Hillman v. COMM-CARE, INC.

• Decision Date: 21 March 2001
• Docket Number: No. 00-1048.,00-1048.
• Citation: 782 So.2d 1147
• Parties: Donna HILLMAN v. COMM-CARE, INC., COMMUNITY CARE CENTER OF LEESVILLE.
• Court: Court of Appeal of Louisiana — District of US

782 So.2d 1147

Donna HILLMAN v. COMM-CARE, INC., COMMUNITY CARE CENTER OF LEESVILLE.

No. 00-1048.

Court of Appeal of Louisiana, Third Circuit.

March 21, 2001.

Writ Granted June 15, 2001.

George Arthur Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, Counsel for Donna Hillman.

James Aristide Holmes, New Orleans, LA, Counsel for Comm-Care, Inc.

Court composed of YELVERTON, THIBODEAUX, DECUIR, AMY, and GREMILLION, Judges.

YELVERTON, J.

This is the second time that this case has been before us involving the issue of whether Donna Hillman, a beautician at Comm-Care Inc., Community Care Center of Leesville (the nursing home), was an employee and therefore covered for workers' compensation benefits. On August 6, 1996, she injured her back while lifting a patient from a wheelchair to the shampoo chair in the nursing home's beauty salon. She was temporarily, totally disabled for several months. Her injury and the amount of benefits are not disputed.

Ms. Hillman filed a workers' compensation claim against the nursing home on August 4, 1997. The nursing home denied that there was an employer/employee relationship. Its position then was based primarily upon an earlier decision of this court in Boswell v. Kurthwood Manor Nursing Home, 94-703 (La.App. 3 Cir. 12/7/94); 647 So.2d 630, writ denied,95-0050 (La.3/17/95); 651 So.2d 267. Ms. Boswell was a hair dresser for Kurthwood Manor Nursing Home when she was injured in 1991. Kurthwood was the predecessor of Comm-Care, Inc., which occupies the same facility. We found Ms. Boswell was not an employee.

Relying on Boswell, the successor nursing home filed a motion for summary judgment asserting that Ms. Hillman was not an employee and therefore not entitled to workers' compensation benefits. The Office of Workers' Compensation granted summary judgment in favor of the nursing home finding that Ms. Hillman was not an employee of the facility when she was injured in 1996. Ms. Hillman appealed, and in Hillman v. Comm-Care, Inc., 98-1341 (La.App. 3 Cir. 5/19/99); 732 So.2d 841, this court reviewed the summary judgment evidence de novo. Discussing the summary judgment evidence and finding the case to be "clearly distinguishable from Boswell," 732 So.2d at 845, the five-judge panel reversed. This court held that the trial judge erred in making a legal determination that no employer/employee relationship existed. On remand and after a trial, a different trial judge found that Ms. Hillman was an employee of the nursing home entitling her to workers' compensation benefits and awarded her $10,000 in attorney's fees.

The appeal of that ruling is now before us. The nursing home assigns two errors: (1) the finding that Ms. Hillman was an employee, and (2) the award of attorney's fees and legal interest.

On remand at the trial on the merits, Ms. Hillman put on the evidence that she had introduced at the summary judgment hearing, together with additional evidence. She testified that she interviewed with Mr. William Lang, the administrator, for the position. Ms. Gaynell Ford, the activities coordinator for the nursing home, corroborated this, saying she had introduced Ms. Hillman to Mr. Lang. Ms. Ford also testified that Mr. Lang dismissed Ms. Hillman's predecessor after a short and unsatisfactory tenure. Mr. Lang could not recall the lady he had dismissed, but he did not dispute Ms. Ford.

Ms. Hillman testified, and her testimony was supported by that of Gloria York, another cosmetologist who worked at the nursing home after Ms. Hillman. Ms. Hillman testified that at the initial interview, Mr. Lang had told her there was a price list on the mirror of the beauty shop, stating what she could charge and there was another list posted stating what "we could do and what we couldn't do." Both lists were put in evidence. The second list, with the heading "Beauty & Barber Shop Rules," listed 13 rules. Those rules gave detailed instructions for Ms. Hillman to follow concerning maintenance of the shop and equipment, sweeping the floors, and the care and sanitation of counters, mirrors, sinks, chairs, combs, brushes, clippers, scissors, and razors. One of the rules required that she notify the nursing department of any infection, abrasion, or infestation observed on a resident.

