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Feather v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

March 28, 2005

KAREN FEATHER Petitioner
v.
UNINSURED EMPLOYERS' FUND Respondent DORENE LEIGH Party/Claimant.

          Submitted: January 5, 2005

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary: The long-time companion of an elderly, disabled individual hired caregivers to provide for his care, paying for that care out of the disabled person's funds. One of the caregivers was injured while working and sought workers' compensation benefits. The companion was uninsured and the claim was routed to the UEF, which accepted liability and paid benefits. The companion reimbursed the UEF for the benefits but did so under protest and then petitioned the Court for a refund of the payment on the grounds that the caregiver was an independent contractor and in any event faked her injury.

         Held: (1) The injury was real, not faked.

         (2) The caregiver was an employee, not an independent contractor, where details governing care were controlled by the employer who reserved in writing the right to dictate the details; where all supplies were furnished by the employer; and where the caregiver could be terminated at will with the employer's liability being only for the daily wages for the day on which the caregiver was terminated if any time was worked that day.

         Topics:

Independent Contractor: Presumption. A person working for another is presumed to be an employee. The presumption, however, may be rebutted by evidence demonstrating that the hiring party does not exercise or have a right of control over the work involved and the party hired is engaged in an independently established trade, occupation, profession, or business. § 39-71-120, MCA (2003).
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-120, MCA (2003). A person working for another is presumed to be an employee. The presumption, however, may be rebutted by evidence demonstrating that the hiring party does not exercise or have a right of control over the work involved and the party hired is engaged in an independently established trade, occupation, profession, or business. § 39-71-120, MCA (2003).
Independent Contractor: Elements. Under part (a) of the statutory two-part test for determining whether a worker is an independent contractor, the party hiring the worker must demonstrate that the worker is in fact free from the hiring party's control and from any right to control. In determining the right to control, four factors must be considered. Those factors are: (1) direct evidence of right or exercise of control; (2) method of payment; (3) furnishing of equipment; and (4) right to fire.
Independent Contractor: Elements. Where the party hiring a caregiver dictates the details and schedule for care, and expressly reserves the right to dictate those details, provides all supplies, and retains the right to fire at will with liability for payment of a full day's wages for any day or part of a day worked, part (a) (freedom from control) of the independent contractor test is not met and the caregiver is an employee.
Independent Contractor: Elements: Right of Control. Where the party hiring a caregiver dictates the details and schedule for care, and expressly reserves the right to dictate those details, part (a) (freedom from control) of the independent contractor test is not met and the caregiver is an employee.
Procedure: Pretrial Order. Even though a party represents herself, the Court cannot inject and consider issues which are not within the scope of even the broadest or most liberal construction of the issues framed in the pleadings and Pretrial Order.
Pro se. Even though a party represents herself, the Court cannot inject and consider issues which are not within the scope of even the broadest or most liberal construction of the issues framed in the pleadings and Pretrial Order.

         ¶1 The trial in this matter was held in Kalispell, Montana on December 8, 2004. The petitioner was present and represented herself. The respondent was represented by Mr. Joseph Nevin. The claimant was present and represented herself.

         ¶2 Exhibits: Exhibits 1 through 7, 9, 11, and 14 through 34 were admitted without objection. Exhibit 8 was admitted over objections. Exhibit 10 was admitted for impeachment purposes only. Exhibits 12 and 13 were refused.

         ¶3 Witnesses and Depositions: The petitioner, Doreen Leigh, Janelle Moon, Michael Moon, and Bernadette Rice testified. No depositions were offered.

         ¶4 Issues Presented: The issues as set forth in the Pretrial Order are as follows:

¶4a Whether Leigh was an independent contractor or an employee.
¶4b Whether Leigh faked her August 15, 2003, injury.
¶4c Whether Montana State Fund would have paid benefits to Leigh if Feather had been insured by them.

         (Pretrial Order at 5.)

         ¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         ¶6 Jerome S. DeSanto (Jerry) and the petitioner, Karen Feather (Karen or petitioner), have been companions for twenty-two years, living together during that time except when Jerry was institutionalized following illness with viral encephalitis.

         ¶7 On April 1, 1999, Jerry contracted viral encephalitis. He thereafter became disabled and unable to care for himself.

         ¶8 On the day Jerry contracted encephalitis, Karen retired from gainful employment and has not returned to work since then. Her prior jobs were as a cook, waitress, and secretary - mostly as a cook.

         ¶9 For approximately the first two years following his infection, Jerry was cared for at the Montana Veterans' Home (Veterans' Home) in Columbia Falls, Montana. During the next two years, Karen cared for him in their home. Jerry then spent approximately another two years in the Veterans' Home.

         ¶10 In May 2003, Karen again took Jerry home to care for him. She was appointed his temporary guardian but was required by the Court to employ a Certified Nurses' Assistant (CNA) as a caregiver to assist in his care. On March 23, 2004, she was appointed his guardian and conservator without restrictions. (Ex. 35.)

         ¶11 After taking Jerry home in May 2003, Karen hired caregivers to provide twenty-four hour, seven-days-a-week care to Jerry. All caregivers have been paid from Jerry's funds pursuant to a power of attorney executed by Jerry in 1999.[1] Karen is also his conservator, apparently since 1999.

         ¶12 Two caregivers worked during each week, splitting the week. Each one worked ...


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