DARLENE COBB, Applicant
COUNTY OF BARRON, Employer
WI COUNTY MUTUAL INS CORP, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such findings and orders as may be warranted.
Dated and mailed December 11, 2008
cobbda : 185 : 9 ND § 2.10
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Both Barron County and Francis Budlowski possessed and exercised control over different aspects of the services the applicant provided as a primary caregiver for Budlowski. In their briefs, respondents catalog Budlowski's elements of control, and draw factual distinctions between this case and the Nickell and Bunnell cases. (1) Respondents also assert that the administrative law judge's decision was based almost entirely on the fact that Barron County was the administrator of the Community Options Waiver Program funds, and that the ALJ ignored the fact that these funds come from the federal and state governments, with certain guidelines for how they are to be disbursed.
The ALJ did not mention these state and federal program guidelines in her decision, but the testimony and exhibits covered the fact that they existed, and the commission is certain that the ALJ considered them. The commission also considered them. Nevertheless, it was the county that assumed the responsibility for administering the program, assumed the right to control the disbursement of funds and the operation of the program, and exercised that control. As noted in Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175, 182, 212 N.W.2d 97 (1973), 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. As administrator of the program, and as direct provider of the program funds, Barron County had the primary "right" to control the details of the applicant's work. It is conceded that Barron County exercised that control by setting the applicant's wage rate, making a discretionary decision to continue payment to the applicant during a period when Budlowski was hospitalized, requiring that a fiscal agent be chosen for receipt and disbursement of funds, and regularly sending a social worker to Budlowski's home to check on the quality of care that he received. (2) Barron County allowed Budlowski to pick the applicant as his primary caregiver, and Budlowski could discharge her if he wished to do so. However, neither of these facts changes the credible inference that Barron County was full in control of the Community Options Waiver Program, and that had the social worker who regularly checked up on Budlowski been sufficiently dissatisfied with the quality of care provided by the applicant, Barron County could have stopped funding the applicant's wage and thereby effected her termination. Barron County argues against the ALJ's characterization of this arrangement as being a form of county "supervision" over the applicant's performance of services. The commission finds that this oversight role did constitute supervision of the applicant's performance of services.
It is understandable that in this matter Barron County wishes to avoid liability as an employer under Wis. Stat. 102.04(1)(a), especially since it appears that the federal and state agencies providing funds to the counties for these programs have made no provision for worker's compensation coverage, and have left the counties to fend for themselves regarding this important aspect of any home-based, primary care program. Wis. Stat. 102.07(4)(a)2., (3) will in virtually every case operate to exclude coverage for caregivers of a home-based individual, because such individuals are not in the "business" of providing primary care.
This leaves the county, as the program administrator, to be the only potential source for worker's compensation coverage, unless the home care recipient is furnished or is required to purchase his/her own worker's compensation insurance policy. From a policy perspective, this is a matter that counties should address with their federal and state funding sources. From a legal perspective in this case, it is clear that the primary right to control the applicant's performance of services for Budlowski, as well as substantial exercise of that right, were in the hands of Barron County.
Attorney Jason W. Whitley
Attorney Richard D. Duplessie
Appealed to Circuit Court. Affirmed July1, 2009. Appealed to the Court of Appeals. Affirmed County of Barron v. LIRC, 2010 WI App 149, 330 Wis. 2d 203, 792 N.W.2d 584 .
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(1)( Back ) Shirley Nickell v. Kewaunee County, WC Claim No. 94064155 (LIRC Sept. 24, 2006); George Bunnell v. County of Douglas, WC Claim No. 95007425 (LIRC Jan.30, 1997).
(2)( Back ) Obtaining a fiscal agent was a federal program requirement, but Barron County actually put the requirement into practice and enforced it in each individual case.
(3)( Back ) Wis. Stat. 102.07(4)(a)2., excludes from the definition of "employee" for worker's compensation purposes: "Any person whose employment is not in the course of a trade, business, profession or occupation of the employer, unless as to any of said classes, the employer has elected to include them."