Hospice nurse considered employee of care facility under 'normal work' test

In Nevada, subcontractors and independent contractors are generally afforded the same status as employees. However, a person is not an employer for purposes of workers' compensation if he meets two requirements.

Case name: Potter v. The Wedgewood Group, et al., No. 3:08-cv-00272-LRH-VPC (D. Nev. 10/09/09).

Ruling: The U.S. District Court, District of Nevada determined that one corporation was the "employer" of the other according to Nevada's law. Therefore, workers' compensation was the exclusive remedy available to an injured worker.

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What it means: In Nevada, subcontractors and independent contractors are generally afforded the same status as employees. However, a person is not an employer for purposes of workers' compensation if he: 1) enters into a contract with another person or business that is an independent enterprise; and 2) is not in the same trade, business, profession, or occupation as the independent enterprise.

Summary: A certified nursing assistant for a hospice provider was injured when she slipped and fell while attending to a resident at a long-term care facility. The provider and the facility had a contract in which the hospice provider and the facility acted as independent contractors. The contract stated that CNAs would provide hospice care upon request of a resident or treating physician. The nursing assistant filed a complaint alleging the facility negligently maintained its floors and sought remedies outside of workers' compensation. The court explained that for purposes of workers' compensation liability, a facility will be considered a statutory employer unless: 1) there is a contract with an "independent enterprise:" and 2) the enterprise is not in the same trade, business profession, or occupation as the employer. The court found that the facility was an independent enterprise. However, under the "normal work" test, the facility was in the same trade as the hospice provider. Therefore, it was the nursing assistant's statutory employer.

The court explained that under the "normal work" test, a court considers whether the indispensible activity of the independent enterprise is normally carried out through employees rather than independent contractors. The purpose of the inquiry is to demonstrate that a person who enters a contract with an independent enterprise in a different line of work, to perform work not "normally carried out" by the person's own employees, is not a statutory employer. The court concluded that the two entities engaged in the same trade of providing care and treatment to patients, and therefore workers' compensation was the only remedy available to the nursing assistant for her injuries.

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November 23, 2009

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