             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA15-1201

                                Filed: 5 April 2016

North Carolina Industrial Commission, I.C. No. 13-733120

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.


      Appeal by plaintiff from opinion and award entered 17 June 2015 by the North

Carolina Industrial Commission. Heard in the Court of Appeals 10 March 2016.


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

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

      Orbock Ruark & Dillard, PC, by Barbara E. Ruark 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
                     WHICKER V. COMPASS GROUP USA, INC., ET. AL.

                                   Opinion of the Court



       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 byCrothall,

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.



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                                 Opinion of the Court



      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.



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                  WHICKER V. COMPASS GROUP USA, INC., ET. AL.

                                 Opinion of the Court



      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


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      WHICKER V. COMPASS GROUP USA, INC., ET. AL.

                      Opinion of the Court



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 [Forsyth Medical 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


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                                  Opinion of the Court



             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.



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                                    Opinion of the Court



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 her injury. We disagree.

       The Commission denied Plaintiff’s claim for workers’ compensation benefits

from Novant and concluded Plaintiff failed to prove she was an “employee” of Novant

under the Workers’ Compensation Act. The Commission also denied Plaintiff’s claim

for workers’ compensation benefits from Crothall, after it concluded Plaintiff failed to

prove she had suffered an injury during the course and scope of her employment with

Crothall.

       The Commission’s Opinion and Award does not address whether Plaintiff was

injured during the course and scope of her alleged employment with Novant. Novant

acknowledges in its brief that there is a general exception to the “going and coming”


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                                  Opinion of the Court



rule for injuries sustained by employees in parking lots owned and controlled by the

employer. See Royster v. Culp, Inc., 343 N.C. 279, 281, 470 S.E.2d 30, 31 (1996) (“The

general rule in this state is that an injury by accident occurring while an employee

travels to and from work is not one that arises out of or in the course of employment.

. . . A limited exception to th[is] ‘coming and going’ rule applies when an employee is

injured when going to or coming from work but is on the employer’s premises.”

(citation omitted)). The parties stipulated the parking lot where Plaintiff fell was

“under the exclusive control and management” of Novant. Plaintiff filed a claim

against Novant after Crothall had denied her claim on the grounds that her injury

was not in the course and scope of her employment with Crothall.

      Under the Workers’ Compensation Act, “[t]he term ‘employee’ means every

person engaged in an employment under any appointment or contract of hire or

apprenticeship, express or implied, oral or written . . . .” N.C. Gen. Stat. § 97-2(2)

(2015). Plaintiff bears the burden of proving the existence of an employer-employee

relationship at the time of the injury by accident. Lucas, 289 N.C. at 218, 221 S.E.2d

at 261.

      The parties agree Plaintiff was an employee of Crothall at the time of her

injury. For Novant to be liable for Plaintiff’s injury, Plaintiff must initially prove

Novant was a joint employer at the time of her fall. Under some circumstances, a

person can be the employee of two different employers at the time of the injury. See



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                                  Opinion of the Court



Leggette v. McCotter, Inc., 265 N.C. 617, 625, 144 S.E.2d 849, 855 (1965). As the

Commission’s Opinion and Award explains, Plaintiff may rely upon two doctrines to

prove she is an employee of two different employers at the same time: the joint

employment doctrine and the lent employee doctrine. Anderson v. Texas Gulf, Inc.,

83 N.C. App. 634, 635-36, 351 S.E.2d 109, 109-110 (1986).

      Joint employment occurs when

            a single employee, under contract with two employers, and
            under the simultaneous control of both, simultaneously
            performs services for both employers, and when the service
            for each employer is the same as, or is closely related to,
            that for the other. In such a case, both employers are liable
            for work[ers’] compensation.

Id. at 636, 351 S.E.2d at 110 (citation omitted) (emphasis deleted). Under the lent

employee doctrine:

            When a general employer lends an employee to a special
            employer, the special employer becomes liable for
            work[er’s] compensation only if

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

            (b) the work being done is essentially that of the special
                employer; and

            (c) the special employer has the right to control the details
                of the work.

            When all three of the above conditions are satisfied in
            relation to both employers, both employers are liable for
            work[er’s] compensation.



