                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                            FILED

                                            October 18, 1999




                                           Cecil Crowson, Jr.

                                         Appellate Court Clerk




CAROLYN B. ERWIN,                              )       NO. 03A1-9811-CV-00379
                                               )
       Plaintiff/Appellant,                    )
v.                                             )       Appeal As Of Right From The
                                               )       ANDERSON COUNTY CIRCUIT COURT
METHODIST MEDICAL CENTER                       )
OF OAK RIDGE,                                  )
     Defendant/Appellee.                       )       HONORABLE JAMES B. SCOTT, JR.




For the Appellant:                                     For the Appellee:
J. Anthony Farmer                                      Robert W. Knolton
Knoxville                                              Knoxville




AFFIRMED AND REMANDED                                                                 Swiney, J.




                                            OPINION


               This is an appeal from the Trial Court’s dismissal of a negligence action brought against




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Methodist Medical Center of Oak Ridge, Defendant/Appellee, arising from a workplace injury to

Plaintiff/Appellant, an employee of a contract service provider. In addition to filing suit against her direct

employer under the Tennessee Workers’ Compensation Act, Plaintiff sued Defendant in tort, alleging

negligence related to her workplace injury. Defendant moved for dismissal under Tenn. R. Civ. P. Rule

12.02(6), asserting immunity from tort suit under the exclusive remedy provision of the Tennessee

Workers’ Compensation Act. The Trial Court dismissed the cause of action, finding that Defendant was

a principal contractor under Tenn. Code Ann. § 50-6-113. For the reasons herein stated, we affirm the

Trial Court’s dismissal of Plaintiff’s tort action.

                                               BACKGROUND


                 Plaintiff was an employee of Owen Healthcare on January 9, 1997 when she tripped on

electrical wiring and fell at work. At the time of Plaintiff’s fall, Owen Healthcare maintained business

operations on the premises of Defendant Methodist Medical Center of Oak Ridge under contract to

provide pharmacy services for the hospital. Several departments of Defendant operate under similar

contracts, where Defendant is the principal to the contract and the workers are employed by the

contractor.

                 On September 10, 1997 Plaintiff filed suit against CNA Insurance Company in the

Circuit Court for Knox County under the Tennessee Workers’ Compensation Act. At the time, CNA

provided Workers’ Compensation insurance for Plaintiff’s employer, Owen Healthcare. Temporary

indemnity and medical benefits under the Workers’ Compensation Act had been provided to Plaintiff by

CNA.

                 On January 6, 1998 Plaintiff filed suit in the Circuit Court for Anderson County against

Methodist Medical Center of Oak Ridge and Anthony Thornton d/b/a Tennessee Associates. The

Complaint alleged that electrical work was being done at the hospital, and wiring lying on the floor was

the cause of Plaintiff’s fall. On March 4, 1998 Defendant filed a motion to dismiss, attaching as exhibits

copies of the Worker’s Compensation Complaint filed by Plaintiff and the Answer of CNA Insurance




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Company. On July 21, 1998 Plaintiff filed a response to Defendant’s motion to dismiss, citing as exhibit

an attached copy of portions of the contract between Defendant and Owen Healthcare. On September

21, 1998 an Order of Voluntary Dismissal with full prejudice was filed as to defendants Anthony

Thornton d/b/a Tennessee Associates and Tennessee Associated Electric, Inc.

                 On October 20, 1998 an “Opinion, Exclusive Remedy” was filed by the Trial Court,

granting Defendant’s Tenn. R. Civ. P. Rule 12 motion to dismiss filed March 4, 1998. The Opinion

stated that Defendant is not subject to a common law negligence claim by Plaintiff, referencing the

exclusive remedy provision of the Tennessee Workers’ Compensation Act. On November 13, 1998 an

Order captioned “Judgment Dismissing Action” was filed incorporating by reference the October 20

Opinion, with all accrued costs adjudged against Plaintiff. Notice of this appeal was filed November 18,

1998, with attestation of proper service and appeal bond for costs.


