Whicker v. Compass Group USA, Inc.

• Decision Date: 05 April 2016
• Docket Number: No. COA15–1201.,COA15–1201.
• Citation: 784 S.E.2d 564,246 N.C.App. 791
• Court: North Carolina Court of Appeals
• Parties: Crystal WHICKER, Employee, Plaintiff, v. COMPASS GROUP USA, INC./Crothall Services Group, Employer, Self–Insured (Gallagher Bassett Services, Inc., Administrator); and Novant Health, Inc., Alleged Joint Employer, Self–Insured, Defendants.

246 N.C.App. 791

784 S.E.2d 564

Crystal WHICKER, Employee, Plaintiff,

v.COMPASS GROUP USA, INC./Crothall Services Group, Employer, Self–Insured (Gallagher Bassett Services, Inc., Administrator); and Novant Health, Inc., Alleged Joint Employer, Self–Insured, Defendants.

No. COA15–1201.

Court of Appeals of North Carolina.

April 5, 2016.

Law Offices of James Scott Farrin, by Michael F. Roessler, for plaintiff-appellant.

Young Moore and Henderson P.A., Raleigh, by Angela Farag Craddock, for defendant-appellee Compass Group USA, Inc./Crothall Services Group.

Orbock Ruark & Dillard, PC, by Barbara E. Ruark, Winston–Salem and Jessica E. Lyles, for defendant-appellee Novant Health, Inc.

TYSON, Judge.

Crystal Whicker ("Plaintiff") appeals from the Opinion and Award of the Industrial Commission, which concluded she is not entitled to workers' compensation benefits from Defendant Novant Health, Inc. ("Novant"). We affirm.

I. Background

Defendant Crothall Services Group ("Crothall") is a division of Defendant Compass Group USA, Inc. ("Compass Group"). Crothall contracts with healthcare organizations to provide standardized cleaning services of their facilities. In January 2013, Novant and Crothall entered into a contract, under which Crothall provided cleaning services to thirteen Novant healthcare facilities in North Carolina, including Forsyth Medical Center. Crothall provides 230 employees to clean Forsyth Medical Center's 1.8 million square foot facility.

The "Environmental Services and Supplies Agreement" between Crothall and Novant contains over fifty pages of Novant's specific expectations of Crothall's cleaning services. For example, Novant mandated that Crothall's housekeepers "[d]ust ledges over eye level including over bed lights," "spot clean interior of outside windows up to 6 feet," and "[d]ust all low ledges, furniture and equipment to a height of 6 feet from the floor."

Plaintiff was employed as an environmental services housekeeper by Crothall, and was assigned by Crothall to work at Forsyth Medical Center. On 2 June 2013, Plaintiff clocked out and left Forsyth Medical Center for her lunch break. Plaintiff fell, while walking in the parking lot of Forsyth Medical Center, and injured her left shoulder. She reported the injury to her supervisor at Crothall. Plaintiff was treated at the Forsyth Medical Center emergency room and diagnosed with a left shoulder fracture.

Compass Group filed a Form 19 (Employer's Report of Employee's Injury or Occupational Disease to the Industrial Commission) on 19 June 2013. On the same day, Compass Group filed a Form 61 (Denial of Workers' Compensation Claim), and alleged Plaintiff's injury "is not compensable as it is not causally related to her employment."

Plaintiff ultimately returned to her position as a housekeeper. On 4 November 2013, Plaintiff was observed by two other Crothall employees smoking an "e-cigarette" during an unauthorized break. Pursuant to Crothall policy, hourly employees must adhere to Novant's non-smoking policy, which prohibits smoking or the use of smokeless tobacco products while upon the hospital's premises. Plaintiff's employment was terminated later that day.

Plaintiff filed a Form 18 (Notice of Accident to Employer and Claim of Employee, Representative, or Dependent) on or about 11 November 2013, over five months after the accident. She listed both Crothall and Novant as employers on the Form 18. On or about 12 May 2014, Novant filed a Form 61 Denial of Plaintiff's claim.

Plaintiff's claim came for hearing before the Deputy Commissioner on 23 July 2014. The Deputy Commissioner concluded Plaintiff did not sustain an injury as the result of an accident during the course and scope of her employment. The Deputy Commissioner further concluded that Plaintiff was not a joint employee of Crothall and Novant, and denied her claim for workers' compensation benefits against Novant.

