AMY LEE v. ST. BARNABAS MEDICAL CENTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5983-04T15983-04T1

AMY LEE,

Plaintiff-Appellant,

v.

ST. BARNABAS MEDICAL

CENTER,

Defendant-Respondent.

________________________________________________________________

 

Argued May 9, 2006 - Decided June 5, 2006

Before Judges Kestin and Lefelt.

On appeal from the Superior Court

of New Jersey, Law Division,

Essex County, Docket No. L-11730-02.

Marilyn K. Barbosa argued the

cause for appellant.

Jill B. Flynn argued the cause

for respondent (Dollinger &

Ostrowsky, attorneys; Michael L.

Ostrowsky, of counsel; Ms.

Fleisch, on the brief).

PER CURIAM

Plaintiff Amy Lee, a licensed nurse, was assigned by her employer, Medical Center Health Care Services, Inc. (Medical Services), to provide nursing services to defendant St. Barnabas Medical Center. Plaintiff fell and was injured in defendant's parking lot as she was leaving work at the end of her shift. She appeals from an order entered by Judge Hollar-Gregory, which found plaintiff to be a special employee of defendant and dismissed her personal injury complaint because plaintiff's "exclusive remedy" was under the Workers' Compensation Act, N.J.S.A. 34:15-8. We affirm.

Before accepting employment with Medical Services, plaintiff had been employed by defendant as a staff nurse. At the time of her accident, plaintiff was receiving COBRA medical benefits through her former employment with defendant, but had otherwise completely severed her prior employment relationship with the hospital.

Medical Services, plaintiff's new employer, is a licensed temporary employment agency specializing in providing temporary medical and non-medical personnel to various facilities, including defendant. Medical Services maintains specialized expertise in the management of the staffing functions at institutions like defendant.

The agreement between defendant and Medical Services specified that Medical Services was to provide defendant "Nursing Personnel, Medical Technology Personnel and Clerical Personnel upon the request made by [defendant]." The agreement further stated that "[i]n the performance of all services pursuant to this Agreement, [Medical Services] shall be deemed to be an independent contractor to [defendant] and no relationship of employer or employee is created by this Agreement between [Medical Services], its employees and contractors and [defendant]."

Medical Services maintained an office on defendant's premises and paid plaintiff directly for her services to defendant. Before commencing an assignment, plaintiff was required to report to Medical Services to receive her specific assignment. After beginning an assignment, Medical Services would dictate the frequency, length and timing of plaintiff's breaks while on the assignment. As an employee of Medical Services, plaintiff was required to pay for her own malpractice insurance.

Once plaintiff was dispatched to a unit of defendant by Medical Services, according to plaintiff she would report to "whoever was in charge of the unit that I worked for . . . that night." Thus, on the night before the morning of plaintiff's accident, she had reported to one of defendant's supervising nurses. The supervisor provided plaintiff with a patient list for the particular shift she was to work. Plaintiff claims that she received no further instructions from defendant's supervising nurse and that she performed her services as required by the patients' condition and charts.

"[U]nder workers' compensation, an employee can 'have two employers, both of whom may be liable in compensation. However, recovery against one bars the employee from maintaining a tort action against the other for the same injury.'" Walrond v. County of Somerset, 382 N.J. Super. 227, 234 (App. Div. 2006) (quoting Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989) (citing Blessing v. T. Shriver and Co., 94 N.J. Super. 426, 429-30 (App. Div. 1967))). The relationship between the employee and the other employer has come to be called "special employment." In our case, for example, plaintiff received workers' compensation benefits for her injuries from her regular employer, Medical Services. She then sued defendant, who moved for summary judgment, claiming that suit was barred because the hospital was in fact plaintiff's "special employer." If defendant were her "special employer," then plaintiff's tort action may not be maintained. Murin v. Frapaul Constr., 240 N.J. Super. 600, 607 (App. Div. 1990).

On appeal, plaintiff claims Judge Hollar-Gregory erroneously granted defendant summary judgment in the face of genuine issues of material fact. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff specifically argues that a factual dispute was present regarding whether she was "a special employee [of defendant] because there was no express or implied contract of hire between the parties as evidenced by the lack of control over the work details of defendant."

