The home health aide industry usually avoids liability by not paying employees until they arrive at the patient’s home. Not this time
The morning started out great for young Officer Williams. He was working as a special police officer on his first road detail. He’d spent the summer interning for a local department prior to returning for his last year of college. Standing on the grassy shoulder to the side of the road, he chatted with Officer Carol, who had worked hundreds of details during his career. Officer Carol explained the do’s and don’ts as both watched traffic approaching from opposite directions on this rural road. As they spoke, Ben Reck approached their position around a curve. Reck was speeding in this 35 mph zone. As Reck’s vehicle came out of the curve his vehicle left the road and drove on to the grassy shoulder. Officers Williams and Carol stood straight ahead just ten yards away. Officer Carol saw Reck coming. Instantly Officer Carol shoved Officer Williams’ away as Officer Carol jumped to get out of the way. Reck struck both officers and then crashed into their vehicles parked on the shoulder. When Officer Williams came to he looked up and was staring at Reck’s right headlight. His right leg and left arm were fractured. Officer Carol fared better with a back strain. Both officers were taken by ambulance to the local hospital. Officer Williams had surgery to put a rod into his leg and his broken arm was set and cast. He then underwent months of rehabilitation, physical therapy and surgery to remove the rod in his leg. The Town stood by young Officer Williams and paid medical bills and wages as if he had been a full time officer. Reck was clearly liable for both officers’ injuries. However, his car only had $50,000 per person of liability coverage. This was enough to cover Officer Carol’s losses, but not nearly enough to cover Officer Williams’ losses.
Reck was on his way to work for his first appointment of the day. He was employed as a home health aide with Acme Home Healthcare. Typically an employer like Acme is held liable for the negligent acts of its employees. Not according to Acme. It denied Officer Williams’ claim. Acme stated it had no responsibility since its employee, Reck, hadn’t technically begun work yet. Acme had carefully crafted a business strategy whereby it had no liability. Acme’s home health aides on the way to their first appointment of the day weren’t yet in the “course of employment” because Acme didn’t pay them until they arrived at their first appointment. Acme was trying to save money by not paying for the employee’s driving time and mileage, avoiding workers compensation liability if an employee was injured driving to the first appointment, and, as in this case, avoiding liability for the employee crashing into and injuring someone. Acme’s position was clear: Officer Williams should accept their business model, the long standing legal “going and coming rule” and take Reck’s $50,000 policy in settlement and call it a day. Not good enough. We filed suit.
Establishing Reck’s liability was easy. Officer Carol saw him looking down at the time of the crash away from the road. There was nothing wrong with his car. Although he told the police he blacked out before the crash and his lawyers claimed a sudden medical emergency, we proved Reck was lying. I obtained his hospital and medical records which said nothing about him blacking out. Nor did his operators report which he handwrote after the crash. Next up was proving Acme was liable for Reck’s negligent driving, even though Acme had long gotten away with treating its home health aides as not yet at work. Acme’s attorneys pinned their defense to the legal “going and coming rule” which provides an employer is not responsible for injuries to its employee or injuries its employee causes to others, when the incident occurs going to work or coming home from work. However, home health aides in our view are not like other employees. They have no office or other fixed place of employment. They only report to and work at remote locations. Driving to appointments as far as we were concerned is very much part of their work, regardless of whether they are getting paid or not.
The last deposition I took was the deposition of Acme Home Healthcare. The corporation designated a corporate officer to testify on behalf of the corporation. Acme was steadfast that having a car wasn’t a requirement of the job. However Acme had no explanation for why I found Reck’s automobile insurance policy in his personnel file. Nor could Acme explain Reck’s testimony that he was told at his first interview he’d need a car. Acme admitted it would go out of business if its home health aides couldn’t get to Acme’s clients’ homes. I then showed him Acme’s help wanted ads for home health aides which I found on Craigslist and other websites. Acme admitted these were its ads and that the ads read the applicants “must have reliable transportation.”
Acme next filed a motion in Court to throw our case out citing the long established “going and coming rule”. We vigorously opposed that motion urging the Court to find a required vehicle exception to the “going and coming rule”, like a California appeals court had done previously on a similar case. We also argued a jury could still find Reck was in the course and scope of employment with Acme even though he wasn’t getting paid at the time. Although not an appellate case, we referred the Court to a similar case from our own Superior Court which held a similar home health aide was in the course of employment. The Court agreed with us, and denied Acme’s motion and set the case down for trial. Acme of course could appeal the Court’s decision and a jury verdict were we to win, claiming the Court had the law wrong. However the court’s denial of Acme’s motion raised the stakes for Acme.
Acme then invited us to participate in private mediation in an attempt to settle the case before trial. By this time Officer Williams had largely recovered from his injuries, had gone back and finished college and accepted a position in another department. After a lengthy mediation the parties resolved the case for $900,000.00.
Officers injured on or off duty should consult with us early on, so we can determine whether the injured officer has a viable case and for the officer to learn what their rights are. Sometimes we need to do some investigation to determine whether a case is worthwhile to proceed for an injured officer. Such investigations are in addition to any police investigation which may be required for a related criminal case. Decisions about whether to proceed with a claim for compensation always belong to the injured officer, not us, and can be made later. When we work on these cases, we work on a contingent fee basis. That means the injured officer pays nothing up front, nor while the case is pending. He or she only needs to pay for legal services and expenses at the end of the case, if we successfully collect money on their claim. We typically receive one-third of the money collected. In the off chance we are unable to collect money for the injured officer, the officer owes nothing for our services and expenses.
– Steven M. Ballin, Esq.
To protect the privacy of the officers and witnesses, all names and places have been changed. Any resemblance to names of real persons, past or present, is merely coincidental and not intended. The officers agreed to have this article published so police officers around the Commonwealth can be better educated about their legal rights to compensation when injured on duty.
The author, Steven Ballin, is an attorney and founder of the law firm, Ballin & Associates, LLC, which specializes in representing injured officers and their families. Attorney Ballin has practiced in the field of personal injury law for over 35 years and along with other attorneys in his firm, has successfully represented injured police officers in over 200 departments throughout Massachusetts. Attorney Ballin is available for free and confidential consultation and case review. He can be reached by telephone at 508-543-3700, or by e-mail at SBallin@PoliceInjury.com.
Copyright, Steven M. Ballin, 2020.