Wis.LIRC WC Decision: Ambrose - February 28, 1989 - ND � 2.10 - Employees; Generally - personal care to invalid not within the "domestic servant" exception, nor providing in course of trade, business, occupation or profession" of invalid; � 2.11 - Test of Employment Relationship - primary test is right to control the details of the work; secondary tests include direct evidence of exercise of right of control, method of payment of compensation, furnishing of equipment or tools, and right to fire

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JOYCE AMBROSE, Applicant

HARLEY VANDEVEER FAMILY TRUST, Employer

NORTHWESTERN NATIONAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 86-39393

The applicant submitted a petition for Commission review of the Administrative Law Judge's decision issued on April 14, 1988. Memorandum briefs were submitted by both the applicant and respondent. At issue is whether the applicant was an "employe" of respondent Vandeveer Family Trust or Marine Trust Company, within the meaning of section 102.07 (4), Stats. if this issue were to be decided in the affirmative, other issues would arise concerning whether a compensable injury occurred on December 10, 1983, average weekly wage, nature and extent of disability, and liability for medical expense.

The Commission has carefully reviewed the entire record and hereby sets aside the Adminstrative Law Judge's Findings and Order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant sustained injuries on December 10, 1983, when she slipped and fell in the home of her sister, who suffers from a disabling disease. In his last will and testament, applicant's father established the Vandeveer Family Trust, which provides for the continuing care of the applicant's invalid sister. Marine Trust Company was the trustee on December 10, 1983. The applicant is attempting to obtain worker's compensation coverage for her fall through Marine Trust Company's Insurance Carrier.

The applicant began assisting with the care of her sister on a voluntary basis in July of 1983. This was done without involvement of Marine Trust. There were other individuals also giving primary care to applicant's sister, and these individuals were paid by Marine Trust. However, they were hired by the applicant's sister and she controlled the details of their work. Marine Trust merely paid their wages after they submitted bills which had been initialed by the applicant's sister.

In October of 1983, the applicant's sister notified Marine Trust that she wished them to begin paying the applicant for services rendered, at approximately minimum wage on week days and at a higher rate on weekends. Marine Trust complied with this request. The applicant functioned as a primary care giver to her sister, although in administering such care she assisted in the preparation of meals.

In February of 1984, the applicant's sister wrote a letter to Marine Trust requesting retroactive payment to the applicant for personal care services she had performed in July of 1983. Marine Trust initially refused payment on the basis that other care givers were paid for the same period of time, but ultimately settled the matter by paying the applicant $300 of the $450 claimed.

Section 102.07 (4), Stats., provides in relevant part:

" 'Employe' as used in this chapter means: . . .

(4) Every person in the service of another under any contract of hire, express or implied . . . but not including (a) domestic servants, (b) any person whose employment is not in the course of a trade, business, profession or occupation of his employer, . . . Item (b) shall not operate to exclude an employe whose employment is in the course of any trade, business, profession or occupation of his employer, however casual, unusual, desultory or isolated any such trade, business, profession or occupation may be."

Neither the statutes nor any Wisconsin case law provides a definition or discussion of the meaning of "domestic servant" as it is used in the above statute. However, the Commission concludes that a reasonable interpretation of the term would not include an individual who is hired to give primary care to an invalid. This is true even though the primary care giver may assist in preparation and clean up for the invalid's meals, because such activities would be incidental to the primary care duties. This interpretation is in accord with the holding of a California Court of Appeals case which addressed a very similar issue, McCallister v. Worker's Compensation Appeals Board , App., 132 Cal. Rptr. 527 (1976) . It is also in accord with the long-standing admonition of our Wisconsin Supreme Court that worker's compensation statutes must be liberally construed in favor of including all services that can reasonably be said to come within the statute. See Grant County Service Bureau, Inc. v. Industrial Commission, 25 Wis. 2d 579, 52, 131 N.W.2d 293 (19 64). If the applicant had been hired for the specific purpose of performing' regular cooking, cleaning or other duties commonly associated with the meaning of the term "domestic servant," her employment would have come within the exclusion of section 102.07 (4), Stats. However, she was employed exclusively as a primary care giver for her invald sister, not as a cook, cleaning person, or other form of domestic servant.

The question remains whether the applicant performed her services for the Vandeveer Family Trust, as represented by Marine Trust Company. In other words, did an employer-employe relationship exist between the applicant and the Trust or Marine Trust Company? The primary test for determining the existence of an employer-employe relationship is whether the alleged employer has a right to control the details of the work; and among the secondary tests to be considered are: (1) the direct evidence of the exercise of the right of control; (2) the method of payment of compensation; (3) the furnishing of equipment or tools for the performance of the work; and (4) the right to fire or terminate the relationship. See Kress Packing Company v. Kottwitz , 61 Wis.2d 175, 182, 212 N.W.2d 97 (1973). The applicant's sister was at all times able to administer her own affairs, and at all times she reserved the right to control the details of the applicant's employment. She hired the applicant, arranged for her payment by requesting and authorizing wages from the Trust, and retained the right to terminate the employment relationship. The Trust merely acted as conservator and manager of the trust funds. Clearly, neither the Trust nor Marine Trust Company was the applicant's employer. The application must therefore be dismissed against the Vandeveer Family Trust and Marine Trust Company. This would not preclude the applicant from filing an application naming her sister as the employer.

NOW, THEREFORE, this

0 R D E R

The Findings and Order of the Administrative Law Judge are set aside and the Findings and Order of the Commission are substituted therefor. The application as filed against Harley Vandeveer Family Trust and Marine Trust Company is hereby dismissed.

Dated and mailed February 28, 1989
ND � 2.10 � 2.11

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

cc:
Robert E. Neseman, Attorney
Di Renzo and Bomier

R. J. Gould, Attorney
Surplice and Gould

185: CD0556

Appealed to Circuit Court. Affirmed December 14, 1989. Appealed to Court of Appeals. Affirmed (unpublished) October 23, 1990.

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