employee relationship in this case is against the manifest weight of the other us now your honors i just entered the case at this level i didn't try the case handled via circuit court of appeals so i thought when i took a look at this case one of the first things i did was try to and i can't come up with that answer after i take a look at this decision after i look at the facts of the case law it appears to me that the only thing the employer could have done differently was not comply with federal law basically ignore public policy and safety and basically ignore a few instances of good commonsense now i understand that this manifest way standard is quite a burden and able to listen all these wonderful arguments of the afternoon and it is a daunting task and i don't want to come up here this afternoon and  just tell you well we have the real manifest way case but i think we do want to take a look at these facts only importance of all the facts i think we know the facts but this is a difficult area of the law because the only supreme court has said that you've read is here many japs contain elements of both employment and independent contractor relationship ok but then they go on the site and so cited in the in the kirkwood case where the evidence is well balanced it is the commission's province to weigh the evidence in the side among competing inferences and his decision will be upheld when the facts of a particular case and this is i think key here are susceptible to either interpretation totally clear control lack of control it goes back and forth but particularly this is an area where i think there's a lot of deference to be given to the commission's findings so i think it's pretty high for the good old not to dissuade you from the argument but you know you're starting out with the the street let me try and come in a couple of things not that we have destroyed the no that's ok chance to get your argument but the case law also says that i think this is fair there's a number of factors but there's two that is paramount in the court's opinion the right to control the work and the nature of the work the case law specifies specifically are the two most important considerations but tell me why do we company here didn't clearly have the right to control the real claimants work it absolutely absolutely direction it goes way to the day there is a factor that i would argue and it goes right in a direction control number one there was a discussion about this driver exclusively driving for us on t v and what i'd point out in some of these other cases you see a longstanding relationship i believe rovers and the one where they almost kind of do a shift in the shell so you're an employee no now you're an independent contractor this gentleman had his employment relationship start with this company in april of two thousand and five his accident occurred in june it's about two and a half months so i don't think that's that's the sort of situation and knowledge of those other cases you can see there's some longstanding relationship between the two of them the second factor there is a reference of there being a number of conditions for this gentleman they have to haul for another entity and i believe the record indicates that that other condition is one and it's a credit shock which makes sense because this this employer or absentee this entity had to have insurance on the equipment and so they  were entitled certainly to a credit check but say there's a number of conditions there were not a number of conditions i believe it referenced a credit check for usually he had to have bob to insurance but when he told somebody else right that is correct that is true and so so i'm not  to stand your argument about why they would have to have a credit check because of insurance well because they did have insurance on it on that vehicle sometimes i think it remains i mean i mean i don't know what the insurance one trick said the least according to the record you know they insured when he was an employer employee relationship as opposed to independent contractor status you've you know started out saying you don't know how you would have advised the employer different but here is a particularly relevant as to whether or not you know  from a result standpoint find it's independent contractor versus employer employee relationship i mean it's not a results driven analysis here we can only take the facts and the factors that are  evident within the case and make that determination here there are factors that weigh in favor of finding an employer employee relationship when it comes down to the ability to control it which justice hudson alluded to earlier so i mean there are factors here that do weigh in favor of that employer employee relationship don't you agree i respectfully disagree there are factors that show direction control that again the decision testimony that spiro called the spin every two hours to check on his location that spirit provided him with specific instructions to the address he was delivering on the night of the accident and that your client but i don't recall even assuming there was contradictory evidence it was up to the commission term who they wish to believe it we're giving you the strongest when so many in the problem is in and i think what we're trying to see is you can't deny there's an issue of control in this record there's a lot of there's also a lot of an issue there was no control and then he was an independent contractor but under the supreme court cases independent contractor but look at this agreement here what does it provide and i want you to answer this tell me if i'm one of the other motor carrier for him to be able to haul did he have an agreement with that responded and the fact the claimant had to obtain it we lease from the company to drive for another carrier is that true i believe the paperwork in the contract accurately that the contract was entered reflects the agreement between the parties judge will be  generally determined to be employment relationship this wasn't they hired him for a term or a single job we hire you to deliver just here one time and we'll pay you x number of dollars a jobs of various assignments and you can