Kansas High Court Rules Injured Worker Is Employer of Personal Care Attendants

A severely injured worker receiving workers' compensation benefits, including help from personal care attendants, is the employer of the attendants and therefore responsible for paying unemployment insurance taxes on their behalf, the Kansas Supreme Court ruled Oct. 19, addressing an issue of first impression (Hartford Underwriters Ins. Co. v. Kansas Dep't of Human Resources, Kan., No. 86,268, 10/19/01).

The Supreme Court rejected quadriplegic Rick Meier's arguments that he merely is a consumer of home health care services and that his personal care attendants are independent contractors paid for by Hartford Underwriters Insurance Co. Justice Tyler C. Lockett acknowledged that Meier presented "a compelling public policy argument," but the judge agreed with the Kansas Department of Human Resources that the attendants are employees because Meier controls the means and manner of their performance of the work.

One of Meier's former personal care attendants filed a claim for unemployment compensation and named Meier as her former employer. He contested the claim. A KDHR field officer found that Meier was the employer and subject to the Kansas Employment Security Law. Meier lost successive appeals before a KDHR hearing officer and the Secretary of KDHR. However, the Barton County District Court ruled that the attendant was an independent contractor not entitled to unemployment benefits.

Workers' Comp Judge Ordered Nursing Services

Meier, who has some use of both arms but no fine motor coordination of his hands and no use of his legs, needs assistance with personal care and daily activities. A workers' compensation administrative law judge ordered that Meier's former employer and its workers' compensation insurance carrier, Hartford,provide Meier with nursing services.

Hartford pays for the advertising to locate personal care attendants for Meier and dictates the amount they are paid and the number of hours they work. Attendants in the past all signed forms stating they were independent contractors. Meier interviews and selects attendants, prepares a job description and list of job duties, and directs the manner in which attendants perform services for him. He schedules when they arrive and depart.

The district court found that the attendants "are nothing more than health care providers" giving services required to be paid for by Hartford. The district court acknowledged that Meier exercises control over the attendants in how they help him with his daily activities, but the court emphasized that Meier has no choice as to whether to use attendants. "This Court cannot believe it was the intent or it should be the interpretation" that Meier is the employer of the attendants, the district court said.

Employee Versus Independent Contractor

The Kansas Employment Security Law defines "employment" to include service performed by an individual who is an employee under common law rules. The statute also provides: Services performed by an individual for wages or under any contract of hire shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the secretary that: (i) Such individual has been and will continue to be free from control or direction over the performance of such services, both under the individual's contract of hire and in fact; and (ii)such service is either outside the usual course of the business for which such service is performed or that such service is performed outside all of the places of business of the enterprise for which such service is performed.

"[T]here is no absolute rule for determining whether an individual is an independent contractor or an employee," Lockett said, explaining that the determination turns on the facts and circumstances of each case. "[A]n independent contractor is defined as one who, in exercising independent employment, contracts to do certain work according to his or her own methods, without being subject to the control of the employer, except as to the results or products of his or her work," the judge said. In contrast, "[t]he primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished."

Meier argued that if the court decided he was the attendants' employer, Hartford would want to obtain that status by assuming complete control over the attendants, thereby taking away much of his autonomy over his personal care. "We agree with the district court that Meier states a compelling public policy argument in urging this court to find that the personal care attendants are independent contractors of Hartford, rather than his employees," Lockett said. He found that under the independent-living model developed by disability advocates, the disabled person is in charge of deciding what services to receive.

Finding that the Kansas Supreme Court had never addressed the issue of the employment status of personal care assistants paid by third parties, Lockett looked to other state courts' rulings. In Latimer v. Administrator, 579 A.2d 497 (Conn. 1990), the Connecticut Supreme Court ruled that a stroke patient owed unemployment tax contributions on behalf of personal care assistants who provided services in his home. The Minnesota Court of Appeals decided in Lewis v. Commissioner of Jobs and Training, 425 N.W.2d 309 (Minn. Ct. App. 1988), that health care assistants were employees for unemployment compensation purposes of a person who received home services.

In Locke v. Lonacre, 772 P.2d 685 (Colo. Ct. App. 1989), the Colorado Court of Appeals decided that a home health care worker who was injured in a patient's home was an employee covered by workers' compensation, despite a written agreement purporting to create an independent contractor relationship. However, a New Jersey Superior Court in Swillings v. Mahendroo, 620 A.2d 452 (N.J. Super. Ct. 1993), decided that a nurse providing in-home care was an independent contractor not entitled to workers' compensation benefits.

"The error in the district court's analysis is that the court examined Meier's control over the circumstances that require him to have assistants, not Meier's control over the means and manner the attendants perform their jobs," Lockett said. He found that Meier hired, trained, and supervised the attendants, set their work hours, controlled the order and sequence of their work, furnished the necessary equipment and supplies, and retained the right to terminate them. For purposes of the Kansas Employment Security Law, Meier is the employer of the attendants, Lockett decided.

KDHR attorney Dan Doesken represented the agency. M. John Carpenter of Great Bend, Kan., represented Meier. Thomas R. Hill of Hill, Beam-Ward & Kruse in Overland Park, Kan., represented Hartford.