There was further testimony that when Ms. Hillman arrived for work at 8:00 a.m. on Mondays and Wednesdays, working days, and the door to the beauty shop was unlocked for her, there was a list on the door put there by the nurses that told her what residents would be coming in and what she was supposed to do for them. The list included the "perms," the people in the Alzheimers ward, those in the skilled care unit, and the paraplegics— those she would have to go and take care of in their rooms. In those situations, the nurses would go with her and stay with her until she was done. If the resident was "not competent" the nurses would tell her how to cut the resident's hair.

She was not allowed to accept tips. She was on call for emergencies and was expected to be there when called for funerals or weddings. Nobody else performed beautician's services besides her while she was there. She was required to complete the list on her door before she could leave. Often she worked through the lunch hour to accomplish this.

At the hearing on the motion for summary judgment, the evidence for the nursing home came in by way of affidavits executed by nursing home personnel, and Ms. Hillman's deposition. At the trial on the merits, the testimony for the nursing home came in through Sheila Stomps, a nursing home employee, Mr. Lang, and the cross-examination of Ms. Hillman. Ms. Stomps testified that the nursing home did not pay Ms. Hillman, she was not on the payroll, no social security was withheld, no income taxes were withheld, and no insurance or medical benefits were paid to her.

Our careful examination of the record reveals that no additional evidence was offered by the nursing home at the trial on the merits beyond what had been submitted with the motion for summary judgment. The nursing home relied at the trial on the merits on the same substantive evidence it had presented at the hearing on the motion for summary judgment. At oral argument the nursing home candidly agreed that that was so. The evidence introduced at the trial on the merits added nothing substantial beyond its offerings on the motion for summary judgment.

After considering this evidence, and guided by our remand opinion, the trial court, finding in favor of Ms. Hillman, gave the following reasons for judgment:

Now, based upon my review of the evidence as well as the testimony that's been presented here today, considering the first issue of selection and engagement, there's really no question that whether through an agent or directly Ms. Hillman was sought out by the nursing home to provide cosmetology services for the nursing home, which I believe was formally known as the Kurthwood Manor Nursing Home, it was bought out by a separate outfit and now is known as Community Care Center. So in the Boswell case as well as the case we have here today, the same nursing home in Leesville is at issue. Boswell is very factually similar to this case, the Hillman case, in that the nursing home had apparently engaged the services of a licensed beautician to take care of the residents' needs with regard to washing, cutting, setting, perming, and other services. Ms. Hillman performed those exact services. With regard to the payment of wages, there was no withholding or other specific employment type activity with regard to the payment of Ms. Hillman, however Ms. Hillman's price schedule was controlled by the nursing home, her hours were controlled by the nursing home, in that she had to be at the nursing home facility for eight o'clock a.m. and she would work until the residents were completed. She testified and other employees testified that at eight o'clock a.m. there would be a line of nursing home residents waiting for the various services to be performed, and Ms. Hillman testified that she would not be able to at some point stop her day, but she simply worked through until she finished, in some cases having to come back to the facility to complete nursing home residents and in other cases going to the nursing home residents' rooms to provide the services when they were not able to—they were not able to come to the facility. The facility itself I think is determinative of the-both the control as well as the—I can't say wages, but certainly the facility, the beauty salon itself falls under the power of control in that most of the services that were performed were performed in the beauty salon. Ms. Hillman testified she did not have a key to the salon, but that she was there on the appointed day, Mondays or Wednesdays, at eight o'clock a.m., and when she would leave she would notify the nursing home personnel who would in fact come in and lock the facility. As part of the record, there was various documents, including the price list, which was posted on the mirror in the salon by the nursing home. Also in P-5 and six with regard to the Medicare and Medicaid agreements, it was identified that the nursing home would provide personal services to the residents, certainly personal services whether they considered luxury or otherwise, could be considered the beautician services that she performed. Also there were contained in P-7 the beauty and barber shop rules, which required certain conduct of Ms. Hillman including the hygiene of various combs, scissors, other aspects of her job, as well as the, I think the term was germicide, to prevent the spread of disease, and also she testified that if she found any type of scalp disease or legions [sic] she was to immediately report this to the nursing home personnel and that they would give her various medications to apply to those things. Again, all going towards the nursing home's control of what Ms. Hillman did for the

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