terminate him any time you want after thirty gauge home doesn't generally suggest that he's your employee and one advantage counter i believe you just such as that was  just because your complaint of federal law doesn't mean that you're basically off the hook for an independent contractor relationship but so number one employer ignore federal law and you might have a chance number two let's not do any safety checks let's not do any background checks and employer we might be off the hook number three as far as as far as how this relationship going to work we're going to tell you mr that koski to go pick up the snow in wisconsin but we're not going to tell you when you have to drop it off or is going to tell you taken out of employment relation worse an independent contractor relationship in the a but in related to actually care because of control is just out of the question they were limited and the supreme court to care what you think of our opinions it is our opinion you would exercise sufficient control for the workers compensation they are your employees we don't care what you call them and i don't care what you tell me internal revenue you call them they don't care and  to pay fica for my things and there's a lot of things i don't want to pay for so i don't want to i want to construct this are independent contractor relationship but i got to comply with federal law in order to comply with federal law i got to terminator mitt will all of these things are an issue of control and i'm back to the problem that if the evidence is on both sides of the aisle we don't have any discretion roll we've got a commission give us  didn't say get from indiana or wisconsin going this way we're going to track you like a plane on our radar map those are all the things that i think takes that next step and i understand it now that you are employed you're no longer an independent contractor but that's not the facts in this case the facts of this case show an employer that did the minimum they had to do to comply with federal law be a good citizen of the state but not step over the line and take the next steps that they did in the where case and they did the wrong person case and if you take a look at all the testimony and you take a look at those factors i believe that's why it shows the commission's decision was against a man a place where the evidence of why should be reversed thank you  just remember where you were going on this but there were third party claims unrelated to get well related litigation but there were claims made against s m t by the utilities company and concrete company  establishing either an employer employee relationship or an independent contractor there were no other educations ok i think that it is the court it is the stated two issues the right to control and the nature of the business i think the right to control has been firmly established and then of what you call this document it dictates what this driver could do for this company and what it in fact must do and secondly my client complied with those conditions of employment that the other aspect that was not talked about was the nature of the business there was no talk about much nature the business of the work steel and machinery transport company that is all they do that is on fact my client did for them did they did it only for this company  and of course followed state and federal regulations just like any other driver would do you call that driver an employer or independent contractor you must follow the rules once you step in a truck and inspect my client followed all the conditions laid out by the agreement since he stepped foot in the cab and drove from this company and again the actions of this petitioner were strictly under the control of the the respondent it was under the control it was under the direction and for the benefit of this company and again as i mentioned the control was actual and the agreement also implies that exercise it had the bill to exercise control or from the fact that they did have actual control and again my client complied with all those factors in just a commission decision considered testimony of various witnesses they made an exhaustive listing pro and con the circuit court also in their order did the same thing and came to the conclusion that where we start today that though  solely the province of the commission and i do not think that the facts in this case are disputed the this is what controlled disagreement is what controlled my client's actions he complied with them he drove exclusively for them and the dust commission promptly found that this gentleman was an employee and there was no other dispute in this case no other dispute once they found that he briefly counsel discuss the fact that they only were in the business of hauling steel machinery i believe there is testimony that they could haul other materials law from one of the witnesses for us on t v and again we talked with its exclusivity between the between m steel machinery and again point out it was only two and a half months this was not a long standing relationship between the two that's that's my response the points were just raised and again directional control which is what has been the key focus here again i again would i would submit to the court that aside from compliance with federal law that there was no uniform withholding taxes discussing which routes to take and as far as the point about whether or not he had to give permission for another employer or another company to take his a quid for him to drive for it was with regard to the equipment not him the equipment that he was driving at to be accounted for by  absentee really that appears to be the only factor that he suggested aside from the complaint of federal law but if you take a look at all the factors and especially take a look at the things that were cited in the rovers and case in the where case it's clear that this case is very different than those two one we've got a driver for shell clearly is a driver for the company in the other one kind of a shell game but that's not the type of case for those reasons we believe the evidence is against the manifest weight of the up against and the respect request a finding th