Teresa Parks v. Independent Living Center of Southeast Missouri

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 10-069477

Employee: Teresa C. Parks

Employer: Independent Living Center of Southeast Missouri

Insurer: Missouri Employers Mutual Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Was Teresa Parks an "employee" under the Missouri Workers' Compensation Law? Section 287.020.1 RSMo provides, in relevant part, as follows:

The word "employee" as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election ...

The Missouri courts have articulated the following test for determining whether a paid worker is an "employee" under the foregoing definition:

A claimant establishes an employer/employee relationship if the claimant worked in the service of the alleged employer and the employer controlled these services. The pivotal question in determining the existence of an employer-employee relationship is whether the employer had the right to control the means and manner of the service, as distinguished from controlling the ultimate results of the service. While a claimant's employment status must be determined on the facts of each case, several factors must be examined to determine if a right to control existed. These factors include: (1) the extent of control, (2) the actual exercise of control, (3) the duration of the employment, (4) the right to discharge, (5) the method of payment, (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is the regular business of the alleged employer, and (8) the employment contract. Each factor is relevant to the issue, but no one factor is dispositive.

DiMaggio v. Johnston Audio/D\&M Sound, 19 S.W.3d 185, 189 (Mo. App. 2000)(citations omitted).

Teresa Parks alleges she was an employee of the Independent Living Center (ILC) when she provided personal care attendant services to Gregory Donnellan. ILC is a non-profit organization in the business of helping elderly and disabled individuals stay in their own

residences instead of going to nursing homes. ILC is a vendor contracted with the Missouri Department of Health and Senior Services to arrange for workers to provide services under the Consumer Directed Services (CDS) program. It was under the CDS program that Ms. Parks provided her services to Mr. Donnellan. In order to determine whether ILC exercised sufficient control over Ms. Parks to render her an "employee" under the law, we will separately analyze each of the 8 factors enumerated above.

Ms. Parks testified that when she began providing services to Mr. Donnellan, ILC told her how many days and hours she could work and what services she could and could not perform for Mr. Donnellan, but she also agreed on cross-examination that ultimately the amount of hours she worked and the scope of the services she performed were dictated by Medicaid under the CDS program. Employer's witness, Lisa Holmes, the director of CDS programs for ILC, testified that ILC has no input whatsoever in determining the services that Ms. Parks provided for Mr. Donnellan. We find that Medicaid dictated the number of hours Ms. Parks worked and the services she was permitted to perform for Mr. Donnellan under the CDS program, and that ILC merely communicated these terms to Ms. Parks at the outset of the work relationship.

Mr. Donnellan, rather than ILC, instructed Ms. Parks as to when he needed services performed, and thus dictated her day-to-day work schedule. If Ms. Parks needed a day off from work, she first asked Mr. Donnellan if this was okay, then notified ILC so that ILC could find a replacement. Ms. Parks testified that if ILC could not find a replacement, it was her understanding that she was required to show up for work, but she did not identify any source for this understanding, and also indicated that every time she needed a day off, she was able to take a day off. Ms. Holmes testified that Ms. Parks was not required to contact ILC if she needed a day off. Ms. Holmes's testimony strikes us as more certain and persuasive as to this factual issue. We find that ILC did not have any control over Ms. Parks's day-to-day work schedule or whether she took a day off.

Ms. Holmes testified that Mr. Donnellan, rather than ILC, would have provided any training that Ms. Parks needed and that ILC does not provide any training to personal care attendants like Ms. Parks. We note that Ms. Parks did not offer any testimony relative to the issue of training or whether there were particular guidelines or procedures she was required to follow. We find that ILC did not provide Ms. Parks with any training.

In light of the above considerations, this factor suggests there was not an employment relationship between Ms. Parks and ILC.

Ms. Parks performed her services for Mr. Donnellan without any supervision from a representative of ILC. Ms. Parks did not submit any reports to ILC apart from her timesheets, although Ms. Parks believed she was supposed to contact ILC if Mr. Donnellan went to the hospital. Ms. Parks initially testified that all of her "directions" came from ILC, but agreed on cross-examination that when it came to daily activities, Mr. Donnellan directed her as to what he needed done, and that the only constraint on her activities was whether they fell within the scope of services dictated by Medicaid through the CDS program. A representative from ILC was expected to periodically visit Mr. Donnellan's

residence to check up on him, but there is no evidence that this individual had any implied or express authority to direct Ms. Parks in the performance of her services. We find that Mr. Donnellan directed Ms. Parks in all of her activities, and that Ms. Parks did not receive any instructions or supervision from ILC beyond the initial explanation as to the scope of services covered under Medicaid's CDS program. This factor suggests that there was no employment relationship between Ms. Parks and ILC.

