Appeals court upholds LIRC decision that home care giver is county employee

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 19, 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.

Kress Packing

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 providers.

“[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.”