Vivian Evans v. State of Illinois

ORDER

BURNS, J.

Vivian Evans, a 53-year-old recipient of home personal assistant services through the Illinois Department of Human services, Division of Rehabilitation Services, alleges that her personal assistant, Brenda Martin, negligently caused Evans to fall backward in her wheelchair on March 21, 2003, resulting in injuries and a permanent scar on the back of Evan’s neck.

Claimant argues that the State of Illinois is liable for her damages because Martin was acting as the Department’s agent/employee when the incident occurred.

FACTUAL BACKGROUND

The Claimant, Vivian Evans, has Multiple Sclerosis, causing her to be immobile and have difficulty with daily tasks, and has been on disability since 1991.

Evans was informed about a personal assistant program called the Home Services Program carried out by the Illinois Department of Human Services (DHS), Division of Rehabilitative Services (DRS) through a social worker at Rehabilitation Institute of Chicago (RIC).

Since 1991, Evans has had approximately 50 personal assistants through the Home Services Program.

[*151] The Home Services Program is a Medicaid waiver program.

Medicaid is funded jointly by the states and the federal government and provides medical assistance to disabled and certain poor individuals.

Each state participating in the Medicaid program must submit for approval to the U.S. Secretary of Health and Human Services (HHS) a plan setting forth the services that the State will provide in its Medicaid program.

In addition to the services outlined in a state’s basic Medicaid plans, states may, pursuant to the HHS Secretary’s exercise of “waiver” authority, seek to provide home and community-based services to individuals who would otherwise require institutional care.

The Illinois Home Services Program is such a Medicare waiver program.

It is administered through the DRS division of the DHS.

To receive federal approval for the Home Services Program and matching federal funds, the state must certify that the home services are provided pursuant to a written plan of care to individuals based on a determination that but for these services they would be institutionalized.

Federal

compliance also requires that the personal assistants (PAs) paid to assist the individuals at home must be legally allowed to work in the U.S. and federal taxes must be withheld from the PA’s paychecks.

Consistent with federal regulations, individuals seeking to participate in the Home Services Program are evaluated by a DRS counselor based on their degree of impairment and need for medical care and assigned a Determination of Need (DON) score reflecting their risk of institutionalization.

Assuming a person has an eligible DON score to participate in the program, the DON score corresponds with a Service Cost Maximum (SCM).

The SCM is the maximum amount of benefits a person will receive, and it cannot exceed what it would cost to provide nursing care to the recipient in an institutional setting.

Once the counselor has determined that the individual qualifies for the Home Services Program, the individual and counselor develop a service plan that must be approved by the individual’s doctor.

The service plan questionnaire contains fifteen areas in an individual’s daily life that she might need assistance with, like leaving the house, bathing, eating, managing money.

The individual and the counselor would then determine which of those areas the individual needed assistance with from the Home Services Program to avoid institutionalization, and how many hours a day the individual would need assistance in each of those areas

The counselor also determines if a personal assistant service or a homemaker service is more appropriate for the individual.

If the individual has normal cognitive functioning and seems able to direct and supervise the services of a PA then the PA service is appropriate.

If the individual is deemed unable to direct and supervise the services of a PA, then the homemaker service is appropriate, because it provides trained and professionally supervised personnel to the individual.

In Evan’s case, she was deemed able to have a PA.

Her service plan determined that she would require 7 hours of assistance a day, excluding weekends.

The service plan also indicated the rate of pay the PA would receive for assisting Evans in the areas designated in the Service Plan.

Individuals in the Home Services Program were reevaluated every year to determine if any modifications needed to be made to their Service Plans.

Evans could have different PAs to assist with different areas if she chose.

For

instance, she could have one PA who came to make her meals and drive her places, and another PA for everything else.

It was her sole discretion when the PA assisted her with [*152] the different areas she needed assistance with and the manner in which the PA assisted her.

She could even have the PA perform tasks that were not on the Service Plan, but she would have to pay the PA herself, because Respondent was only going to pay the PA to perform activities related to areas designated in the service plan.

With respect to hiring the PA, that was Evans’ sole discretion as well.

She was responsible for interviewing the PA and determining if he or she was right for the job.

There were no special skills or qualifications that the PA was mandated to have by the Respondent.

Quite literally, almost anyone could be a PA.

The sole determining factor was whether Evans wanted to hire him or her.

Once Evans determined she wanted to hire someone, that person would have to be processed by the Respondent.

Processing basically consisted of filing federal tax paperwork and requiring proof that the individual she wished to hire was legally allowed to work in the U.S.

