Long v. Superior Senior Care, Inc.

427 S.W.3d 106, 2013 Ark. App. 204, 2013 WL 1226882, 2013 Ark. App. LEXIS 212
CourtCourt of Appeals of Arkansas
DecidedMarch 27, 2013
DocketNo. CA 12-927
StatusPublished

This text of 427 S.W.3d 106 (Long v. Superior Senior Care, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Long v. Superior Senior Care, Inc., 427 S.W.3d 106, 2013 Ark. App. 204, 2013 WL 1226882, 2013 Ark. App. LEXIS 212 (Ark. Ct. App. 2013).

Opinion

DAVID M. GLOVER, Judge.

hBeva Long appeals from the Commission’s denial of her claim for workers’ compensation benefits. She based her claim upon a back injury that she experienced in moving a client from a wheelchair to the bed while working for Superior Senior Care (“Superior”). Superior took the position that Long was an independent contractor, not an employee, and that, therefore, she was not covered by workers’ compensation. The Administrative Law Judge (“ALJ”) sided with Long in finding that she was an employee, not an independent contractor, but denied her claim for temporary-total disability benefits. The Commission reversed the ALJ on the employee finding, deciding instead that 'Long was an independent contractor and, as such, was not entitled to workers’ compensation benefits. Because the Commission decided that Long was not an employee, it was unnecessary for it to address the temporary-total disability decision. Long brings this ^appeal, contending that substantial evidence does not support the Commission’s decision that she was an independent contractor. We affirm.

At the hearing before the ALJ, Long testified that she started working for Superior Senior Care on September 2, 2011. She said that prior to beginning with Superior, she had worked as a CNA for Life Styles from 2003 to 2010.

She explained that her duties at Superi- or were given to her on a piece of paper before she went to see a client, that she was told she would make ten dollars an hour when she was hired, and that she did not negotiate her wage with anyone. She said that she never had been self-employed, had a business, or had business cards.

Long explained that she did not talk to the client about her duties, i.e., she did not tell the client what she would or would not do, or if certain job duties would cost more than others. She said that for this particular client, she was supposed to do cooking, light housekeeping, laundry, and help with showers and getting in and out of bed. She testified that on September 2, 2011 (her first day of work), she was helping a patient from the wheelchair to the bed when the patient “went limp.” Long stated that she grabbed the patient and felt something snap in her own middle back. She said that after she felt her back pop, she put the client in bed; told the client’s husband that she did not think she could lift his wife anymore; and that he told her to call Superior, which she did. Long stated that she talked to Jan Throg-morton (the office manager), told Jan about her back, and asked Jan if she could leave. She said that Jan told her she had to stay at the client’s house because Superior could not get anybody to cover her shift. She said she stayed there 13for two days, cooking and laundering, and that her back felt terrible. She explained that she did not go to Northwest Hospital until September 20 because she had never had back trouble before and thought it was a pulled muscle. After an MRI, X-rays, and pain medications, the doctor gave her a brace, which she said she had been wearing for six months to keep her spine straight. She said she took it off to sleep. She stated that she could not stand or sit for twenty minutes, that she had not been back to work because she could not physically do the job, and that she had not been back to a doctor because she doesn’t have the money.

Long explained that the Self-Employment Agreement she signed provided that she could reject all or any portion of a client referral for any reason, yet when she attempted to do so after hurting her back, Superior told her she had to stay. She said that the agreement also provided that she was to negotiate with the client directly concerning such matters as time, place, and type of services, yet she did not talk to or negotiate with the client about her duties or her wages. She stated that the agreement provided that she was to be responsible for collecting all fees from a client, yet she was paid by check every week by Superior.

On cross-examination, Long acknowledged that she had a chance to look over the paperwork that she signed when she started working with Superior; that the paperwork described her status as self-employed; but that she was talking, laughing, and carrying on at the time. She acknowledged being able to read and write. She stated that she did not understand at first that she would have to pay taxes herself, but that once she realized taxes | ¿were not being deducted, she asked about it. She acknowledged that she was told her taxes were not deducted because she was self-employed.

Long stated that her first client through Superior was someone for whom she worked three hours and that the next client, where she stayed from Friday through Monday, was the person at whose house she injured her back; that she went to work for another person the following week for three days; and that after that, she worked for another client for three hours. She acknowledged that she could have refused the next two jobs after she hurt her back, but did not. She also conceded that several of the documents she signed upon starting her relationship with Superior explained that she was self-employed.

On redirect, Long stated that she did not realize at the time of signing all the papers that she was also applying for an employer-identification number. She said that no one explained the documents to her as she was signing them and that she did not receive copies to take home. She explained that during the three days she worked after the injury that she did as little as she could, barely sweeping, heating up dinners, and filing; she did not do any lifting. She said that during the three-hour job following the injury, she only heated food and folded clothes.

Jan Throgmorton testified that she served as the office manager at Superior, where she had worked since July 2011; that her duties were to oversee the daily running of the office; and that the role of Superior was as a referral service. She explained that Superior took information from both clients and CNAs, and then put the two together. She said |fithat the orientation process included videos to refresh the CNAs’ specialties, such as transfers, privacy, and documentation. She indicated that there were five actual employees in the office and probably 100 independent-contractor CNAs in their pool. According to her, the office staff helps clients fill out the paperwork explaining what they want. When the CNAs call and ask if any jobs are available, Superior tells them what is available and what a job will entail. She stated that the CNAs are paid by the client through Superior; that as a referral service, Superior receives a referral fee; that an escrow account is set up for clients to pay into; and that Superior takes care of it for them. Even though a client could pay a CNA directly, she said that most clients set up an escrow account.

She said that it was up to each client to terminate a relationship with a CNA once a referral was made; that Superior could not terminate a CNA; that if a client called Superior and did not want the person back, Superior then informed the CNA; and that it could be the reverse, with the CNA not wanting to go back. She said that no compensation went from Superior to a CNA; that each client set the time that a CNA was supposed to work; that each client set the CNA’s duties; and that each CNA could work for other companies. She testified that Superior asked each CNA what minimum amount of money the CNA would accept because there were some jobs that paid more than others.

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Bluebook (online)
427 S.W.3d 106, 2013 Ark. App. 204, 2013 WL 1226882, 2013 Ark. App. LEXIS 212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-superior-senior-care-inc-arkctapp-2013.