Appeals court upholds LIRC decision that home care giver is county
LIRC said an employer-employee relationship existed between the county
and a home caregiver under COP-W that entitled the home caregiver to
workers compensation benefits.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
2010 – An in-home care giver under the long-term support community
options waiver program (COP-W) is an employee of the county for
worker’s compensation purposes, the District III Wisconsin appeals
court recently held.
Despite noting that the decision “may have financial implications
for Wisconsin counties,” the appeals court in County
of Barron v. LIRC, 2009AP1845 (Oct. 19, 2010), affirmed a Labor
and Industry Review Commission (LIRC) decision to extend worker’s
compensation benefits to Dalene Cobb, who was injured while providing
in-home care to Francis Budlowski.
Barron County, which is required by statute to administer the COP-W
program that provides ongoing care management services, rejected
Cobb’s claim for worker’s compensation, arguing that she was
not a county employee.
The Department of Workforce Development concluded that Cobb was a
county employee and awarded worker’s compensation benefits. LIRC
reviewed the case, and concluded that “although the County and
Budlowski exercised control over different aspects of Cobb’s
duties, the County’s administration of the COP-W program gave rise
to an employment relationship.”
The county argued that neither federal nor state agencies provide funds
for worker’s compensation coverage, leaving counties to
“fend for themselves regarding this important aspect of any
home-based, primary care program.”
The circuit court applied great weight deference to LIRC’s
conclusion that Cobb was a county employee for worker’s
compensation purposes. The county appealed.
To determine whether an employer-employee relationship was established
between Cobb and the county, for purposes of worker’s
compensation, LIRC employed the test set forth in Kress
Packing, 61 Wis.2d 175, 212 N.W.2d 97 (1973).
Kress determines the existence of an employer-employee
relationship based on the employer’s “right to control the
details of the work.” Id. at 182.
The county argued that LIRC was entitled to no deference in making its
conclusion, because LIRC has been “inconsistent when applying the
Kress Packing test to in-home caregivers providing services
under the COP-W program.”
Granting great weight deference is warranted, the court noted, because
LIRC “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.”
The county cited three cases – Ambrose v. Harley Vandeveer
Family Trust, Claim No. 8639393 (LIRC Feb. 28, 1989); Nickell
v. County of Kewaunee, Claim No. 94064155 (LIRC Sept. 24, 1996);
and Bunnell v. County of Douglas, Claim No. 95007425 (Jan. 30,
1997) – to argue that such cases “leave interested parties
with no way of knowing how the Commission will apply the Kress
Packing factors in future cases.”
The Wisconsin Supreme Court “has acknowledged that the Kress
Packing test is ‘fact specific,’ and different facts
will often give rise to different conclusions,” the appeals court
explained. “Yet the fact specific nature of the Kress
Packing inquiry does not suggest that that the Commission’s
decisions have left interested parties with no guidance.
Under LIRC’s analysis, the county had a right to control the
details of Cobb’s work, the appeals court concluded.
Financial implications for counties?
The Wisconsin Counties Association filed an amicus curiae brief,
arguing that LIRC’s decision will have “dire consequences
for Wisconsin counties,” which will be forced to maintain
worker’s compensation insurance for similar home care
“[T]he Association’s policy argument, while illuminating,
is ultimately not a basis upon which we may reverse the
Commission’s decision,” the court wrote. Financial
implications are “a problem appropriately addressed to state and
federal funding sources.”