Sears v. Oakwood Training Facility, Dept. of Human Resources, 80-CA-747-MR

• Decision Date: 26 September 1980
• Docket Number: No. 80-CA-747-MR,80-CA-747-MR
• Citation: 623 S.W.2d 232
• Parties: Callie SEARS, Appellant, v. OAKWOOD TRAINING FACILITY DEPARTMENT OF HUMAN RESOURCES, Commonwealth of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 232

623 S.W.2d 232

Callie SEARS, Appellant, v. OAKWOOD TRAINING FACILITY DEPARTMENT OF HUMAN RESOURCES, Commonwealth of Kentucky, Appellee.

No. 80-CA-747-MR

Court of Appeals of Kentucky.

Sept. 26, 1980.

Charles J. McEnroe, Mandt, McEnroe & Polk, Somerset, for appellant.

James S. Carroll, Carroll & Knippenberg, Lexington, for appellee.

Before COOPER, LESTER and WINTERSHEIMER, JJ.

LESTER, Judge.

This is an appeal from a judgment of the Pulaski Circuit Court affirming an opinion and award of the Kentucky Workmen's Compensation Board, which determined that appellant was not an employe of the appellee within the meaning of KRS 342.640.

Appellant was a sixty-seven-year-old widow receiving Social Security benefits and Railroad Retirement when she became involved in a federally-funded program known as "Foster Grandparents." 42 U.S.C. § 5011 (1973). The stated purpose of the program, involving low-income persons aged sixty or over, is to

provide supportive person-to-person services in health, education, welfare, and related settings to children having exceptional needs, including services by individuals serving as "foster grandparents" to children receiving care in hospitals, homes for dependent and neglected children, or other establishments providing care for children with special needs. 42 U.S.C. § 5011(a).

Appellant participated in this program, working at the Oakwood Training Facility in Somerset, Kentucky. As part of her duties, she was assigned to two of the residents, trainable retarded children, who she entertained and worked with for approximately four hours per day five days a week. Appellant was required to work twenty hours per week for which she received $1.60 per hour, plus lunch at Oakwood and $1.00 per day for transportation. Other benefits of her work there included coverage under an accident insurance policy and a free annual physical examination.

With respect to the administration of the Foster Grandparents Program in Kentucky, there was testimony that an employe of the Kentucky Department of Human Resources (DHR) was designated as acting director for the program in the Commonwealth. Furthermore, DHR was the recipient of a grant from the federal government for this program, which grant called for one hundred thirty-three volunteers, aged sixty or over, in low-income brackets, to be placed in three state facilities, one of which was Oakwood. Testimony at the hearing also disclosed that Mrs. Sears performed her duties under the direction of an employe of Oakwood.

On September 9, 1977, appellant was required to attend a staff meeting of the foster grandparents and their supervisor at Oakwood. At the conclusion of the meeting, appellant, who was walking to lunch across a concrete playground at the facility, slipped and fell fracturing her left hip. The fracture necessitated hospitalization and surgery for replacement of the upper portion of the hip by a prosthetic device. Subsequent to the surgery, appellant has suffered from a persistent limp and her surgeon testified that there would always be some degree of permanent weakness on her left side. Mrs. Sears herself testified as to her difficulty in movement due to pain and stiffness in her hip. Also, appellant has not returned to the program since her accident nor has she been able to perform her own housework and yardwork as she did prior to her accident.

Appellant argued before the Board that she qualified as an employe under the Workmen's Compensation Act and therefore, was entitled to its benefits. Under the statute, "employes" include "every person ... in the service of an...