars and training presentations.