(concurring in result in part; dissenting in part).
Reading is a rather subtle happiness which produces joy that does not seem to be dulled by age. It is somewhat of an unpunishable vice when one reads for recreation. However, it can prove to be a punishing lot for the appellate judge.
I read in this opinion written by Wuest, J., that registered nurses (RN’s), licensed practical nurses (LPN) and nurse’s aides are “care providers.” In fact, they are so denominated, and that phrase appears, 36 times throughout the writing.
I was always of the opinion that nursing was a profession and imbued with a high calling to watch over and care for the ill. I highly respect them, inter alia, for the care they have given to society and members of my family, to include myself. Doctor was often gone but nurse was everpresent. To the Florence Nightingales, I tip my hat. Our State Legislature, expressing the sovereign will, has been fully cognizant of their educational needs and professional standards. SDCL 36-9-1.1. A professional Board of Nursing is established under *660SDCL 36-9-7. Sioux Falls, from whence this litigation sprung, is the largest city in our state and I recognize the worth and dedication of these nurses, be they male or female and irrespective of their designation as an RN, LPN or nurse’s aide.
Back to reading. One can read so much legal formulae, terms, and phrases pouring from the reservoirs of formal law. I read in the Department of Labor’s decision that these people are “workers.” The Department refers to them, again and again, as “workers.” In the Department of Labor’s brief to this Court, they are called “nurses.” In appellant’s briefing, they are denominated as being nurses and nurse’s aides and occasionally referred to as “health care providers.” When the appellate reviewer reads the Administrative Law Judge’s decision, they are called “employees.” Circuit Court Judge Kean termed them “workers.” Hendrickson’s contract with them called them “independent contractors” to which the nurses, referring to their nurses services, acceeded to being called “independent contractors” and also “nurses.”
It is my understanding from reading these briefs and the decisions made below, that we are confronted with this question: What is the legal status of these “individuals?” Of the many terms ascribed to them, which term truly identifies their legal status?
It is noted in the majority writing of Wuest, J., that intermittently nurses are referred to as he, she, herself and her. Nurses may be male or female in point of fact and under the law.
These individuals, in my opinion, were nurses and they were receiving wages for their services. They deserve their rightful, professional status. They did not receive the money from the sick people they attended. The money was sent directly to Hendrickson by the sick person. Hendrick-son was handling the money and sent the money back to the nurses for their hourly wages, which they earned as a result of providing nursing services. This payment was by the week. Most importantly, Hen-drickson established the charge for the nurse’s time spent with the sick person. Therefore, this case is clearly distinguishable from Matter of Balhorn-Moyle Petroleum Co., 315 N.W.2d 481 (S.D.1982).
Under SDCL 61-1-11, these individuals were nurses “customarily engaged” in an independently established profession. However, they could not meet the exception that as nurses, they were free from the control or direction of Hendrickson’s Health Care Service. In my opinion, the majority opinion has used a term 36 times in order to cleverly supplant that term for the true role of these individuals in our society. Thus, to cast upon them the term of “care provider” seems contrary to our state statutes. This term aligns itself with “Hendrickson’s Health Care Service.” In a subtle way, this term detracts from their professional status. However, to emphasize that term by repetition — 36 times — intertwines and commingles the unifying concept of “Hendrickson’s Health Care Service” and “care providers” thereby buttressing the majority holding. These nurses should not be swept up in a generic term.
I dissent to that aspect of this decision which holds that these nurses were not customarily engaged in an independently established occupation or profession. As such, they had the right to subcontract but, under this factual scenario, they were controlled and directed in the performance of their services. Under Miller Feeds v. South Dakota Dept. of Labor, 340 N.W.2d 185 (S.D.1983), services are employment, as contemplated under SDCL 61-1-11 unless the employer satisfies every subdivision of the statute. Here, the employer failed to establish that these nurses were not free from its control.