Opinion
Docket No. 81963.
Decided February 19, 1986. Leave to appeal granted, 425 Mich. 871.
Pianin, Graber Paull, P.C. (by Michael Sugar), for plaintiff.
Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills Poling, P.C. (by James A. Sullivan), for defendant.
Defendant Department of Social Services appeals by leave granted from a Worker's Compensation Appeal Board order which affirmed the decision of a hearing referee, granting disability compensation benefits to plaintiff.
According to the record, in 1976, plaintiff learned through a neighbor that Mrs. Willie L. Johnson, an invalid neighbor for whom plaintiff had run errands before, needed somebody to care for her. That same morning, Mrs. Johnson called plaintiff about the position and scheduled an interview between plaintiff and a Mr. Emberg from DSS. After the interview, Mr. Emberg had plaintiff sign some papers and then he hired her. He explained to plaintiff that her job was to see after Mrs. Johnson's needs by doing her laundry, house-cleaning, running her errands, taking her to the doctor, and providing personal care.
Plaintiff began working immediately. She generally worked from 9 a.m. to 5 p.m. but would come in during her off hours if Mrs. Johnson needed her. While she was at Mrs. Johnson's home, she generally did whatever Mrs. Johnson instructed her to do.
At least once a month a DSS worker would come to Mrs. Johnson's home and remind plaintiff of her duties. If plaintiff encountered a problem on the job she would contact the DSS.
Plaintiff was paid monthly by a check drawn on the DSS and issued to her and Mrs. Johnson. Consequently, in order for plaintiff to be paid, Mrs. Johnson had to endorse the check.
In 1978, plaintiff slipped and fell down the basement stairs at Mrs. Johnson's home sustaining injury to her back. DSS was notified of this injury. Shortly thereafter, she was hospitalized for the back injury and high blood pressure. She returned to her job but continued to experience pain.
Due to the injury, DSS reduced her hours to 9 a.m. to 2 p.m. each day. Plaintiff was informed of her change of hours by a DSS caseworker. However, plaintiff eventually stopped working because the work was too strenuous for her. She notified DSS about her decision to leave the employment and her reasons for it.
The WCAB affirmed the award of workers' compensation benefits, finding that plaintiff was an employee of DSS and that she was injured in the course of that employment. We affirm.
Findings of fact in a workers' compensation proceeding are conclusive in the absence of fraud. Const 1963, art 6, § 28; MCL 418.861; MSA 17.237(861). The question of whether defendant was plaintiff's employer for purposes of workers' compensation, however, is an issue of law for the court to decide. Askew v Macomber, 398 Mich. 212, 217; 247 N.W.2d 288 (1976); Renfroe v Higgins Rack Coating Manufacturing Co, Inc, 17 Mich. App. 259, 262; 169 N.W.2d 326 (1969). In determining whether defendant is plaintiff's employer, this Court utilizes the economic reality test. Wells v Firestone Tire Rubber Co, 421 Mich. 641, 647; 364 N.W.2d 670 (1984); Askew v Macomber, supra, p 217. Under this test, the following factors are considered: "(1) control of a worker's duties, (2) the payment of wages, (3) the right to hire and fire and the right to discipline, and (4) the performance of the duties as an integral part of the employer's business towards the accomplishment of a common goal." Askew v Macomber, supra, pp 217-218. This test views the elements as a whole and "in relation to the statutory scheme of workers' compensation law with the goal of preserving and securing the rights and privileges of all parties". Wells, supra, p 648, quoting Farrell v Dearborn Mfg Co, 416 Mich. 267; 330 N.W.2d 397 (1982). Primacy is assigned to no single factor and no one factor is controlling. Id.
The hearing referee set forth the following indicia to substantiate her conclusion that plaintiff was an employee of DSS:
"(1) [N]o explicit agency agreement has been shown to exist between defendant and Mrs. Johnson. (2) Plaintiff received her wages by means of a check drawn on defendant and payable to her and Mrs. Johnson. (3) Prior to employment plaintiff was interviewed by defendant's agent who also explained the job duties. (4) Defendant's agents would observe plaintiff's job performance monthly and if any problem arose plaintiff would contact defendant."
