Moody v. Industrial Accident Commission

WASTE, C.

J.

Certiorari to review an award of the Industrial Accident Commission in favor of Ida M. Bracket and against Fred S. Moody. Briefly, the facts are that petitioner, Fred S. Moody, while suffering from an infection, which caused a high fever and delirium, was ordered sent to the hospital by his physician, who requested the hospital to assign petitioner a room, to prepare the operating room, and to call in a special nurse. In response to the doctor’s request, the respondent Ida M. Bracket, a professional nurse, was summoned by the hospital management to take charge of the case, her name being taken from a waiting-list of nurses kept by the hospital. There was no agreement or understanding as to the nature of her duties or the right to control her services. Her hours of employment and the wages she was to receive were covered by an operating schedule maintained between the hospital and the nurses’ association. The operation was performed, and petitioner’s delirium continued for a period of a week or ten days thereafter. After attending the patient for a week, the respondent complained of a soreness in her thumb, and was immediately retired from the case. The soreness developed into an infection, and she remained at the hospital as a patient for over two months. She filed a claim with the Industrial Accident Commission for compensation for injuries arising out of and in the course of her employment by petitioner, and was granted an award for a temporary total disability from November 8, 1926, and continuing indefinitely. Petitioner seeks to have the award annulled, contending that the relationship of master and servant does not exist in this ease; that the disputable presumption of employment based on personal service, embodied in section 8 (b) of the Workmen’s Compensation Act, has no application to the facts here, and that the status of the respondent nurse at the time she became inoculated with the infection was not that of an employee, but that of an independent contractor, exercising an independent calling, and retaining the entire control over the method and manner of doing her work, in accordance with her learning, skill, and training.

[670]

The sole question to be considered, therefore, in this proceeding is whether a graduate nurse, attending a patient in her professional capacity, becomes an “employee” of the patient, within the meaning of the Workmen’s Compensation Act, or is to be considered an “independent contractor.” The Commission contends that, having found that the respondent was performing service for petitioner at the time she became infected, it was presumed that her status was that of an employee; that, under section 19 (d) of the Workmen’s Compensation Act, the burden of showing that she was an independent contractor was upon petitioner, and that that burden of proof was never discharged, and, therefore, the presumption was never overcome.