                                               DISCUSSION


                 Under Tenn. R. Civ. P Rule 12.02 Defendant’s motion to dismiss was converted into a

motion for summary judgment when the Trial Court considered matters outside the pleadings. The

standard of review for a summary judgment under Tenn. R. Civ. P. Rule 56 is de novo, with no

presumption of correctness as to the trial court’s legal conclusions. Summary judgment is appropriate

when, considering the evidence in the light most favorable to the non-moving party, there are no issues of

material fact and the moving party is entitled to judgment as a matter of law. Gardner v. Insura

Property & Cas. Ins. Co., 956 S.W.2d 1, 2 (Tenn. Ct. App. 1997). There is no dispute concerning the

facts material to the Trial Court’s holding.

                 The Trial Court found Defendant to be a principal contractor under Tenn. Code Ann. §

50-6-113, thus privileged to invoke the exclusive remedy provision of Tenn. Code Ann. § 50-6-108 and

entitled to dismissal of the tort action by Plaintiff. Plaintiff argues that Defendant does not meet the

statutory requirements as interpreted by the Tennessee courts, and thus remains a proper party to tort

action by Plaintiff.


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                 The primary cases cited as supporting Plaintiff’s position are Stratton v. United

Inter-Mountain Telephone, 695 S.W.2d 947 (Tenn. 1985) and Barber v. Ralston Purina, 825

S.W.2d 96 (Tenn. Ct. App. 1991). Stratton sets forth six factors used to apply Tenn. Code Ann. §

50-6-113 to determine whether an injured worker is an employee or independent contractor.                   “In

analyzing whether the relationship is that of employer-employee or that of independent contractor, this

Court has said that the following are factors to be considered and that no one factor is necessarily

dispositive: (1) right to control the conduct of work; (2) right of termination; (3) method of payment; (4)

whether alleged employee furnishes his own helpers; (5) whether alleged employee furnishes his own

tools; and (6) whether one is doing ‘work for another.’” Stratton, 695 S.W.2d at 950.

                   Barber examines the application of the principal contractor statute when the injured

worker is employed by a subcontractor, and asserting a claim against the principal to the contract.

Plaintiff asserts that the two factors analyzed in Barber support a finding that Defendant is not a principal

contractor under the facts at bar: “. . . (1) whether the work being performed by the contractor in

question [ ] is the same type of work usually performed by the company (defendant) or is part of the

regular business of the company and (2) whether the company (defendant) has the right to control

employees of the contractor [ ].” Barber, 825 S.W.2d at 99. The Barber Court found no dispute that

the plaintiff was not doing work usually done by employees of the defendant, and emphasized that the

key to analyzing similar cases is the right of the principal to the contract to control the employee. “In

Stratton, the Court notes that no single test is dispositive of this issue, but the right to control the conduct

of the work has been repeatedly stressed. The Court further explains that the test is not whether the right

to control the conduct of the work was exercised, but simply whether the right exists.” Id.

                 Plaintiff cites Byrd v. Mahle, Inc., No. 03A01-9301-CV-00006, 1993 WL 305807

(Tenn. App. 1993)(perm. app. denied), to support her argument. Plaintiff uses this Court’s analysis in

Byrd to assert that the principal contractor statute does not apply to Defendant under the facts of this

case, claiming that Defendant only contracted for an end result, and did not exercise control over the

employees of Owen Healthcare. Byrd relied upon the six factors set forth in Stratton in reversing the


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trial court’s finding that defendant Mahle was not a principal under Tenn. Code Ann. § 50-6-113. The

Court in Mahle found that five of the six factors supported a finding of no coverage under the Act, and

cited as further support that Defendant’s right to control the work of the subcontractor “extended only to

insuring that the end result conformed to Mahle’s plans and specifications.”

                It is important to note that a very different relationship existed in Mahle, as the defendant

hired a general contractor to manage a construction project at defendant’s plant, the general contractor

hired a subcontractor to perform plumbing and mechanical work, and the subcontractor hired plaintiff

Byrd as an employee. Here, Defendant hired Owen Healthcare, and Owen Healthcare hired Plaintiff as

an employee. Defendant stands in the position of the general contractor in Mahle, not in the same

position as Mahle. It is this extra removal from the work performed that took Mahle out of the Workers’

Compensation coverage as a principal under Tenn. Code Ann. § 50-6-113, thus barring application of

the exclusive remedy provision of Tenn. Code Ann. § 50-6-108 to plaintiff Byrd’s negligence claims in

tort.