In affirming the decision of the hearing referee, the WCAB found this Court's decision in Morin v Dep't of Social Services, 134 Mich. App. 834; 352 N.W.2d 325 (1984), on rehearing 138 Mich. App. 482; 361 N.W.2d 13 (1984), lv den 422 Mich. 909 (1985), distinguishable from the instant case. In Morin, the plaintiff was certified by DSS as a day-care aide and hired by June Radomski, an ADC recipient. Radomski was provided with a list of certified aides from which she selected the plaintiff. DSS paid the plaintiff by way of check made payable to both the plaintiff and Radomski. While the plaintiff was driving Radomski's children to Radomski's place of employment, she was involved in an automobile accident and sustained injuries. A workers' compensation claim was filed against DSS. The hearing referee found the plaintiff to be an employee of DSS. The WCAB, however, reversed, finding that the plaintiff was an independent contractor hired by Radomski and not an employee of DSS.
This Court agreed. It found that DSS exerted no control over the plaintiff's duties nor did it have the right to hire or fire the plaintiff. It further found that the plaintiff was to be paid through Radomski since the draft was made payable to both. The Court also noted that the plaintiff held herself out to the public as a babysitter, a job usually performed in the capacity of a contractor.
In the case sub judice, the WCAB recognized that some similarities existed between the facts in the present case and those in Morin but did not find the similarities dispositive. The WCAB noted that unlike the case in Morin, the DSS in the instant case played a more direct role in hiring plaintiff. Plaintiff was not selected by Mrs. Johnson from a list provided by DSS as was the plaintiff in Morin. Rather, a DSS caseworker directly hired the plaintiff and instructed her about her duties.
The WCAB further noted the lack of evidence establishing that the present plaintiff held herself out to the public as a nurse's aide or housekeeper or that she performed such services for others. Therefore, there was no basis for concluding that plaintiff was an independent contractor like the plaintiff in Morin.
In addition, the WCAB found that, unlike in the case at bar, the DSS exerted no control over Morin's duties and had no right to hire or fire her.
Finally, the WCAB acknowledged that the manner of payment in the present case was identical to the method of payment in Morin. It did not believe, however, that this single factor was controlling, given that the economic reality test views the elements as a whole, "assigning primacy to no single one". Farrell, supra, p 276, quoting Schulte v American Box Board Co, 358 Mich. 21, 33; 99 N.W.2d 367 (1959).
We agree with the WCAB opinion that Morin is distinguishable from the case at bar and therefore is not controlling.
Defendant draws our attention to Richardson v Dep't of Social Services, (docket no. 62405, decided April 14, 1983 [unreported]), reversing 1981 WCAB 1562, lv den 418 Mich. 883 (1983), claiming that the facts of that case are almost identical to the instant case and urging this Court to adopt the reasoning therein. We decline to do so, and remind bench and bar that under MCR 7.215(C) our unpublished opinions are not precedentially binding. See Stine v Continental Casualty Co, 419 Mich. 89, 95, fn 2; 349 N.W.2d 127 (1984).
We also note that the facts in this case are distinguishable from those in Richardson.
In the case at bar, Mrs. Johnson did not hire plaintiff. Although plaintiff was interviewed at Mrs. Johnson's suggestion, she was hired by DSS who informed her that her responsibility was to care for Mrs. Johnson's needs. Also, while plaintiff's day-to-day duties were supervised by Mrs. Johnson, a caseworker visited the Johnson household at least once a month and reviewed plaintiff's performance. Further, after plaintiff was injured, her hours were shortened by the DSS, not by Mrs. Johnson. Moreover, plaintiff informed the DSS that her injury prevented her from continuing her employment.
Concerning the manner in which plaintiff was paid, we note that the "reality" was that plaintiff was compensated by defendant. See Morin, supra, p 846 (CYNAR, J., concurring). We also believe that the services plaintiff performed are part of the social welfare system's broader goal of promoting client self-sufficiency. Therefore, we are compelled to find that plaintiff's services were an integral part of DSS business. Id.
