Edith A. Anderson Nursing Homes, Inc. v. Walker

Hammond, J., delivered the opinion of the Court. The corporate appellant is a nursing home at which the appellee, an experienced practical nurse, was injured while wheeling her patient in a wheel chair. Appellee’s claim for workmen’s compensation was denied by the Commission, which held she was not an employee at the time of the injury, and granted by Judge Allen on appeal, sitting without a jury in the Baltimore City Court, who held that she was. Mrs. Alexander Whitney, who had had a stroke, was an invalid patient in the Home.

Her nephew, George Penniman, who was familiar with her financial and personal affairs, visited her daily. He asked the Home to obtain special nurses. As an accommodation, the administrator of the Home called the Baltimore Nurses Exchange and requested three nurses, one for each eight-hour shift. Mrs. Webster of the Exchange selected the nurses, including Mrs. Walker, the appellee, and the shift each nurse was to work, assigning the seven to three shift to Mrs. Walker.

She was told that her one patient would be Mrs. Whitney. Her rate of pay was standard at that time, $13.50 a day, as she knew. Mrs. Walker had taken a course in practical nursing for a year and a half and since had had thirteen years’ experience as a practical nurse. She needed no instructions as to how generally to care for her patient.

When Mrs. Walker first came on the case, she introduced herself to the administrator of the Home, who took her upstairs and introduced her to Mrs. Whitney. While she was on duty, Mrs. Walker was solely responsible for Mrs. Whitney’s care. She had no duties in regard to, nor any responsibility for, any other patient. She did no work for the Home.

Mrs. Walker received her instructions as to treatment for Mrs. Whitney ⁴⁴⁴ from the latter’s personal physician, either directly if she were on duty when he made his visit, or from another nurse if she were not. The Home had no control over Mrs. Walker’s duties as long as she conformed to the general standards of orderly and proper governance of the Home. If she had been guilty of impropriety —coming in drunk was suggested as a hypothetical example— the Home would have temporarily supplied another nurse and requested Mrs. Whitney’s family to discharge her because the reputation of the Home otherwise would be damaged. The Home as a matter of convenience paid Mrs. Walker and the other two nurses weekly and was reimbursed from Mrs. Whitney’s trust income monthly, at the same time it was paid for drugs, medicines and newspapers it procured for her.

The Home did not carry Mrs. Walker on its records as an employee and did not withhold Federal or State income taxes or Social Security taxes from the amounts advanced to her weekly. Mrs. Whitney paid the Home Mrs. Walker’s bill for board. The Home and its insurer contend that Mrs. Walker was either an independent contractor or an employee of Mrs. Whitney and, in any event, was not its employee. We recently reiterated, in Marine v. Service Trucking Co., 225 Md. 315, 318 , the holding of Sun Cab Co. v. Powell, 196 Md. 572 , that the words “employer” and “employee” in the Compensation Act are the equivalent of and synonymous with the words master and servant, and therefore the rules for determining the existence of the relation of employer and employee under the Act are the same as the common law rules for ascertaining the relation of master and servant.

The Marine case points out that the most important and really decisive common law test is whether there is a right to control and direct the worker in the performance and manner of doing the work. In addition to the test of the right to control and direct, other criteria, such as the selection and engagement of the worker, the payment of wages, the power of dismissal, whether the work is a part of the regular business of the employer, and whether the parties believe they were creating the relationship of master and servant have been referred to in the cases. L. & S. Co. v. State Accident Fund, 221 Md. ⁴⁴⁵ 51, 57; Kelts v. National Paving Co., 214 Md. 479, 491 ; Charles Freeland v. Couplin, 211 Md. 160, 169 ; Sun Cab Co. v. Powell, supra. 1 Restatement, Agency, 2d, Sec. 220, adds two additional considerations here pertinent: (a) whether the work is usually done, in the environment, under direction of the employer or by a specialist, without supervision, and (b) the skill required in the