                Plaintiff claims that Owen Healthcare was not providing a service performed by

Defendant and thus fails the first of the two standards in Barber, citing the agreement between Owen and

Defendant. Plaintiff’s argument turns on the point that Owen is the exclusive provider of pharmacy

services for Defendant, and had no right to control the employees of Owen. Plaintiff also asserts that

Defendant was not performing work for another, thus fitting into the facts under Byrd.

                Defendant avers that hospitals routinely enter into exclusive contracts with independent

contractors to provide particular healthcare services within the hospital, and this routine business practice

of hospitals makes this a case of first impression. Defendant overstates this circumstance of fact, as there

is no need to make such a broad finding in order to resolve the issue on appeal.

                Defendant’s argument for tort immunity centers upon the contractual relationship with

Owen Healthcare, and the application of the Stratton employee control analysis. Defendant asserts that

application of Tenn. Code Ann. § 50-6-113 is based upon work that is the subject of the contract being

performed on the premises of the principal, and whether the contracted work is part of the regular


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business of the principal. It is undisputed that Defendant owned the premises where the injury occurred.

Defendant counters Plaintiff’s argument that the pharmacy was an insular operation by stating that “the

operation of a hospital pharmacy for the benefit of the patients at its hospital facility” is integral to the

overall provision of healthcare to the patients of Defendant.

                The determinative issues are whether Defendant is a Principal, Intermediate Contractor

or Subcontractor under Tenn. Code Ann. § 50-6-113(a), and whether the injury occurred on, in, or

about the statutory “premises” under Tenn. Code Ann. § 50-6-113(d) so as to bar recovery under the

exclusive remedy provision of the Workers’ Compensation Act.

                Taking the second issue first, it is undisputed that the injury at issue occurred on the

premises of Defendant, and that Defendant had the right to control the premises. Resolution of the

remaining issue depends on whether the relationship between Plaintiff and Defendant creates applicability

of coverage under the Tennessee Workers’ Compensation Act. The parties both cited the Agreement

between Owen Healthcare, Inc. and Defendant, a portion of which was made exhibit to Plaintiff’s brief

on appeal, as establishing the bounds of this relationship.

                All that remains is to apply the factors under Stratton/Barber to the Agreement at issue.

The first factor in the Barber analysis is whether the work being performed by the contractor in question

is the same type of work usually performed by the defendant, or part of the regular business of

defendant. A key to the analysis of this issue is whether the pharmacy operation on Defendant’s

premises is an insular operation and not the same type of work usually performed by Defendant, as

asserted by Plaintiff. Although Stratton cites several cases in support of this point, the most instructive

for the issue on appeal is Hendrix v. Ray-Ser Dyeing Co., 224 Tenn. 690, 462 S.W.2d 483 (Tenn.

1979). In Hendrix defendant contracted with the injured worker’s employer to paint a smokestack at

defendant’s plant. The Court looked to the fact that not only was defendant “not engaged in the business

of painting,” but also not engaged in “other maintenance work” in finding that the injury at issue did not

arise out of the same type of work usually performed by, or part of the regular business of, the defendant.

 Analogizing the reasoning in Hendrix to the issue on appeal would require a finding that pharmacy


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service is so removed from the usual business of Defendant that it would not be part of the other

healthcare work that would be considered part of the “regular business” of Defendant. In short, it would

require this Court to find that pharmacy service in a hospital setting is not the same type of work

Defendant usually performs. The record does not support such a finding.

                 The facts in the record do not support a finding that the pharmacy service in the

Agreement is not part of the regular business of Defendant. The contract specifies that Owen Healthcare

“. . . will, as a service, own the inventory and operate a pharmacy service (“PHARMACY”) on the

premises of HOSPITAL for the purpose of supplying hospital pharmacy items . . . to HOSPITAL to be

administered to HOSPITAL’S patients upon proper order of lawfully authorized persons.” It is apparent

from the wording of this preamble that the “service” is not an insular one as asserted by Plaintiff, but is

only brought into operation by “proper order of lawfully authorized persons,” and that the object of the

services is the patients of the hospital, not the hospital itself.