Ms. Parks testified that she provided services under the CDS program through ILC for her brother and for another individual in the past, but she did not provide any testimony or other evidence to establish the duration of these particular work relationships. It appears from Ms. Parks's timesheets set forth in Employer's Exhibit 3 (and we so find) that Ms. Parks worked for Mr. Donnellan for only about 4 months from May 3, 2010, through August 24, 2010. Because Ms. Parks failed to prove the duration of her previous periods of performing services under the CDS program through ILC, and only worked for Mr. Donnellan for about 4 months, we do not deem this factor to be indicative of an employment relationship between Ms. Parks and ILC.

Ms. Holmes testified that nobody at ILC had the right to discharge Ms. Parks from employment; Ms. Parks did not offer any contrary testimony. We find that ILC did not have the right to discharge Ms. Parks. This factor suggests there was no employment relationship between Ms. Parks and ILC.

Ms. Parks received her paychecks by filling out timesheets provided by ILC, presenting them to Mr. Donnellan for a signature, and then submitting them to ILC. ILC paid Ms. Parks $8.00 per hour on a biweekly basis for her services rendered to Mr. Donnellan. ILC withheld taxes from Ms. Parks's paychecks. ILC's executive director was responsible for determining the hourly rate of pay. This factor suggests there was an employment relationship between Ms. Parks and ILC.

Ms. Parks did not use any equipment furnished by ILC with the exception of the timesheets provided to her for recording her hours. Instead, Ms. Parks used equipment and supplies provided by Mr. Donnellan to perform her services. Ms. Parks also used her own personal vehicle to drive Mr. Donnellan for errands, and did not receive any reimbursement for her mileage or gas expenses. This factor suggests there was no employment relationship between Ms. Parks and ILC.

As noted above, ILC is a non-profit organization in the business of helping the elderly and disabled stay in their own residences instead of going to nursing homes. It was part of ILC's normal business to arrange for workers to provide services to elderly or disabled individuals under the CDS program, and the work Ms. Parks performed for Mr. Donnellan was thus within the regular business of ILC. This factor is indicative of an employment relationship between Ms. Parks and ILC.

Ms. Parks did not present a copy of any written contract between herself and ILC, or provide testimony specific to the issue whether there was any employment agreement between herself and any representative of ILC. Ms. Parks did provide testimony suggesting there was an agreement between herself and Mr. Donnellan that she would provide services to him through the CDS program, and that she approached ILC in order to effectuate that agreement, but we find insufficient evidence to support a finding that Ms. Parks had any employment agreement with ILC. This factor suggests there was no employment relationship between Ms. Parks and ILC.

Only 2 of the foregoing 8 factors suggest that ILC exercised, or retained the right to exercise, control over the manner and means whereby Teresa Parks performed her services. We find that the role of ILC in this work relationship was limited solely to processing Ms. Parks's initial request to participate in the CDS program, educating and training Mr. Donnellan regarding the scope of Medicaid-approved services, receiving and processing Ms. Parks's time sheets, and administering payroll to Ms. Parks. We are persuaded (and we so find) that ILC did not have the right to control the manner and means whereby Ms. Parks performed her services for Mr. Donnellan. We conclude, therefore, that Teresa Parks was not an "employee" for purposes of § 287.020.1. ${ }^{1}$

We affirm and adopt the award of the administrative law judge with this supplemental opinion.

The award and decision of Administrative Law Judge Gary L. Robbins, issued December 17, 2013, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $30^{\text {th }}$ day of July 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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[^0]: ${ }^{1}$ We note that the administrative law judge concluded that certain provisions under the Quality Homecare Act are preclusive of a finding that Teresa Parks was an employee. Having resolved of this matter by applying § 287.020.1 and the well-established case law interpreting the meaning of "employee" under that subsection, we deem it unnecessary to consider whether § 208.862 RSMo supersedes the Missouri Workers' Compensation Law.

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable