Tuesday, Jan. 18, 2005 | 11:04 a.m.
Robert Nzovi came to Las Vegas believing that a gig in the "Entertainment Capital of the World" would boost his career as an acrobat.
But the 27-year-old, Kenyan-born entertainer's dreams and life were shattered on June 12, his second day on the job at the Desert Passage at the Aladdin, when he fell jumping from a human pyramid and broke his neck.
Although he survived, Nzovi was paralyzed from the neck down. He remains in a local rehabilitation center. His medical care is being paid for by taxpayers via Clark County indigent care funds, rehabilitation officials said.
The bill is well into the hundreds of thousands of dollars so far, his wife, Inetha Nzovi said. In fact at the average rates for the type of daily care he has been receiving for months, the cost could be past $1 million by now, she said.
Clark County Social Service Director Darryl Martin said because of federal laws that protect patient confidentiality he could neither say what the county is paying for a particular patient nor confirm that Nzovi is under consideration for indigent medical assistance.
Martin said that for the fiscal year that ended June 30, 2004, the county paid $74.5 million in indigent medical assistance for in-patient care, out-patient care, nursing care, group care and equipment for patients who could not afford those costs.
Inetha Nzovi said Clark County Social Service contacted her to request her income records, which will factor into how much taxpayers will pay under the county's indigent care program.
She said her family has not yet paid anything for Nzovi's medical care. She maintains that the people who hired Nzovi and the operators of the location where he was injured also should be responsible for paying some of his medical bills.
But Nzovi's contract with his booking agent, Spectrum Entertainment of Las Vegas, does not include state workers' compensation coverage or health insurance from the firm that hired him.
Nzovi's injury, entertainment industry and state officials say, shines a light on a dark side of the industry that long has classified specialty acts as independent contractors, often denying them benefits under a definition that they are not really employees of the places that book them.
"When it comes to specialty acts, that is the norm for Las Vegas -- and it is the acts as well as the producers that want to keep it that way," said longtime Las Vegas producer David Saxe.
"The acts want to be independent contractors because they get all of their money without anything taken out for things like taxes and insurance. Many producers like it because it saves them about 10 percent in benefit costs. Everyone is happy until something like this (Nzovi's accident) happens."
Saxe is the leaseholder on the V Theatre at the Desert Passage, where three of his shows are produced, including "V, the Ultimate Variety Show." Nzovi was not a member of any of those casts, nor was he employed by Saxe. Nzovi instead was booked as entertainment for the retail area of the Desert Passage.
"This (independent contractor policy) is the sacred cow of the Las Vegas entertainment industry that producers and the acts don't want to see touched," Saxe said. "Putting a spotlight on it opens a major can of worms."
Federal and state definitions of an independent contractor are similar.
The IRS, in a brochure defining employees and independent contractors, says: "If someone has the right to control only the result of your work and not the way in which you get that result, then you are probably an independent contractor."
State law says, "independent contractor means a self-employed person who agrees ... to do work for the client for a certain fee (and is) not subject to the supervision or control of the person except as to the result of the work."
Nzovi's four-page contract with Spectrum, however, appears to give Nzovi pretty specific guidelines to follow.
The contract, in part, says: "Artist will perform on a schedule (set) by operator. ... Artist shall perform as directed. ... Operator may at its option cancel this contract at any time for any reason."
The IRS pamphlet says: "In a nutshell, if the person who employs you sets your work hours ... tells you what to do and how to do it and can fire you, then chances are you're an employee, not an independent contractor."
Nevada Labor Commissioner Michael Tanchek said the wording of Nzovi's contract might not pass his "laugh test."
"I call it my laugh test because if I can read the contract and determine it truly is a business-to-business arrangement and can keep a straight face without laughing then the person hired likely is an independent contractor," he said. "An independent contractor's contract should not be fuzzy at all."
Because Nzovi is classified as an independent contractor, the Labor Commission and the Nevada Occupational Safety and Health Administration, which investigate possible workplace safety violations, have no jurisdiction in his matter.
Nzovi, who is 5 feet 6 inches tall, weighs 140 pounds and has been a professional acrobat for about five years, was, under the terms of his contract, to earn $500 per 32-hour week as a member of a six-man troupe.
However, Nzovi says a representative for Spectrum Entertainment changed the agreement requiring that he and his co-workers not receive a wage but rather perform solely for tips. Still, Nzovi and the others decided to perform.
"I feel so bad," said Nzovi, laying on his bed at Manor Health Care in Summerlin, his dreadlocks fanned across his pillow. "I never even got paid my tips."
If a claim for wages is eventually filed with the Nevada Labor Commission, it could result in a determination that Nzovi was not an independent contractor, but rather an employee, and that could open the door for other state agencies to look into the incident.
Of course, Tanchek said, such a decision also can be challenged in the courts.
