BLASKO (RUTH) VS. MERCY HEALTH PARTNERS - LOURDES, INC.
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RENDERED: DECEMBER 10, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000742-MR
RUTH BLASKO
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 07-CI-00705
MERCY HEALTH PARTNERSLOURDES, INC., d/b/a
LOURDES HOSPITAL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; MOORE AND THOMPSON, JUDGES.
MOORE, JUDGE: Appellant, Ruth Blasko, brought a common-law personal
injury claim against Appellee, Mercy Health Partners-Lourdes, Inc., d/b/a Lourdes
Hospital, alleging that Lourdes’ negligence resulted in the injuries she sustained in
a fall on Lourdes’ premises. Lourdes moved for summary judgment, asserting that
Blasko’s tort claim was barred by the exclusive remedy provision of Kentucky’s
Workers’ Compensation Act, Kentucky Revised Statute (KRS) 342.690(1). In a
March 27, 2009 order, the McCracken Circuit Court granted summary judgment in
favor of Lourdes. We affirm.
Ruth Blasko worked as a certified perfusionist. During her
deposition, Blasko described this position:
Blasko: Basically, during surgery, the surgeon needs a
still field, so—
Q: A still field?
Blasko: Yeah. Something that’s not moving—
Q: Okay.
Blasko: --because the surgery is very delicate, you know,
working on the heart. So, we have to reroute the blood
from the heart to the machinery, the heart-lung machine.
And you can’t have the lungs on the ventilator, you
know, breathing back and forth because it’s in his way,
you need everything still. So, we basically clamp the
heart and lungs out of circulation and reroute the blood
from the patient to the machine, and then basically the
machine acts like the heart and the lungs and keeps the
patient alive during surgery.
Q: Okay. And I guess this would be cardiac surgery or
—
Blasko: Yes.
Q: --open-heart surgery?
Blasko: Yes.
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Q: Would you be responsible for actually clamping part
of the physical body of the patient?
Blasko: No. The surgeon does that.
Q: Okay. Would it be fair to say that your job, then, was
machinery oriented?
Blasko: Yes.
Q: Okay. And it was called a heart-lung machine?
Blasko: Um-hum. Or the bypass machine. There’s
other machinery, as well, that we use; heater/coolers,
ACT machines, cell savers, balloon pumps, ECMOs.
Q: Okay.
Blasko: There’s a whole lot. VADs.
Q: So, without a perfusionist, the surgeon—
Blasko: You can’t do the surgery.
Q: -- would not be able to perform the surgery?
Blasko: Yes.
Q: Now, are there any other people that are qualified to
run these machines, or do you actually have to have a
certified perfusionist?
Blasko: You have to have a perfusionist.
Q: Do you know if there’s a requirement of the state or
the medical board of licensure or—I guess do you know
why you have to have a perfusionist perform that
activity?
Blasko: You have to know how to use the equipment and
understand the physics and the physiology and
everything, because it’s pretty complicated because
you’re adding a lot of different drugs and calculating
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different flows based on the patient. Every patient’s
different. Every surgery’s different. And you have to
know the different surgeons and their methods and be
able to think about what to do if something falls apart and
know how to change everything out, understand how to
put everything together, take everything apart. And it’s a
lot involved, so you have to be trained in it.
Q: What if I guess one of your assistants decided they
had learned all there was to know and even though they
didn’t have a certification they were in there performing
your activity during the surgery, would the hospital get in
trouble—
Blasko: Oh, yeah.
Q: --if an inspector walked in and—
Blasko: There’s no way that the assistant could do it.
No.
Q: So, they need someone of your qualifications—
Blasko: Correct.
Blasko testified that during an open-heart procedure, she followed the
orders of the cardiac surgeon. However, Blasko was employed by Fresenius
Medical Care, an international firm which provides perfusionists on an as-needed
basis. Fresenius had a contract with Lourdes to provide it with perfusionists to
assist cardiac surgeons performing open-heart procedures at Lourdes Hospital.
