Opinion
NO. 2011-CA-002225-MR
02-01-2013
SABRINA MULLINS-SMITH APPELLANT v. APPALACHIAN REGIONAL HEALTHCARE, INC. APPELLEE
BRIEF FOR APPELLANT: Christopher W. Goode Stacy Hullett Ivey Lexington, Kentucky BRIEF FOR APPELLEE: Thomas M. Smith Prestonsburg, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE III, JUDGE
ACTION NO. 09-CI-00336
OPINION
AFFIRMING
BEFORE: DIXON, MAZE, AND NICKELL, JUDGES. DIXON, JUDGE: Sabrina Mullins-Smith ("Smith") appeals from a summary judgment of the Perry Circuit Court in favor of Appalachian Regional Healthcare, Inc. ("ARH"), concluding that Smith's tort claim was barred by the exclusive remedy provision of the Kentucky Workers' Compensation Act. Finding no error, we affirm.
The underlying facts are not in dispute. ARH operates Hazard Regional Medical Center ("the hospital") in Hazard, Kentucky. The hospital offers various types of medical treatment and care, including acute dialysis treatments. ARH contracted with Fresenius Medical Care ("Fresenius") to provide inpatient dialysis services at the hospital. On July 15, 2008, Smith, who was employed as a dialysis nurse for Fresenius, was at the hospital to provide dialysis services to a patient. While tending to the dialysis patient, Smith heard a disturbance in the hallway. Smith attempted to close the hallway door when a female patient entered the room and attacked Smith. Smith suffered injuries to her neck, shoulder, knee, and psyche. Smith filed a workers' compensation claim against her employer, Fresenius, which paid Smith $85,978.84 in benefits.
Smith filed a common law personal injury action against ARH, alleging her injuries were the result of ARH's negligence. The parties engaged in discovery, and ARH moved for summary judgment. ARH argued it was a contractor of Smith's direct employer, Fresenius, pursuant to Kentucky Revised Statutes (KRS) 342.610 and KRS 342.690. As a contractor, ARH contended that Smith's tort claim was barred by the exclusive remedy provision of the Act. The trial court agreed and granted summary judgment in favor of ARH. This appeal by Smith followed.
Summary judgment is proper where no material issues of fact exist, and the moving party is entitled to judgment as a matter of law. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). On appeal, we undertake a de novo review of the legal questions presented, and we owe no deference to the decision of the trial court. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).
KRS 342.610(2) provides in relevant part as follows:
A contractor who subcontracts all or any part of a contract and his or her carrier shall be liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured the payment of compensation as provided for in this chapter.
. . . .
A person who contracts with another:
. . . .
(b) To 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.
Pursuant to KRS 342.690(1), if an employer secures payment of workers' compensation benefits required by Chapter 342, "the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer . . . ." The statute further provides that an "employer" includes a "contractor" as defined by KRS 342.610(2), "whether or not the subcontractor has in fact, secured the payment of compensation." KRS 342.690(1).
In General Elec. Co. v. Cain, 236 S.W.3d 579 (Ky. 2007), the Kentucky Supreme Court summarized the statutory requirements as follows:
If premises owners are 'contractors' as defined in KRS 342.610(2)(b), 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 unless the . . . immediate employers of the workers have provided workers' compensation coverage. If deemed to be 'contractors,' the owners, like any other employers, are immune from tort liability [exclusive remedy immunity] with respect to work-related injuries whether or not the immediate employer actually provided workers' compensation coverage. Thus, whether an owner is entitled to 'exclusive remedy' immunity depends upon whether the worker was injured while performing work that was 'of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession' of the owner. If so, the owner is immune; if not, the owner is subject to tort liability.Id. at 585 (internal citations omitted).
Pursuant to KRS 342.610(2)(b), the relevant inquiry is whether Smith, in providing dialysis treatment, was performing work that was "of a kind which is a regular or recurrent part of the work" of ARH's business as a hospital. Id. In Cain, the Court explained that work is regular or recurrent if it "is customary, usual, normal, or performed repeatedly and that the business or a similar business would perform or be expected to perform with employees." Id. at 589. The Court further noted, "The test is relative, not absolute. Factors relevant to the 'work of the . . . business,' include its 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. at 588.
Smith asserts that dialysis was not a regular or recurrent part of the work of ARH because the hospital was not "equipped with the skilled manpower and tools" to perform dialysis itself. Id. Smith narrowly focuses her analysis on the business activities of ARH, without regard to practices of similar hospitals. To support her argument, Smith states: 1) ARH did not have a dialysis department; 2) All dialysis was coordinated by a physician who was not an employee of ARH; 3) Fresenius, not ARH, owned the dialysis equipment; 4) ARH did not supervise Fresenius employees; 5) Fresenius controlled the staffing and administration of the dialysis services at ARH; and 6) ARH never utilized its own employees to perform dialysis.
We disagree with Smith's narrow focus. In Cain, the Court clearly considered the practices of similar businesses relevant in its analysis. Id. Here, ARH tendered the affidavits of: 1) ARH's risk management director; 2) Highlands Regional Medical Center's vice president of patient care services; and 3) Pikeville Medical Center's chief operating officer. The uncontroverted affidavits indicated that the hospitals routinely provided dialysis services in the normal course of business. Both ARH and Highlands used outside contractors for dialysis services, while Pikeville relied on its own employees for dialysis. Further, ARH had an open heart surgery program, which required specialized dialysis treatments for the heart patients. Likewise, ARH was a regional referral center and frequently treated patients with "multidisciplinary" needs that required dialysis. We agree with the following observation made by the trial court,
Affidavits provided by ARH state that inpatient dialysis service is a regular and recurrent activity of ARH hospital. The affidavits are uncontroverted. Indeed, the rendering of medical treatment would logically seem to be both regular and recurrent activity for a hospital. Not all hospitals offer the service, yet it is a regular and recurrent aspect of treatment that would be expected to be rendered by a hospital. Not all hospitals offer surgery, yet no one would say anesthesia is not a regular and/or recurrent activity in hospitals. The same is true for dialysis.
We reject Smith's argument that ARH cannot be deemed a contractor because the hospital was not "equipped with the skilled manpower and tools" to perform dialysis itself. Id. This contention is short-sighted, as the Cain Court articulated several relevant factors to consider, and the Court specifically cautioned that "the test is relative, not absolute." Id. Furthermore, Smith's argument contradicts Fireman's Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 462 (Ky. 1986), where the Court explained that, "[e]ven though [a defendant] 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." The uncontroverted evidence produced by ARH established that dialysis was integral to its daily operation as a regional hospital; accordingly, we conclude ARH established that it was a contractor for the purposes of KRS 342.610(2)(b).
Finally, having concluded ARH was entitled to exclusive remedy immunity, we decline to address Smith's alternative argument that her injuries did not arise within the scope of her employment. Under the facts presented, Smith's tort claims were barred by the exclusive remedy of workers' compensation; accordingly, the trial court properly granted summary judgment in favor of ARH.
For the reasons stated herein, the judgment of the Perry Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Christopher W. Goode
Stacy Hullett Ivey
Lexington, Kentucky
BRIEF FOR APPELLEE: Thomas M. Smith
Prestonsburg, Kentucky