Kelly v. Geriatric and Medical Services, Inc.

• Decision Date: 29 February 1996
• Parties: Joan P. KELLY, Plaintiff-Appellant, v. GERIATRIC AND MEDICAL SERVICES, INC. t/a Cooper River Convalescent Center, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 567

287 N.J.Super. 567

671 A.2d 631

Joan P. KELLY, Plaintiff-Appellant, v. GERIATRIC AND MEDICAL SERVICES, INC. t/a Cooper River

Convalescent Center, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Jan. 31, 1996.

Decided Feb. 29, 1996.

Jaffa Stein, Haddonfield, for appellant (Tomar, Simonoff, Adourian & O'Brien, attorneys; Franklin P. Solomon, on the brief).

Francis E. Schachtele, Iselin, for respondent (Blejwas, Knapp & Schachtele, attorneys; Mr. Schachtele, on the brief).

Before Judges SHEBELL, WALLACE and NEWMAN.

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

Plaintiff, Joan P. Kelly, appeals from an order granting summary judgment to defendant, Geriatric and Medical Services, Inc., t/a Cooper River Convalescent Center (CRCC), dismissing her personal-injury negligence complaint. The Law Division judge ruled that as a matter of law, she was a "special employee" of CRCC and, therefore, barred from bringing a tort action against her "special employer" by N.J.S.A. 34:15-8 of the Workers' Compensation Act. We affirm.

Plaintiff, a licensed practical nurse (LPN), was injured on January 16, 1991, when she slipped and fell on a wet floor while working at CRCC's health care facility. At the time, plaintiff was employed by Today's Staffing Services, Inc. (TSI), a labor services company in the business of supplying skilled nursing personnel to health care facilities on a temporary basis. Plaintiff's claim for workers' compensation benefits through the insurance carrier for TSI was paid without contribution from CRCC.

On November 12, 1992, plaintiff filed her complaint against CRCC, alleging that, on January 16, 1991, she was "employed by TSI," and "in the course of her employment with TSI as a nurse," she slipped and fell on a freshly mopped, wet floor "in the course of her ... work at the Cooper River Convalescent Center." Plaintiff alleged that as a "business invitee" at defendant's health care facility, CRCC had a duty to provide her with a "safe place to work," which it negligently breached by exposing her to "unsafe conditions during the course of her employment." Among other defenses asserted, was that at the time of her accident, plaintiff was an "employee of this defendant" and, therefore, her sole and exclusive remedy against it was "under the New Jersey Workers' Compensation Law."

After completion of discovery, CRCC moved for summary judgment. CRCC acknowledged that plaintiff was an "employee ... of TSI," but argued that because plaintiff was an "agency nurse" obtained by defendant from "a temporary personnel agency," CRCC was her "special employer" and plaintiff was, therefore "barred by the workers' compensation statute's surrender of other remedies provision, N.J.S.A. 34:15-8." Plaintiff responded that "at no time did she consider herself an employee of CRCC," and that at the time of her accident, she was "employed by [TSI], a nursing agency," was an "employee of [TSI] only," and was "not the special or borrowed employee of [CRCC]."

On September 23, 1994, the motion judge held that plaintiff was a "special employee" of CRCC and, therefore, "the workers' compensation bar is applicable." He, therefore, entered an order granting summary judgment in favor of CRCC and dismissed plaintiff's complaint.

The facts are not in great dispute. For several years, plaintiff had been contemporaneously employed by TSI and several other temporary nurse staffing agencies, and had been temporarily assigned to work as an "agency nurse" at various health care facilities, including defendant's. Plaintiff had always worked as an agency nurse because she liked the scheduling flexibility it provided, which was not available to a "staff nurse" regularly employed on the payroll of a health care facility. It was plaintiff's "personal preference to be an agency nurse rather than a staff nurse."

Before plaintiff's fall, defendant would from time to time decide that all nurses working at its various health care facilities "should go staff," that is, "should ... become employees directly of [CRCC]." Defendant had at these times "offered plaintiff a position ... to work on staff." Plaintiff testified: "when that happened, I refused to join staff and I would go work somewhere else," and "then ... the furor would die down and I would go back" to defendant's facility "[t]hrough an agency."

The applicable, though not exclusive, legal criteria to establish a special employer-special employee relationship involves the following fact-sensitive five-pronged test:

(1) the employee has made a contract of hire, express or implied, with the special employer;

(2) the work being done by the employee is essentially that of the special employer 3) the special employer has the right to control the details of the work;

(4) the special employer pays the employee's wages; and

(5) the special employer has the power to hire, discharge or recall the employee.