Tanchek, who was a forester in the 1980s and an independent contractor on that job, acknowledged that some people who hire employees as independent contractors might be "trying to avoid us, workers' comp, another state agency or the IRS."
A bone of contention in Nzovi's contract is the denial of insurance coverage.
It reads: "No insurance is available for artist from operator. Artist agrees to provide ... own medical insurance. Operator shall have no liability ... to artist as a result of injury while performing."
Las Vegas entertainment attorney Barry Levinson said the part about the operator having no liability "might not hold up in court."
"I might argue he (Nzovi) was an immigrant and did not understand it," Levinson said. "And I would question whether the terms of the contract were explained in detail to him."
Levinson, who was contacted by the Sun to comment on entertainment law in general and how it might pertain to Nzovi's situation, became interested in Nzovi's plight and has since talked to Nzovi's family about taking his case.
No lawsuit has been filed over the incident according to District Court records.
Levinson said that while much of the Las Vegas entertainment industry operates in a professional manner, especially producers for bigger shows, performers on the fringe should take heed of Nzovi's plight when negotiating their contracts.
"They should look at who is booking the act and exactly who they are working for, whether it is the hotel or someone contracted by the hotel," Levinson said, noting that if the property is the employer it is possible the worker could get a better benefits package.
Nzovi suffered his injuries while dismounting from what appeared to be a shaky five-man pyramid, according to a videotape of his performance that was obtained by the Sun.
Nzovi appeared to overstep the landing and flipped neck-first to the mat in a matchbook position, the video shows.
Nzovi spent two months at the University Medical Center and has been at Manor Health Care since September.
Nzovi's wife, Inetha, who married him on Dec. 6 in a ceremony at Manor Health Care before returning to their home in Evansville, Ind., questions why in a city that boasts its importance in the entertainment world no one has stepped forward to help one of the industry's own.
"I am so frustrated by what has happened," she said. "It has been handled hush, hush -- keep it quiet and maybe it will go away. Someone who was in charge should have come forward and taken some of the responsibility."
But, unless a court or the state eventually determines otherwise, no one but Nzovi may be responsible for his situation.
One reason is that the state's workers' compensation law paves the way for producers to sidestep coverage for their performers. Passed in 1947, the law exempts from workers' compensation coverage for "any person engaged as a theatrical or stage performer or in an exhibition."
Nzovi's longtime booking agent Stephan Huller of World Star Entertainment of Buffalo, N.Y., who says he did not play a role in booking Nzovi's Las Vegas engagement because he does not have exclusivity rights, was surprised to learn that workers' compensation is not required for entertainers in Nevada.
"When I book for Disney or Six Flags, they require me to have blanket workers' comp for the performers," Huller said, adding that he has provided Nzovi with industrial insurance for his past performances, including as an acrobat for Harlem Globetrotter basketball game halftime shows.
"It is beyond me how a place as major as the Desert Passage would allow the (Las Vegas) booking agent not to provide (workers' compensation) insurance and that the state of Nevada allows that."
Chuck Verre, chief administrative officer for the Nevada Division of Industrial Relations, which oversees workers' compensation, says in the 20 years he has been with the agency he has not seen any effort to change the 58-year-old law.
"Some producers voluntarily cover their independent contractors (with workers' compensation) for their own protection," he said. "Those who are exempted from workers' compensation theoretically could look to the producer for recourse in cases of negligence.
"But workers' comp is a no-fault system where the employer cannot be sued for negligence. It is designed to eliminate protracted litigation."
Verre says his office can only enforce the law, not recommend changes to it. That, he said, would have to be initiated by a legislator or a lobbyist.
And Verre agrees with Saxe that performers receiving paychecks free of deductions and producers saving money on benefit costs casts serious doubt that the entertainment industry will seek changes to the long-standing statute.
Saxe admits that in his earlier years as a producer for shows featuring his sister, longtime local magician Melinda, the First Lady of Magic, "I cut corners" by taking advantage of the workers' compensation exemption for entertainers. He says a number of producers still do.
But five years ago, after two of Saxe's dancers were seriously injured in a car accident, he started providing not only workers' compensation, but also health insurance for his independent contractors and employees.
"I care about the people who work for me, but also, I just don't need the aggravation and bad publicity for situations like what happened to him (Nzovi). It's not worth the money that might be saved."
Desert Passage officials have referred all inquiries about Nzovi to Spectrum Entertainment, which they say is no longer affiliated with the retail mall. Attempts to reach a Spectrum representative for comment were not successful.
Asked if he thinks he ever will fully recover, Nzovi said, "I believe I will be OK."
Huller said he can't help but think that what has happened to his former client is akin to a well-written tragedy, intertwined with the irony that Nzovi thought the Las Vegas job would change his life -- and it did, but not as he could have envisioned in his worst nightmare.
"The word tragedy is so often overused," Huller said. "But in every sense of what the Greeks wrote about in their tragedy plays, what happened to Robert and what is continuing to happen to him is a real tragedy."
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