We address the following five questions to determine whether special employment exists: (1) whether an express or implied contract of hire exists between the alleged special employer and the claimed special employee; (2) whether the work being done at the time of the injury was essentially that of the alleged special employer; (3) whether the alleged special employer has the right to control the details of the claimed special employee's work; (4) whether the special employer pays the claimed special employee's wages directly or indirectly; and (5) whether the special employer could hire or fire the claimed special employee. Walrond, supra, 382 N.J. Super. at 235-36, 237-41 (citing Volb v. G.E. Cap. Corp., 139 N.J. 110, 116 (1995), and Blessing, supra, 94 N.J. Super. at 430-31).

In this case, only question (4), dealing with payment of the special employee, is not in issue. Plaintiff first claims that she had no employment contract with defendant. However, plaintiff accepted the patient list from defendant's supervising nurse and provided services to the patients on that list. She therefore impliedly consented to employment by defendant. See Kelly v. Geriatric and Med. Servs., Inc., 287 N.J. Super. 567, 574 (App. Div.), aff'd o.b., 147 N.J. 42 (1996).

While plaintiff was providing nursing services to the patients on defendant's list, there is no question that she was performing defendant's work. At oral argument, however, plaintiff argued that her work for defendant ended when her shift concluded, and at the time of her injury she was once again working exclusively for Medical Services. We reject this technical, restrictive argument.

Plaintiff had concluded her direct services for defendant's patients but had not yet left the hospital parking lot when the accident occurred. Plaintiff's employment with defendant continued until plaintiff left "the employer's place of employment, excluding areas not under the control of the employer[.]" N.J.S.A. 34:15-36. The parking area was under the control of defendant and plaintiff remained in her employment at the time of her fall. See Bradley v. State of N.J., 344 N.J. Super. 568, 574-75 (App. Div. 2001). Employees, "'as part of [their] employment, [are entitled to] safe egress from the premises.'" Brower v. ICT Group, 164 N.J. 367, 374 (2000) (quoting Cressey v. Campus Chefs, Div. of CVI Serv., Inc., 204 N.J. Super. 337, 344 (App. Div. 1985)). Until plaintiff left the parking area, she remained in the employment of defendant.

"Under the 'right to control test,' the actual exercise of control is 'not as determinative as the right of control itself,' because in many instances, 'the expertise of an employee precludes an employer from giving [her] any effective direction concerning the method [she] selects in carrying out [her] duties.'" Kelly, supra, 287 N.J. Super. at 575-76 (quoting Smith v. E.T.L. Enterprises, 155 N.J. Super. 343, 350 (App. Div. 1978)).

Plaintiff argues that this case can be distinguished from Kelly because Medical Services maintained a management office on defendant's premises. However, plaintiff received her patient assignments from defendant's supervising nurse. There is nothing in the record to suggest that any medical or nursing questions were required to be directed to Medical Services. Because plaintiff received her assignments from defendant's supervising nurse, we infer that that nurse had the right to direct plaintiff's performance to the degree necessary, considering plaintiff's professional training. See Kelly, supra, 287 N.J. Super. at 576-77.

The presence of Medical Services on defendant's premises appears to be solely for administrative purposes. There is no evidence whatsoever that Medical Services had the right to control the details of the care plaintiff provided to the patients on the list supplied by defendant's supervising nurse. This conclusion is buttressed by the fact that the contract between defendant and Medical Services required that temporary personnel, such as plaintiff, "conduct themselves in accordance with the standards of [defendant] and the requirements of all governmental bodies and accrediting agencies having jurisdiction over [defendant]."

Although it was initially Medical Services' obligation, under its agreement with defendant, to properly "orient" its employees to the pertinent standards and requirements of defendant, we have little doubt that if plaintiff failed to so conduct herself, the supervising nurse or some other supervisory personnel at defendant would ensure that she no longer worked at that facility.

 
Accordingly, our review of the record leads us to conclude that Judge Hollar-Gregory correctly granted defendant summary judgment. A special employment relationship was present between plaintiff and defendant and, thus plaintiff's tort complaint against defendant was precluded. See Murin, supra, 240 N.J. Super. at 607.

Affirmed.

(continued)

(continued)

8

A-5983-04T1

June 5, 2006