Viewing the facts of this case as a whole, we conclude that the plaintiff herein was employed by defendant for purposes of the Worker's Disability Compensation Act.
Defendant asserts that finding plaintiff to be an employee of the Michigan Department of Social Services would contravene the Michigan Constitution. We disagree.
Const 1963, art 11, § 5, generally provides that qualifications for state civil service positions shall be determined by competitive performance, exclusively based on merit, efficiency and fitness. June v Dep't of Health, 345 Mich. 359, 368; 75 N.W.2d 804 (1956); Reed v Civil Service Comm, 301 Mich. 137, 156; 3 N.W.2d 41 (1942). Defendant argues that plaintiff's position was neither established nor filled in compliance with this provision.
We note that defendant did not raise this issue below and no evidence was presented on it. However, the lack of such evidence does not preclude disposition of the issue as a matter of law.
Employee, for purposes of the workers' compensation statute, MCL 418.161(1)(a); MSA 17.237(161)(1)(a), is defined in pertinent part as:
"A person in the service of the state, a county, city, township, village, or school district, under any appointment, or contract of hire, express or implied, oral or written."
In Gottlieb v Arrow Door Co, 364 Mich. 450, 453; 110 N.W.2d 767 (1961), our Supreme Court noted the genesis of the Worker's Disability Compensation Act:
"The compensation laws arose from the conviction of our people that the burden of industrial injuries should be borne not exclusively by the victim and his family, but in part 'by those who profit by the industry.' See the messages of President Theodore Roosevelt to Congress, reported in 41 Cong Rec 22, 26; 42 Cong Rec 68, 72, 1347. Since all who work in the industry are necessary to the supply of the article, the injuries of all, in the words of Judge Learned Hand, 'are part of the cost of producing that supply, and compensation for them is within the scheme,' unless, of course, otherwise excluded by the terms of the act." (Footnote omitted.)
We note that the Worker's Disability Compensation Act does not provide that employees of the state are excluded from benefits if they do not fill a classified civil service position. Moreover, we find that awarding such a plaintiff benefits does not contravene the purpose of the Civil Service provision in art 11, § 5 of the Constitution which was to eliminate the evils of the spoils system which had politicized all levels of state government and improve administration of the civil service. Council No 11, American Federation of State, County, Municipal Employees, AFL-CIO v Civil Service Comm, 87 Mich. App. 420; 274 N.W.2d 804 (1978), aff'd 408 Mich. 385; 292 N.W.2d 442 (1980); Reed v Civil Service Comm, supra, p 154. Therefore, defendant's argument is without merit.
Plaintiff argues alternatively that defendant could be liable for plaintiff's workers' compensation if it was found to be a statutory principal. MCL 418.171(i); MSA 17.237(171)(1) provides in pertinent part as follows:
"If any employer subject to the provisions of this act, in this section referred to as the principal, contracts with any other person, in this section referred to as the contractor, who is not subject to this act or who has not complied with the provisions of section 611, and who does not become subject to this act or comply with the provisions of section 611 prior to the date of the injury or death for which claim is made for the execution by or under the contract or of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him."
Liability as a statutory principal is premised on the following elements:
"(1) DSS must be subject to the provisions of the Worker's Disability Compensation Act of 1969, (2) * * * [the contractor] must not be subject to the act or must not have secured workers' compensation coverage, (3) there must be a contract between DSS and * * * [the contractor] regarding plaintiff's services, and (4) plaintiff's injuries must have occurred while performing work under the contract between DSS and * * * [the contractor]. Davidson v Wayne County Bd of Road Comm'rs, 86 Mich. App. 592, 597-598; 272 N.W.2d 740 (1978)." 134 Mich. App. 842-843.
In the instant case, the issue of whether DSS was a statutory employer was not addressed by the WCAB. Nor are we able to dispose of this issue based upon the record before us. We need not remand this case for findings on this issue, however, given our conclusion under the economic realities test that plaintiff was employed by DSS.
Affirmed.