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Swillings v. Mahendroo

Decided: February 16, 1993.


On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Antell, Dreier and Villanueva. The opinion of the court was delivered by Villanueva, J.s.c. (temporarily assigned).


Plaintiff appeals from a summary judgment dismissing her personal injury action based upon the finding that she was an employee and, therefore, barred from bringing an action by N.J.S.A. 34:15-8.

Plaintiff, a registered nurse working in the home of the defendants Yog and Kanta Mahendroo, allegedly slipped and fell in their residence. Plaintiff sustained a severe ankle fracture.

Defendants originally retained plaintiff through the Nurses Registry at Mt. Sinai Hospital when defendant Kanta Mahendroo was hospitalized in November and December, 1988. Upon defendant's release from the hospital, plaintiff was requested by defendant Yog Mahendroo to continue caring for his wife, Kanta, at their home. Plaintiff agreed to do so.

Plaintiff continued her private duty nursing care of Kanta in defendants' home, providing her complete care. Defendant Yog paid her by check of $380 per day for a twelve-hour shift. There was no showing that defendants deducted anything for withholding taxes, social security or unemployment compensation, or filed any federal or state tax returns required of employers. Plaintiff's principal duty was to operate a suction machine for respiratory emergencies. On April 14, 1989, plaintiff went down to the garage of defendants' house where the garbage cans were kept to throw away a used catheter and while there, at Kanta's request, to place a basket on a shelf. Plaintiff slipped and fell on an oil residue.

Plaintiff's own medical insurance covered her medical expenses, but she received no State Disability or Workers' Compensation benefits for her period of incapacitation.

After plaintiff filed this complaint for personal injuries, defendants, in their answer, asserted that as plaintiff was an employee, the claim was barred by N.J.S.A. 34:15-8. Because plaintiff's status as an independent contractor was disputed in this action, plaintiff also filed a timely Workers' Compensation Employee Claim Petition*fn1 against these defendants. Plaintiff's status was denied in both actions; i.e. the liability carrier herein claims plaintiff was an employee and subject to the laws of Workers' Compensation; and the Workers' Compensation insurance carrier claims she was an independent contractor ineligible for Workers' Compensation benefits, but capable of maintaining the within action.

Defendants filed a motion for summary judgment to dismiss the complaint. The motion Judge found that plaintiff was an employee and dismissed her liability complaint. The Judge determined that because defendants paid plaintiff directly, controlled her actions, could fire her if they were unhappy with her services, and plaintiff may have performed various other activities for defendants (such as the placing of the basket on a shelf), her relationship was that of an employee rather than an independent contractor. In addition, the Judge noted that he was not presented with evidence concerning how the parties themselves treated the transaction, namely whether they considered plaintiff an employee and if defendants deducted appropriate withholding taxes, social security and unemployment taxes. What the Judge overlooked is the fact that although payments were made directly to plaintiff, she continued to forward a percentage to the Nurses Registry through which she had obtained the assignment. In any event, direct payment

in the personal services professions carry little weight. One personally pays one's physician, attorney, accountant, as well as a plumber, electrician or carpenter, without such persons becoming direct employees. The Judge felt he was controlled by the tests in Smith v. E.T.L. Enter., 155 N.J. Super. 343, 382 A.2d 939 (App.Div.1978). His mechanical application of the Smith test was against the overall spirit of the Smith opinion (which involved the lessee of a tractor).

More appropriately, the Judge should have relied upon the registered nurse cases such as David v. Employers Mut. Ins. Co., 124 N.J. Super. 377, 307 A.2d 123 (App.Div.), certif. denied, 63 N.J. 580, 311 A.2d 3 (1973); Robinson v. Levy, 20 N.J.Misc. 444, 28 A.2d 651 (Dept. of Labor 1942); and Chmizlak v. Levine, 20 N.J.Misc. 339, 27 ...

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