See Antheunisse v. Tiffany & Co., Inc., 229 N.J.Super. 399, 402-03, 551 A.2d 1006 (App.Div.1988), certif. denied, 115 N.J. 59, 556 A.2d 1206 (1989); see Volb v. G.E. Capital Corp., 139 N.J. 110, 116, 651 A.2d 1002 (1995); see also 1B Larson, Workmen's Compensation Law, § 48.00 at 8-434 (1994).

CRCC urges that although plaintiff and defendant had no "express contract of employment," an implied contract was entered into under which plaintiff "accepted CRCC as her special employer." CRCC reasons that the regular business activity of plaintiff's general employer, TSI, was the placing of nurses in temporary employment with employers such as CRCC. Therefore, it argues, it was impossible for plaintiff to have been doing the work of her general employer, TSI, while at CRCC, and thus, the work she did at CRCC was that of her special employer.

Plaintiff does not dispute that the work she performed at defendant's facility was essentially that of CRCC. She notes, however, that the reverse side of the TSI written form, which plaintiff and CRCC's staff supervisor had to fill out and sign to confirm that plaintiff had worked at defendant's facility on her assigned dates and shifts states:

Today's Staffing will supply staff personnel to Client upon Client request. Personnel working for Client pursuant to this Agreement shall be considered employees of Today's Staffing only. Today's Staffing shall be responsible for payment of wages, withholding of taxes and maintaining required insurance coverages, including general and professional liability insurance.

[Emphasis Added.]

On the issue of control, CRCC's assistant administrator testified at her deposition that "once they [agency nurses] go on the floor they are working for us" and are subject to the same "control" while working on the floor as one of CRCC's own staff nurses vis-a-vis "what [has] to be done." Plaintiff agreed generally with this proposition, but noted that as a skilled LPN, no one had to tell her "what to do" vis-a-vis her duties as an LPN working on the floor.

As to the factor of who paid the employee's wages, the payor on all of plaintiff's paychecks was TSI. Plaintiff never received a paycheck directly from CRCC, nor did she "receive any benefits in terms of fringe benefits" when she worked as an agency nurse at the facility. There is no evidence as to the breakdown of the fee paid to the agency by CRCC, and no showing that the fee is directly tied to plaintiff's wages plus a fixed percentage for overhead. Defendant was never told what the agency nurse received as pay from the agency.

CRCC could discharge an agency nurse only to the extent that it could cause the nurse to be removed from the facility. If an agency nurse "performed badly," the nurse's agency would be told by CRCC to "not send that person to this facility" in the future. Defendant maintained a "do not call list," and any agency nurse who did not perform professionally could be placed on the "list of do not calls," and would not be allowed back regardless of what agency attempted to send the nurse.

Given this factual background, we apply the law. New Jersey "allows an employee, for the purpose of workers' compensation to have two employers, both of whom may be liable in [workers'] compensation." Antheunisse, supra, 229 N.J.Super. at 402, 551 A.2d 1006. In such circumstances, the right to recover workers' compensation benefits serves to bar the employee from maintaining a tort action against either employer. See Ibid.; Murin v. Frapaul Const. Co., 240 N.J.Super. 600, 606-07, 573 A.2d 989 (App.Div.1990).

A critical criterion in determining whether special employment exists is the requirement of a contract, express or implied, between the employee and the special employer. See Antheunisse, supra, 229 N.J.Super. at 401-05, 551 A.2d 1006; Chickachop v. Manpower, Inc., 84 N.J.Super. 129, 137, 201 A.2d 90 (Law Div.1964); see also Larson, supra, § 48.23 at 8-524, 8-528, 8-532 ("employers obtaining workers from the kind of labor service typified by Manpower, Inc., have usually, but not invariably, been held to assume the status of special employer").

A contract of employment "may be express or implied." White v. Atlantic City Press, 64 N.J. 128, 133, 313 A.2d 197 (1973). A hiring contract does "not require formality." Gomez v. Federal Stevedoring Co., Inc., 5 N.J.Super. 100, 103, 68 A.2d 482 (App.Div.1949). While assent to the offer of employment "must be manifested in order to be legally effective, it need not be expressed in words." Ibid. The necessary assent may be expressed in words, or it may be "implied from conduct without words." Ibid. See Deskovick v. Porzio, 78 N.J.Super. 82, 86-87, 187 A.2d 610 (App.Div.1963) ("contract implied in fact calls for the establishment of a consensual understanding," which may be "inferable from the circumstances under which one furnishes services"). In Antheunisse, supra, 229 N.J.Super. at 404, 551 A.2d 1006, we pointed out that "plaintiff knew that [the personnel agency]...