When an open-heart surgery was scheduled at Lourdes Hospital, Lourdes would
notify Fresenius, and Fresenius would then offer Blasko or its other perfusionists
the opportunity to work during that operation.
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Fresenius owned and maintained the equipment Blasko used during
open-heart procedures, but stored that equipment on Lourdes’ premises in a caged
area a short distance away from the room Lourdes designated for its open-heart
procedures. When an open-heart procedure was finished, Blasko would move the
equipment back into that room. Blasko was on the premises of Lourdes Hospital
on July 6, 2006, putting the Fresenius equipment back into that storage room
following an open-heart procedure, when she slipped and fell allegedly due to a
piece of plastic on the floor. Blasko claims to have suffered significant injuries as
a result of the fall.
On July 2, 2007, Blasko filed a workers’ compensation claim against
Fresenius, which maintained a policy of Workers’ Compensation insurance at all
relevant times; her claim was accepted and she has been paid over $31,468.53 in
medical expenses through its carrier. Blasko filed this tort action against Lourdes
on July 3, 2007.
ANALYSIS
As a preliminary matter, Blasko takes umbrage with the fact that, in
total, the trial court granted summary judgment in favor of Lourdes in an order that
consists of three sentences and no apparent reason for its decision. Although it
would have been better practice for the trial court to have added a further measure
of clarity, we note that 1) the only issue that was before the trial court was whether
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the exclusive remedy provision of Kentucky’s Workers’ Compensation Act applied
in favor of Lourdes; 2) Blasko made no request for more specific findings; and that
3) the order was a summary judgment order, and pursuant to Civil Rule (CR)
52.01, specific findings and conclusions of law are not required with summary
judgments. See Wilson v. Southward Inv. Co. No. 1, 675 S.W.2d 10 (Ky. App.
1984). Rather, summary judgment is proper if the record, when examined in its
entirety, shows that there is “no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” CR 56.03. “The record
must be viewed in a light most favorable to the party opposing the motion for
summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
Here, the question presented is one for the Court to decide as a matter
of law. Of relevance, KRS 342.690(1) states in part that “[i]f an employer secures
payment of compensation as required by this chapter, the liability of such employer
under this chapter shall be exclusive and in place of all other liability of such
employer to the employee . . . on account of such injury.” It further provides that
“employers” include “contractor[s] covered by subsection (2) of KRS 342.610.”
Id. KRS 342.610(1), in turn, makes “[e]very employer subject to this chapter . . .
liable for compensation for injury . . . without regard to fault as a cause of the
injury.” In what is sometimes referred to as “up-the-ladder liability,” the statute
also makes “[a] contractor who subcontracts all or any part of a contract . . . liable
for the payment of compensation to the employees of the subcontractor unless the
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subcontractor primarily liable for the payment of compensation has secured the
payment of compensation as provided for in this chapter.” KRS 342.610(2).
Furthermore, “[a] person who contracts with another . . . [t]o have work performed
of a kind which is a regular or recurrent part of the work of the trade, business,
occupation, or profession of such person shall for the purposes of this section be
deemed a contractor, and such other person a subcontractor.” Id.
The purpose of up-the-ladder workers’ compensation liability is “to
discourage a contractor from subcontracting work that is a regular or recurrent part
of its business to an irresponsible subcontractor in an attempt to avoid the expense
of workers’ compensation benefits . . . not to shield owners or contractors from
potential tort liability.” Gen. Elec. Co. v. Cain, 236 S.W.3d 579, 585, 587 (Ky.
2007) (citing Elkhorn-Hazard Coal Land Corp. v. Taylor, 539 S.W.2d 101, 103-4
(Ky. 1976)). However, “‘the humane spirit of the statute does not warrant its
extension beyond its legitimate scope.’” Cain, 236 S.W.3d at 587 (citing Gateway
Const. Co. v. Wallbaum, 356 S.W.2d 247, 249 (Ky. 1962)). Thus, “[i]f premises
owners are ‘contractors’ as defined in [the statute], they are deemed to be the
statutory, or ‘up-the-ladder’ employers of individuals who are injured while
working on their premises and are liable for workers’ compensation benefits . . .
