Please help, we are already stressed taking care of my frail hospice 96 year old mother, now we have to deal with this legal issue? She is hired as an independent contractor 1099 and uses hoyer lift to place my mother in out of wheelchair to bed.
Thank you in advance

I can’t offer advice but I send wishes for a good easy resolution.
Helpful Answer (2)
Reply to Erikka

No, no no. Everyone here speaks in generalities without knowing actual law.

Igloo is correct.

Lets say I go to a courthouse and set up a dba stacy0122 dba S. I have 5 clients. As long as my business is set up and I do not receive 75% of my annual income from 1 client, yes I can be a 1099 sub. It is the half a** interpretation of law that drives me crazy.

Not all situations are the same and op has not responded.
Helpful Answer (1)
Reply to Stacy0122

How long has this person been working with your mother?

If it's not very long, then I'm afraid fraud bells certainly would be ringing with me and I certainly would be wondering how many stressed, vulnerable families she's preyed on. Get help first to investigate, then to put a stop to it. Evil.
Helpful Answer (0)
Reply to Countrymouse

So, here is how I would handle it. Since I do not think most here have handled a back comp claim. Back claims are not DIY since the injury payout can be for a lifetime.

Turn the claim into insurance. The insurance company has a set of specialists worker will be required to see. The ins. company pays a lawyer and the PI to do the dirty work. Do not speak to the caregiver anymore.

I had a client pay a sub to do work at personal home. Safety harness broke, person claimed comp. The PI followed this person 24/7 for weeks. The person was caught on camera lifting. The settlement went from $500k to $10k.

Do not try this yourself. You will lose.
Helpful Answer (2)
Reply to Stacy0122

Household help - maids, housekeeper, caregivers, gardeners- are NOT independent contractors as per IRS. IRS publication # 926 and topic #756 go in detail on this. You cannot 1099 a caregiver.

Anne Marie Botek, who is one of the experts on this site, has a whole article (4/16/2021) on this and in detail.

The only way around this would be that the person has themselves as a business with whatever biz license or presence needed to establish that they are a business. Usually that means they have several clients or the ability to have several clients; do self-employment tax filing; have a license with the city county &/or state. A business card at a minimum. So your mom is merely Tuesday’s client for 10 hrs with a 1 hr break and 2 30 minute breaks in that set time period. They would have their own insurance and liability. And they clearly establish their time and bring in whatever supplies needed. Charge for mileage if they run errands or accompany mom to appointments. And there is a contract or agreement done in advance signed off by both parties as to all this.

If that was not in place, they are your or your moms employee.

Whomever is the property owner where the work was performed are responsible for providing a safe & secure working environment and having insurance in place to deal with any damages and any workmans comp claims. If they hurt themselves in any way, they can seek payment for whatever costs associated to alleviate or repair damages. That they are asking for your property insurance info means they either have an atty or know of one they will be using. If they have an atty, the atty has probably already had them seek medical care & has an Urgi-Care center or orthopedic MD they work with. I’ll bet a case of Prosecco they have had a full set of X-rays done & have soft tissue imaging scheduled, this is $$$$ and part of why they need your workmans comp policy info.

If you don’t have workmen’s comp insurance coverage and also did not handle their employment properly (you did not filed & pay their FICA and had them do w-9 & I-9), their atty can come after you for those items as well. State labor boards tend to take these type of issues seriously. If the person was getting paid less than minimum wage, and breaks were not scheduled, those too can go into the compliant.

I’m with Stacy, that your choices are stark either….
1. you hire your own PI and atty to see if they have done this b4 and you are thier latest pigeon
2. find out what $ they want to settle and pay her the $ and get her to sign off a liability document.
If this gets ugly, the workmans comp claim can become a lien placed on the property where “work” was done. That lien will have to get paid off to ever sell the property. Could have interest on it as well.
Really cut your losses and come to an agreement ASAP. Next time pay the increased wages and hire from an agency.
Helpful Answer (2)
Reply to igloo572

For future consideration, I have a rider on my homeowners policy ($95 a year for $1million) that covers any contractor I hire who works on my property.
Helpful Answer (2)
Reply to Frances73
JoAnn29 Jun 28, 2021
Aides are not contractors. They are employees. As the employer OP has to deduct taxes and send them to the correct agency.
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I would contact a lawyer that deals with this type of law. He/She would most likely require medical doctor to confirm of a recent back injury that can be attributed to employment. Also, the caregiver should provide proof of training or certification to work in this field. It would help if you had statements from the caregiver, or documentation of training, regarding proper body mechanics and use of medical devices. The caregiver should not have a back injury if he/she has been using this equipment properly.
Helpful Answer (1)
Reply to Taarna

My DH Aunt had a nephew in his early 60s fall from a chair that had arms, would swivel and was on casters. A comfortable fun chair.
This was in her breakfast room on a hard floor. He was swiveling in it and it fell over. Something he had done many times over the years although aunt always cautioned him and others to be careful, plus she was concerned for her chairs.