Plaintiff appealed the decision of the Deputy Commissioner to the Full Commission of the North Carolina Industrial Commission. The Full Commission made extensive and unchallenged findings to support its conclusion that no employment relationship existed between Plaintiff and Novant, including:

6. The [Environmental Services and Supplies] Agreement [between Novant and Crothall] provides that Crothall is responsible for furnishing all management, supervisory, and productive labor personnel required to accomplish the services for which they were contracted by Novant. It further states that these personnel shall be employees of Crothall. Novant did not specify how many employees were needed to accomplish the tasks of the EVS Agreement. Novant did not enter into any agreements with Crothall's hourly workers on an individual basis.

7. Novant is not involved in the hiring or firing of Crothall employees who work in Novant facilities. Crothall is solely responsible for hiring, training, managing, and directing the productive labor in the performance of their cleaning services in accordance with Crothall's policies and procedures.

8. When Crothall hires a new employee, they are offered employment benefits such as comprehensive medical insurance, dental insurance, vision plan, and a 401K account that are solely provided by Crothall. Crothall pays for workers' compensation coverage for all of its employees operating in Novant facilities. Novant does not offer Crothall employees salary, benefits, or insurance coverage.

9. Crothall is responsible for training employees and, per the EVS Agreement, Crothall is required to instruct its employees to comply with Novant's policies related to non-employed workers (those persons working in a Novant facility that are not considered employees of Novant) in order to ensure the health and safety of the hospital's patients and visitors, as well as ensuring compliance with all federal and state healthcare regulations.

10. Novant personnel are not allowed to control, direct, or supervise the work of Crothall employees. Novant personnel are not allowed to discipline or terminate Crothall employees for violation of a Novant policy. If a [sic] there is an issue with a Crothall employee at a Novant facility, Novant must request in writing that Crothall remove the employee from the account location.

11. Under the EVS Agreement, Crothall is also responsible for purchasing inventory and equipment that is necessary for them to provide cleaning services to Novant facilities. Crothall purchases these supplies from vendors at its sole discretion, without any input from Novant.

....

14. Crothall maintains a supervisory structure consisting of a unit director, human resources manager, director of operations, three assistant directors, and nine operations managers in order to supervise and direct the labor of Crothall's hourly associates. Crothall's supervisors prepare duty sheets that outline the daily tasks the Crothall employees at FMC are supposed to undertake to perform the services that Novant contracted for in the EVS Agreement. Novant does not have any part in the creation of the duty sheets. They do not exercise any oversight into how Crothall determines how to clean the FMC facility.

15. Plaintiff was hired by Crothall to work as a housekeeper at [ForsythMedical Center] in 2010. Upon hire, plaintiff was aware that Crothall could place her at any entity for which they provided services, but that they chose to place her at FMC. Plaintiff never entered into any contract of employment with any representative of Novant. At the time of her hiring, plaintiff was given a copy of the Crothall Hourly Employee Handbook. As part of her new-hire training, plaintiff was required to watch videos and take assessments on topics ranging from safety to how to clean a patient's room properly. Plaintiff's training was administered by Crothall personnel. Once plaintiff was assigned to work at FMC, Crothall personnel instructed plaintiff that she was expected to adhere to certain policies that Novant had in place at FMC.

16. Plaintiff testified that she knew she was an employee of Crothall while working as a housekeeper at FMC. Plaintiff testified that the way she was trained to interact with Novant personnel, and the reason she was required to adhere to certain Novant policies, was because Novant was a client and customer satisfaction was very important to Crothall.

17. During the course of her work day, plaintiff's labor was directed by her Crothall supervisors. If plaintiff was going to be tardy or absent on a day she was scheduled to work she was to notify her Crothall shift supervisors. Any disciplinary action was also administered to plaintiff by Crothall supervisors.

The Full Commission affirmed the holding of the Deputy Commissioner in an Opinion and Award entered 17 June 2015. Plaintiff appeals.

II. Issues

Plaintiff argues the Commission erred by concluding no employment relationship existed between Plaintiff and Novant, under either the joint employment doctrine or the lent employee doctrine.

III. Standard of Review

This Court reviews whether an employment relationship existed between Plaintiff and Novant under a de novo standard of review.

Morales–Rodriguez v. Carolina Quality Exteriors, Inc.,

205 N.C.App. 712, 714, 698 S.E.2d 91, 93 (2010). "The issue of whether an employer-employee relationship existed at the time of the injury ... is a jurisdictional fact." Id. (citing Lucas v. Li'l Gen. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976) ).

[T]he finding of a jurisdictional fact by the Industrial Commission is not conclusive upon appeal even though there be evidence in the record to support such finding. The reviewing court has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record.

Id. (quoting Lucas, 289 N.C. at 218, 221 S.E.2d at 261 ).

IV. Employment Relationship Between Plaintiff and Novant

Plaintiff argues the Commission erroneously concluded she was not an employee of Novant at the time of...