[but] are immune from tort liability . . . with respect to work-related injuries.”
Cain, 236 S.W.3d at 585 (emphasis added).
Blasko asserts that the court erred in dismissing her tort action against
Lourdes because KRS 342.610(2)(b) cannot extend its immunity to Lourdes. Her
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reasons for this contention are that 1) Lourdes did not set Blasko’s work schedule;
2) Lourdes was not in charge of supervising Blasko; 3) Lourdes did not directly
pay Blasko; 4) Blasko was a perfusionist licensed by the Commonwealth; 5)
Blasko did not work exclusively for Lourdes; 6) Blasko followed the direction of a
heart surgeon; 7) Blasko worked exclusively with equipment which was owned
and maintained by Fresenius; and that 8) Lourdes simply provided the hospital
where the operations took place. These reasons, however, are not relevant to an
analysis under KRS 342.610.
To the contrary, the relevant analysis under KRS 342.610(2)(b) is
limited to answering the question of whether Blasko, in her role as a perfusionist,
was providing Lourdes with services that were “a regular or recurrent part of the
work” performed by Lourdes. The Kentucky Supreme Court recently defined such
work as that which is “customary, usual, or normal to the particular business
(including work assumed by contract or by law) or work that the business repeats
with some degree of regularity, and it is of a kind that the business or similar
businesses would normally perform or be expected to perform with employees.”
Cain, 236 S.W.3d at 588. The Court cautioned that “[t]he test is relative, not
absolute,” and advised that factors relevant to making the determination include
the contracting business’s “nature, size, and scope as well as whether it is equipped
with the skilled manpower and tools to handle the task the independent contractor
is hired to perform.” Id. (citing Arthur Larson and Lex K. Larson, Larson’s
Workers’ Compensation Law, § 70.06[5]).
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Here, it cannot be contested that the perfusion work performed by
Blasko pursuant to Fresenius’ contract with Lourdes was a “regular and recurrent
part” of operating a hospital that performs open-heart surgeries. Blasko herself
testified at length that an open-heart surgery cannot proceed without a perfusionist.
Similarly, Kyle Washburn, a surgical technician employed by Lourdes, testified via
deposition that it is necessary to have a perfusionist at every open-heart surgery;
and Joe Roberts, a registered nurse employed by Lourdes, testified via deposition
that perfusionists are needed exclusively for open-heart procedures.1
Regarding the factor of whether Lourdes was “equipped with the
skilled manpower and tools to handle the task the independent contractor was hired
to perform,” Blasko makes the point that, at the time Lourdes contracted with
Fresenius for perfusion services, it employed no perfusionists of its own and relied
upon equipment supplied by Fresenius. However, this point misses the mark. In
Blasko’s own words, because of the integral role that a perfusionist plays in every
open-heart surgery, Lourdes could not have performed open-heart surgery on any
patients without one present. Furthermore, “[e]ven though [a contractor] may
never perform that particular job with his own employees, he is still a contractor if
the job is one that is usually a regular or recurrent part of his trade or occupation.
Fireman’s Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 462 (Ky. 1986).
In sum, the record before this Court presents no factual issues of
whether the services a perfusionist renders are a “regular and recurrent part” of
1
Curiously, Blasko’s treating physician, Dr. Emily J. Rayes-Prince, agreed in her own deposition
that a hospital could not perform open-heart surgery in patients without a perfusionist.
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operating a hospital that performs open-heart surgeries. As such, Lourdes qualifies
as a “contractor” for purposes of KRS 342.610(2)(b). And, because its
subcontractor, Fresenius, had in place at the time of Blasko’s accident a workers’
compensation policy, Lourdes is entitled to the “exclusiveness of liability”
provided by KRS 342.690(1). Blasko’s tort claim against it is barred. Thus, we
affirm the trial court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rodger W. Lofton
Paducah, Kentucky
Richard L. Walter
Amy Harwood-Jackson
Paducah, Kentucky
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