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                                   Opinion of the Court



Id. at 635-36, 351 S.E.2d at 109-10 (citation and quotation marks omitted). The

doctrines are similar. Under the joint employment doctrine, the worker performs

work at the same time in service to two employers. Under the lent employee doctrine,

the “general employer” has temporarily “loaned” the employee to the “special

employer.” We agree with the Commission’s conclusion that Plaintiff was not an

employee of Novant under either of these doctrines.

                              A. Contract with Novant

      Both of these doctrines require an employment contract to exist between

Plaintiff and Novant. “[A]lthough there is a mutual business interest between the

two employers, and perhaps even some element of control, joint employment as to one

employer cannot be found in the absence of a contract with that employer.” Id. at 638,

351 S.E.2d at 111. The lent employee doctrine requires the employee to have “made

a contract of hire, express or implied, with the special employer.” Id. at 635, 351

S.E.2d at 109. It is undisputed that Plaintiff and Crothall entered into an express

employment contract. It is also undisputed that there was no express contract of hire

between Plaintiff and Novant.

      Plaintiff argues an implied contract existed, which was “created by a bundle of

agreements” between Novant and Plaintiff. Specifically, Plaintiff asserts: (1) Novant

permitted Plaintiff to work at Forsyth Medical Center, only if Plaintiff agreed to abide

by a variety of Novant’s policies and procedures; (2) Novant required Plaintiff to sign



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                                   Opinion of the Court



an agreement, which stated her ability to work at the hospital was “in consideration”

for her agreement to abide by Novant’s policies regarding confidentiality; (3) Plaintiff

underwent various training sessions required by Novant, and took “tests that the

hospital would give their employees,” which pertained to Novant’s mission, values,

safety standards, privacy regulations, and infection prevention policies.

      The relationship of employer-employee “is essentially contractual in its nature,

and is to be determined by the rules governing the establishment of contracts, express

or implied.” Hollowell v. N.C. Dep’t of Conservation & Dev., 206 N.C. 206, 208, 173

S.E.2d 603, 604 (1934). The Workers’ Compensation Act recognizes that employment

contracts can be implied when it defines “employee” to include workers who labor

under a contract that is either “express or implied.” N.C. Gen. Stat. § 97-2(2).

      “An implied contract refers to an actual contract inferred from the

circumstances, conduct, acts or relations of the parties, showing a tacit

understanding.” Archer v. Rockingham Cnty., 144 N.C. App. 550, 557, 548 S.E.2d 788,

793 (2001) (citations omitted).     The agreement between Crothall and Novant

expressly states “[a]ll personnel required by [Crothall] to fulfill the requirements of

any Agreement with [Novant] will be considered employees of [Crothall].”

      In Shelton v. Steelcase, Inc., 197 N.C. App. 404, 677 S.E.2d 485, disc. review

denied, 363 N.C. 583, 682 S.E.2d 389 (2009), the plaintiff was employed by Drew,

LLC (“Drew”), a company which contracted with other businesses to provide janitorial



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                                   Opinion of the Court



services. Id. at 407, 677 S.E.2d at 489. Drew entered into a contract with Steelcase,

Inc. (“Steelcase”) to clean a portion of Steelcase’s facility. Id. An unhinged door fell

onto plaintiff, while she was cleaning the Steelcase facility, and caused serious

injuries. She sued Steelcase for negligence and obtained a favorable jury verdict. Id.

at 409, 677 S.E.2d at 491. Steelcase argued on appeal the trial court erred in denying

its motion for JNOV where the plaintiff was an employee of both Drew and Steelcase,

and therefore subject to the exclusive remedy under the Workers’ Compensation Act.

Id.

       As here, the contract between Drew and Steelcase stated that Drew’s

employees “will be employees of [Drew].” Id. at 412, 677 S.E.2d at 492. Drew paid

the plaintiff’s salary and benefits, withheld her taxes, and paid her workers’

compensation insurance. Id. This Court held, “[s]ince Steelcase had by contract

expressly provided that [the plaintiff’s] employer would be responsible for the

supervision and control of [the plaintiff’s] work, Steelcase had not demonstrated its

entitlement to a directed verdict or JNOV on that issue.” Id. at 406, 677 S.E.2d at

489.

       Here, Plaintiff was hired, paid, trained, and supervised by Crothall. The

contract between Crothall and Novant expressly states she is an employee of

Crothall. “It is a well[-]established principle that an express contract precludes an




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                                   Opinion of the Court



implied contract with reference to the same matter.” Vetco Concrete Co. v. Troy

Lumber Co., 256 N.C. 709, 713, 124 S.E.2d 905, 908 (1962) (citations omitted).