His wife ended up taking him to the ER several hours later after they made a 6 hour road trip home. I’m sure he was sore. He has neuropathy and pain from that as well. She filed on Aunts home owners insurance…which paid.

However, Aunt ended up having to go on a diff policy (more expensive) for several years. She had a good relationship with her agent who looked out for aunts pocketbook. She wasn’t canceled over it. It’s just that if she stayed on the same policy it would have been more expensive than the one the agent suggested. I never did the math to see how much it ended up costing her. We felt like she could have paid the ER bill and came out ahead but when the wife called aunt, she gave the insurance info and went forward with it. She certainly wasn’t expecting the request. This has been several years ago.

The nephew had health insurance through the wife’s company but she filed on aunt’s home owners. I suppose that was the right thing to do but I wouldn’t have done it. I would have felt it was my fault in the first place. But those pesky forms are in your face. Was this an accident? Where did it occur? Yada, yada, yada.

Hopefully your insurance will pay but you may have an increase in your rate. Aunts policy is/was through Farmers.

We are all vulnerable anytime someone comes into our home. I got rid of those chairs in aunts case. You are in a tough situation there with your mom. I’m sorry you have had this happen. Please let us know how it works out. We all learn from one another.
Helpful Answer (2)
Reply to 97yroldmom
JoAnn29 Jun 27, 2021
I am surprised the HOs didn't say health insurance first and they would cover the deductibles and balances.
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What a dilemma you're in; I'm sooo very sorry to learn of this predicament.

Did you have this caregiver sign a contract before performing services?   Did you do any background checks  that might have revealed if she had any existing or prior injuries?

What injuries, very specifically, is she claiming?  This will provide insight into whether or not she's actually been injured.    What doctors has she seen, and will she provide you with reports (she should!)?  

How did you locate this caregiver?  Through a friend of hers?  Ad?  

Were you or anyone else witnesses to the alleged injury?  

I seriously doubt that homeowner's insurance has liability for this.    My understanding is that HO liability applies if someone is trespassing, but is not an invitee.    And given that she's been "invited" to provide services, she definitely wouldn't be trespassing.

You might want to call your insurance agent just to get some advice and suggestions.   They might even refer you to an attorney who could guide you through this situation, such as requiring medical reports to verify the injury as well as potential limitations.

This must be so frustrating, especially when your mother is already in a hospice situation.  I assume though that she's no longer performing duties?
Helpful Answer (3)
Reply to GardenArtist

Yes, this has been discussed many times on the forum. Aides are not considered self-employed. They are not responsible seeing taxes from their wages are paid to the right government agency; the people who employ them are. You probably needed a rider on your homeowners to cover caregivers in your home.

You do not give her info on your homeowners. You ask for the medical bills she has and you file a claim. If your homeowners refuses to pay, it comes out Moms money if she has any. If not, you will need to pay it. Seems to me by having a hoyer lift you have made things safe for the aide. If she felt it wasn't safe, then she should have told you she needed a 2 person assist. You don't go into this line of work without realizing that your back will suffer. My GF and her sister both retired from aide work at 60 because of back problems.

Has aide stopped transferring Mom. If not, get pictures. Put in a hidden camera. Do you pay her or does Mom? Just wondering who she would sue?

You are going to have to see how far this aide will go. I doubt if she has the money for a lawyer. But if she does sue then you will need a lawyer. A lawyer may be a good thing all around. Maybe pay her bills and extra for pain and suffering. The lawyer can help you decide how much for pain and suffering and have the aide sign off that she cannot sue if she excepts what is offered. Do not allow tthe aide to intimidate you.
Helpful Answer (6)
Reply to JoAnn29

In my state (MN) a caregiver is never considered a 1099 (independent contractor) no matter what (per what Stacy0122 stated). You can look it up for your own state's labor or eldercare laws online to verify.
Helpful Answer (2)
Reply to Geaton777

Did she sign a comp waiver? Independemt contractors have a GL policy and usually a waiver of comp.

Caregivers are not 1099 contractors but w2 employees so you violated law.

Pay her off or hire a PI and lawyer to fight it.

You will lose either way.
Helpful Answer (5)
Reply to Stacy0122

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