Workers' comp deals rude lesson in liability

January 16, 1994|By Ed Brandt | Ed Brandt,Staff Writer

An elderly Baltimore County woman wandered into the murky world of workers' compensation last March, and learned a lesson every homeowner should know.

She is in her 90s, lives near her daughter in a two-bedroom home north of Towson and, except for arthritis and a heart condition, is in good health. Last January, one foot became infected, and she needed help with meals and housework. Her daughter hired a nursing assistant at $8 an hour.

On March 12, the Blizzard of '93 arrived. The woman, whose attorney would discuss her case only on the condition that her name not be used, had her driveway plowed on March 13 and 14. On March 15, she told the nursing assistant she didn't need her any more and paid her off, along with two days' extra pay.

The nursing assistant took the check and left, but returned a few minutes later. She said she had slipped and fallen on the driveway, and showed a small scrape on one finger.

On April 8, the elderly woman received notice from the Workers' Compensation Board that a claim had been filed against her.

Like most homeowners, she didn't have workers' compensation insurance. Nor did the nursing assistant, or the registry that sent her.

The claim was relatively small: approximately $1,000 in lost wages and $1,000 in medical and physical therapy expenses. The nursing assistant claimed her "whole body" had been affected by the fall, and she had back and wrist injuries.

"The lost wage claim is defined at about $1,000, but the medical costs are a ticking time bomb," says attorney William S. Tostanoski, who specializes in defending against workers' compensation claims and has been retained by the woman.

"If the nursing assistant wins her case before the workers' comp board, she can come back later and claim her condition has worsened and seek more money. It's unlimited medical liability," he said.

Even if she loses, the nursing assistant can appeal to Circuit Court and reopen the case. A Workers' Compensation statute emphasizes the danger: The medical portion of the claim is kept open for life for any condition related to the claim.

The hearing before the commission is pending. For that reason, Mr. Tostanoski asked that her name not be used. "I don't want to color the decision," he said.

The claim has already cost the homeowner $1,200 in legal fees. RTC Her lawyer is considering recommending she "compromise" on the claim before it goes to the commission.

"I would consider it a nuisance resolution, but to her, it's much more than a nuisance," he says. "A settlement would avoid long-term anxiety for her."

The homeowner's daughter said: "My mother has been terribly upset by this. She can see herself being ruined financially. She had a heart attack just before Thanksgiving, I think entirely due to this claim."

Can this happen to any homeowner?

"Sure," says Mr. Tostanoski. "Most homeowners think their homeowners' policy protects them against situations like this, and they're awakened rather rudely when they find out they aren't."

Says Rex Brookshire, director of administration for the Workers' Compensation Commission: "As a general rule, homeowners aren't judged to be employers, but every situation, when someone comes on your property to do some work, merits attention."

Mr. Brookshire called the woman's situation "unusual but not rare."

The Workers' Compensation Commission administers the workers' compensation laws by hearing claims by injured workers against their employers. All 50 states have workers' compensation laws, but they vary widely.

Maryland's 10 commissioners earn $82,000 a year and hear 33 cases a day each. They take turns traveling about the state to the site of each claim. About half the 35,000 claims filed each year are heard at the commission offices at 6 N. Liberty St. in downtown Baltimore.

All employees must be covered by workers' comp insurance. The problems arise in definitions.

How did the elderly woman fall into the workers' compensation trap?

She made two mistakes when she hired the assistant. She didn't pay the Social Security tax required when she paid the assistant $250 or more in wages in one quarter. And she made herself vulnerable to a workers' comp claim for the same reason.

Into this menage throw the words "independent contractor." Was the nursing assistant such a person, or was she the woman's employee? If the former, the woman is not liable. If the latter, she can be.

Relationship important

This difference is determined by the relationship between the two. To what extent did the woman direct the assistant's work?

The commissioner must make that determination, and as Mr. Brookshire says, "Nothing is cut and dried."

If the nursing assistant is not an independent contractor, then she could be considered a "casual employee," one where the job is not permanent or periodically regular. Workers' compensation does not cover casual employees.

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