At Evans’ request, Respondent would pay for a criminal background check, but none was required.

Likewise, all participants in the program were encouraged to get three letters of reference from their prospective PAs but it was not required.

Respondent also had a list of people who were interested in becoming PAs in case an individual was having a hard time finding one, but Respondent would make sure that the program participant knew that Respondent did not know anything about the qualifications or character about any of the people on that list.

The last part of the processing consisted of an employment contract between Evans and the PA that both parties had to sign.

Among other things the agreement stated that Evans was the PA’s employer and had the following responsibilities: recruitment, interviewing and selection of the PA; training of the PA; directing the work of the PA; setting the hours of the PA; evaluation of the performance of the PA; and disciplining the PA (including right to counsel suspend and/or discharge).

Respondent characterized its role in the relationship between Evans and her PAs as that of pay agent.

However, if there were any allegations of abuse, neglect, or exploitation made to Respondent, it could also discharge the PA.

There was also a responsibility under the contract that Evans obtain an insurance policy to insure her against any injury arising out of the negligence of her personal assistant.

Evans never obtained this insurance policy.

Once the PA was hired, she was responsible for keeping her own time sheets and submitting them to Evans to verify.

To PA would then submit the verified timesheets to DRS, who would issue her a check bi-weekly.

Respondent did not provide any equipment to PAs to perform any of their duties indicated in the service plan.

However, for sanitary reasons, Respondent did provide them with latex gloves upon request.

Pursuant to a collective bargaining agreement with a union that PAs were allowed to join, PAs could claim worker’s compensation and unemployment benefits against Respondent.

Around November of 2002, Evans hired Brenda Martin to be her PA, Martin was recommended to Evans by Martin’s sister.

On March 21, 2003, Martin accompanied Evans to the Rehabilitation Institute of Chicago (RIC).

Martin had been Evans personal assistant for five months at this point and was used to accompanying Evans to the RIC for two hours a day, five days a week.

Evans required assistance on the MotorMed, a type of exercise bike for people in a wheelchair.

Martin would push Evans up to the bike in her wheelchair, put her legs on the bike, strap her down, and then the bike would move itself.

When Evan’s

was finished, Martin would remove Evans’ feet from the MotorMed, put them back on the wheelchair, and then pull Evans away from the machine.

[*153] Before working with Evans, Martin had not used this exercise equipment with previous customers.

DRS does not provide any training to the PAs.

Martin was shown how to assist Evans through staff at RIC.

The staff would continue to show Martin how to assist Evans until Martin caught on.

At the time of March 21, 2003, Martin had helped Evans with the machine numerous times.

This particular time, Martin took Evan’s feet off the bike before locking her wheelchair.

While Martin was handling Evans’s feet, she tripped over a bar on the bike, pushing Evan’s arm rail on her wheelchair, knocking Evans back.

Evans could not avoid the fall or brace herself, and fell straight back, striking the back of her head on the floor.

Evans

lost consciousness for a couple of seconds.

She then complained of dizziness and her head hurting/throbbing.

Evan’s head was bleeding in the back.

An ambulance arrived, and the paramedics bandaged Evans’s head, as well as put on a neck brace.

The paramedics put her on a stretcher and took her to Northwestern Memorial Hospital ER.

Martin rode in the ambulance with Evan.

Once seen, doctors numbed Evans’s head and inserted four staples.

Evans was also administered a tetanus shot in her left arm.

She was discharged the same day.

Evans’s head still hurt afterwards and she was left with a 1 ½ inch scar on the back of her head, her hair now covering it.

She

also complained of pain in her left arm due to the tetanus shot for several months afterword.

Claimant filed the instant complaint on February 28, 2005 seeking damages.

Respondent does not contest that Martin’s negligence proximately caused Claimant’s injuries.

Respondent does contest that it is vicariously liable for her negligence, asserting that she was not Respondent’s employee or agent, as clearly indicated by the employment agreement made between Claimant and Martin.

Claimant, however, counters that the agreement is not dispositive and that the surrounding circumstances establish that there was an employer/employee or principal/agent relationship between Martin and Respondent, and accordingly, Respondent is liable for Claimant’s damages.

ANALSIS

When an action is brought against a respondent based solely on the allegedly negligent acts of its purported employee, liability is entirely derivative and is founded upon the doctrine of respondeat superior. Marek v. O.B. Gyne Specialists II, S.C., 319 Ill. App. 3d 690, 253 Ill. Dec. 759, 746 N.E.2d 1 (1st Dist. 2001).

