Soup, Soap and Salvation -- Delaware IAB Rules That Salvation Army Rehab Program Participant Is Not an Employee

Soup, Soap and Salvation -- Delaware IAB Rules That Salvation Army Rehab Program Participant Is Not an Employee

Let me start by saying if you think the goings on in Delaware are of small import, I just discovered that The Detour & Frolic has readers in Australia.  We are the trend setters for not only the rest of the U.S.,  but the rest of the world.....who'd have thought?  I heard from and have been discoursing with Andrea Hackwill who holds the title of "Personal Injury Impairment Specialist" in the land down under and although Andrea is not a doctor or lawyer, her expertise is formally recognized by government agencies.  I think we could use Andrea's knowledge here and it tickled me to discover that she is always looking to the States and their interpretation of the Guides.  In Australia, they still use the 4th Edition of the AMA Guides (I guess they have that in common with Maryland, huh?)  She promised to let me know if she came across anything valuing or discussing thrombotic disorder as an impairment.

Which by the way, is more that I can say for y'all.  Other than a case offered by attorney Eric Boyle that was mildly interesting but did not deal with a "funky body part", no one replied to my call for copies of cases rating the lesser known parts of the human anatomy.  People, don't you know it takes a village to build a permanency chart? So I will ask again.....nicely.

Now for the case du jour.  Leave it to attorneys Ken Carmine and Keri Morris to present something that takes us away from the ad nauseum supply of cases adjudicating UR appeals.  This case conjured up images of Christmas and those guys ringing the bell in front of the big kettle at Christmas time.  And the case is Jason Kincaid v. Salvation Army Adult Rehabilitation Center, IAB # 1352146 (1/31/11).  Authored by Chief Hearing Officer Chris Baum, once again we have a veritable treatise of all law that is even tangential to this topic.  Bravo, Chris!  A copy of this is a real keeper....the issue might not crop up again for another decade but when it does, you will be ready.

The issue?

Is the claimant's participation in the Salvation Army ARC program sufficient to render him an "employee" entitled to workers' compensation benefits?

The facts in brief—

Claimant was admitted to the Salvation Army rehabilitation program.  He would live "inside the program" and the Salvation Army would supply room and board as well as $5.00 weekly for "working."  He was required to sign a "Beneficiary Application for Admission" acknowledging that he was seeking help with drug abuse, unemployment and homelessness.  This document contained a statement that "I am not an employee of this Center".  Claimant had a mentor for the "work therapy" portion of his rehab.  Working was a mandate of the program and would commence in the warehouse followed by a stint in the kitchen.  The work would consume over 40 hours weekly and consist of food prep, mopping floors, and operating an after-hours snack shop in the Canteen.  The work duties were described as "in furtherance of my rehabilitation."

So how does the law work?

Mr. Baum (sitting with Board members Groundland and Shannon) starts off his analysis with the statutory definition of an "employee" with reference to 19 Del. Code Section 2301(10) and also examines the statutory exclusions to employee status to include casual employment, prison inmates and certain classes of sports officials.  There is also in our statute, I learned, an "exception to the exception" for persons on public assistance who are required to work through the Department of Public Welfare.  The Board observes that "the similarities to the current case are striking but claimant does not technically fit this provision because he was not receiving aid through the Department of Public Welfare, but rather through Salvation Army."

There is discussion of the common law test of contract of hire and three approaches to same-- the "Common Law Test", the "Relative- Nature- of- the- Work Test", and "the Spikes Test."  These are all examined in copious detail and the Board concludes that the determination of whether claimant is entitled to "employee" status pivots on whether it can be said that he was being paid "wages" for his participation in work therapy.

The next discussion is that of what constitutes "valuable consideration."  Claimant argued that his compensation consisted of his room and board as well as the $5.00 weekly added to his Canteen card.  Acknowledging that "valuable consideration" need not be limited to monetary payment but can consist of anything for value including vocational training, the Board concluded that the work tasks were in fact a form of therapy, rather than practical training as recognized in the case law it examined.  Simply stated, "Claimant is not receiving any sort of true job training or vocational education at Salvation Army."  Moreover,  for the receipt of services involving  rehabilitation to be considered "valuable consideration", "then  every person who receives any sort of rehabilitative therapy service (physical, mental or spiritual) would have to be considered an 'employee' of the therapy service. This is a ludicrous conclusion the Board declines to make."

I thought that this outcome would be different based on a prior case that I had a vague recall for, that being Steven Brown v. Sunday Breakfast Mission, IAB# 1264688 (7/7/05) also written by Chris Baum.  In that decision, the room and board was not considered valuable consideration but there is acknowledgement that the $8.00 a week, while minimal, would qualify.  And interestingly, that program at SBM was also called "work therapy".  The "training" in that case, which was also recognized as "consideration", included duties in a warehouse, Bible study and "basic training in performing job functions."  The same case law is examined in this case as was evaluated in Kincaid.  The conclusion in the Steven Brown case is that there was sufficient training to permit a conclusion that "valuable consideration" had been received.  There is a cautionary tone to this ruling and the observation that SBM was performing a charitable act in participating in the claimant's rehabilitation and that the decision "may have a chilling effect on the program...."  I will leave it to you to read both of these cases and ponder the how and why they are different in terms of the application of the facts to the law.  I am not entirely sure it is clear to me but I love these sorts of conundrums, so this made my day.

And kudos to Keri Morris of Marshall Dennehy for one of those rare employer-friendly outcomes.  I guess the ice is beginning to melt on that "chilling effect,"  heh?

Irreverently yours,
Cassandra Roberts 


P.S.  Our darling kitty Nutella Grace will be de-clawed next week.  Here she is with my daughter Jocelyn, better known as the "wild child."

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