       Furthermore, Plaintiff’s testimony shows she did not believe herself to be an

employee of Novant. During her testimony Plaintiff agreed “that there was never

any contract between [her] and Novant[.]” “It is essential to the formation of any

contract that there be mutual assent of both parties to the terms of the agreement so

as to establish a meeting of the minds.” Creech v. Melnik, 347 N.C. 520, 527, 495

S.E.2d 907, 911-12 (1998) (citation and quotation marks omitted). Plaintiff fails to

show mutual assent from both parties, because she denies the existence of a contract.

                                B. Nature of the Work

      Under both the joint employment and lent employee doctrines, Plaintiff must

show the work she was performing at the time of her injury was of the same nature

as the work performed by Novant. Novant is in the business of operating hospitals.

Plaintiff argues she was performing the work of both Crothall and Novant because

the provision of cleaning services is an integral part of operating a hospital.

      Under Plaintiff’s rationale, virtually any contractor retained by Novant to

upkeep its facilities could be deemed an employee of Novant.          Novant provides

medical services to the public and Crothall provides cleaning services to Novant.

Novant provides medical services to patients in facilities it pays someone else to

clean, but does not provide cleaning services to the general public. Likewise, Crothall



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                                  Opinion of the Court



provides cleaning services to facilities where healthcare services are provided to the

public, but does not provide medical treatment to members of the general public.

      Plaintiff has not cited and we find no authority to support her argument that

the work she performed for Crothall was essentially the same as the work performed

by Novant. Plaintiff has failed to prove this element of the joint employment and lent

employee doctrines.

                           C. Control of Plaintiff’s Work

      Both doctrines also require Novant to have control over the manner and

execution of Plaintiff’s work. The agreement between Crothall and Novant explicitly

provides that Crothall is solely responsible for hiring, training, managing and

directing the personnel provided by Crothall to provide the contracted cleaning

services “in accordance with [Crothall’s] policies and procedures.” “Employment, of

course, is a matter of contract. Thus, where the parties have made an explicit

agreement regarding the right of control, this agreement will be dispositive.” Harris

v. Miller, 335 N.C. 379, 387, 438 S.E.2d 731, 735 (1994).

      Novant personnel lack authority to supervise, discipline, or terminate a

Crothall employee for violation of a Novant policy. Plaintiff was terminated by two

Crothall employees for violation of Novant’s non-smoking policy. Crothall has its own

management structure present on site at Forsyth Medical Center.




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                                   Opinion of the Court



      Crothall’s employees agree to Novant’s “Non-Employed Worker” policies

because they have been directed to so do by Crothall as a function of customer service.

The agreement between Crothall and Novant states that Crothall is responsible for

cleaning Novant’s facilities in accordance with their own policies and procedures.

While the agreement requires all Crothall employees to comply with Novant’s “Non-

Employed Worker” policies, this is a condition precedent to any Crothall employee

being assigned to a Novant facility. Novant requires the employees of any vendor

working within their facilities to follow their policies to ensure the compliance with

all federal and state healthcare regulations.

      The supervision and control exercised by Novant was minimal, at best. The

employee’s necessary consent to the employment relationship “may be implied from

the employee’s acceptance of the special employer’s control and direction. But what

seems on the surface to be such acceptance may actually be only a continued

obedience of the general employer’s commands.” Collins, 21 N.C. App. at 460, 204

S.E. 2d at 877 (citation omitted). Any direction Plaintiff may have been provided

through Novant’s policies was “continued obedience” to Crothall’s own policies and

obligations under its contract with Novant. Id. Plaintiff has failed to show Novant

exercised control over Crothall’s employees to render Plaintiff a joint or lent employee

of Novant.

                                    V. Conclusion



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                                  Opinion of the Court



      Plaintiff failed to show she was a joint or lent employee of Crothall and Novant.

No express or implied employment contract existed between Novant and Plaintiff.

Crothall and Novant do not engage in similar work. Plaintiff’s work was not under

the control of or supervised by Novant. The Commission’s conclusion that Novant

was not an employer of Plaintiff is affirmed.

      AFFIRMED.

      Judges GEER and INMAN concur.




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