To invoke the doctrine of respondeat superior, Claimant must establish a relationship of principal and agent, master and servant, or employer and employee, as well as that the wrongdoer is either the employee, the agent, or the servant.

Williams ex rel. Beaton v. Ingalls Memorial Hosp., 408 Ill.App.3d 360, 369, 944 N.E.2d 421, 431, 348 Ill.Dec. 468.468 478 (1st Dist. 2011) (since overruled on other grounds).

Whether a person is considered an employee of the Respondent depends on several factors: 1. whether the purported employer has a right to control the actions of the employee; 2. whether the nature of the work performed by the alleged employee in relation to the general business of the employer; 3. the method of payment; 4. the right to discharge; 5. the skill the work requires; 6. which party provides the needed instrumentalities; 7. whether income tax has been withheld; and 8. the label the parties place upon their relationship.

Skuzbel v. Illinois Workers Compensation Com’n Div., 401 Ill.App.3d 263, 267, 927 N.E.2d 1247, 1250, 340 Ill.Dec. 236, 239 (1st Dist. 2010).

[*154] Here, method of payment and withholding of taxes goes in favor of finding that Martin was Respondent’s employee.

Respondent, on a bi-weekly basis, paid Martin based on an hourly rate set by federal regulations and set the amount of hours per week for which Martin was authorized to be paid.

Respondent also required Martin to fill out time sheets, which Evans had to verify, and Respondent then issued her a check, from which federal income tax was withheld.

However, these activities alone establish little more than the fact that Respondent was acting as Martin’s pay agent.

Further, there are several factors that strongly support a finding that no employment or agency relationship existed.

Despite Respondent’s ability to terminate Martin under certain specified circumstances, Claimant had complete discretion to terminate her employment, and more importantly, notwithstanding Resondent’s minimal requirement that Martin be legally allowed to work in the United States, Claimant had sole discretion to hire Martin.

Further supporting a finding that Respondent was not Martin’s employer are the facts that the agreement between Martin and Respondent clearly delineated Claimant as her employer, and not Respondent; and Respondent did not provide PAs with the equipment needed to carry out their daily duties, despite Claimant’s attempt at arguing that providing latex gloves satisfied this factor.

The most compelling factor in favor of finding there was no employee or agent relationship is control.

Both Claimant and Respondent agree that the essential and generally decisive consideration is the right to control.

Moy. County of Cook, 159 Ill.2d 519, 526; 640 N.E.2d 926, 928; 203 Ill.Dec. 776, 778 (Ill. 1994).

It is undisputed that Claimant - and not Respondent - directed the time and place that Martin performed her daily duties and was responsible for training her.

Claimant was also responsible for disciplining Martin, and was responsible for interviewing her and determining that she wanted to hire her.

Nonetheless, Claimant argues that Respondent controlled Martin’s activities through the establishment of its service plan, because the service plan established the activities that Martin performed and how much time she was supposed to spend on those activities daily.

Review of the service plan indicates, however, that its purpose is not to dictate the actual everyday activities that a PA will perform; but instead it establishes the parameters of Respondent’s payment for the PA’s services rendered to the customer.

To that end, the service plan lists general areas where a person might need assistance like eating, bathing, going out, or managing money and then, based on the customer’s input, limits compensation based on the hours it will take for PA to render assistance in those specific areas.

In the instant case, for example, after meeting with Claimant the counselor determined that she needed about 1.5 hours of assistance daily (excluding weekends) with going out.

Respondent’s service plan establishes that if Martin instead spent that 1.5 hours daily organizing Claimant’s stamp collection (assuming she had one), Respondent would not pay her for that 1.5 hours.

That does not mean that Claimant is precluded from paying Martin to organize her stamp collection though.

Moreover, although the service plan designates that Martin will be paid for 1.5 hours helping Claimant leave the home, Claimant determines if they are taking a car or bus, which route they are taking, where they are going, when they are going, and when they are coming back.

We find that Respondent did not exercise any meaningful control over Martin.

Because the factor of control weighs heavily against a finding that Martin was an employee or agent of the Respondent, and there were several other factors also strongly weighing [*155] against such a finding, we find that Claimant has failed to establish by a preponderance of the evidence that Brenda Martin was the Respondent’s employee or agent when she negligently transported Claimant off the MotorMed.

It would undercut the principals of equity and justice were we to find Respondent liable for Martin’s actions when it did not dictate to her the specific activities she was to perform, the manner in which she was to perform them, train her on how to perform them, or make any determinations regarding whether she was able to perform them.

Accordingly, Claimant’s claim is DENIED.