                 In order for Plaintiff’s argument to stand, Defendant itself must be the object of the

contract at issue. In Byrd v. Mahle, supra, the Court found that the object of the contract was certain

improvements to defendant’s physical plant, making defendant only interested in the end result of the

contract between plaintiff’s employer and the general contractor. Here, the Stratton factor of “work for

another” is inseparable from the contract at issue, in that the hospital does not use or consume the

pharmacy services and/or pharmaceuticals for its own use or for improvement of its physical plant, but

rather as part of the overall healthcare treatment provided to the patients. It is the patients of Defendant

who are set out in the preamble as the object of the services contemplated in the contract. Although

Owen Healthcare was the exclusive provider for the scope of the contract with Defendant, it is apparent

that pharmacy service is not an insular operation, but part of a process of the regular business of

Defendant in providing healthcare services.

                 The second Barber factor is whether the defendant has the right to control the employees

of the contractor, applying the six Stratton factors to the facts of the individual case.

                 (1) Right to control the conduct of the work.


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                Under the Agreement, as previously discussed, the pharmacy operation is only

authorized to provide service “upon proper order of lawfully authorized persons.” Therefore, the

conduct of an employee of the pharmacy is not only under the right of control of Defendant, such

employee is not allowed to conduct any independent activity under the contract. Also, control by

Defendant of the conduct of the work is shown by the requirement that Owen Healthcare is to provide a

continuing education program, to work with Defendant in cost control efforts and establish a committee “

with HOSPITAL’S approval” and support, provide performance reports documenting specific

operational functions, including “interdepartmental communication,” “[d]rug order turn-around time,” “

[i]nservice education,” and record keeping assistance to other departments of Defendant. Thus, under

the terms of the Agreement, Defendant retained significant right to control the conduct of the work of the

employees of Owen Healthcare.

                (2) Right of termination.

                The right of a principal to terminate employees of the employer under the contract at

issue has been addressed in the cases previously cited. The contract reads in pertinent part, “OWEN

agrees to replace such employee upon reasonable demand of HOSPITAL.” This clause sets forth the

right of Defendant to have Owen Healthcare employees terminated.

                (3) Method of payment.

                The Agreement specifies that employees of Owen Healthcare are to be paid by Owen

Healthcare.

                (4) Whether alleged employee furnishes his own helpers.

                As for “helpers,” while the term does not appear in the portions of the Agreement

exhibited by Plaintiff, the burden is upon Defendant to provide to Owen Healthcare janitorial services,

receiving and storage services, in-hospital telephone service, and maintenance services. It would appear

that any “helpers” would fall under the category of “other personnel as needed to operate PHARMACY.

” However, as discussed above, employees of Owen Healthcare under the preamble to the Agreement




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are to supply “pharmacy items” “to HOSPITAL” to be administered to HOSPITAL’S patients . . ..” It

would appear that the administration to patients of such pharmacy items would be carried out by others,

presumably employees of Defendant or another contracting entity. Therefore, as the Agreement sets out

that Owen Healthcare employees are participating in a work process rather than providing a complete

end result themselves, this analysis is more on point with the holding of Carpenter v. Hooker Chemical

& Plastics Corp., 553 S.W.2d 356 (Tenn. Ct. App. 1977), where this Court found that work partly

done by employees of a subcontractor and partly done by employees of the defendant fell under Tenn.

Code Ann. § 50-6-113, barring tort claims under the exclusive remedy provision of Tenn. Code Ann. §

50-6-108.

               (5) Whether alleged employee furnishes his own tools.

               Although this element most often arises in cases determining whether the injured worker

is an employee or independent contractor, under the Agreement at issue Owen Healthcare is to provide,

as Plaintiff points out, “operational support for current pharmacy computer service,” and “additional

pharmacy equipment and fixtures.” However, by the plain wording of the Agreement the computer

equipment to be supported was already in place, and thus “tools” provided by Defendant. Also, the

addition of equipment and fixtures is to be done “with HOSPITAL’S approval,” indicating Defendant’s

right to control the conduct of the work performed.

               (6) Whether one is doing ‘work for another.’

               Plaintiff argues that Defendant was not doing work for another under the Agreement at

issue. However, as discussed above, the preamble to the Agreement clearly identifies “HOSPITAL’S

patients” as the object of the activities under the contract. Also as previously discussed, the pharmacy

service is not an insular activity, but part of a work process, directed by others (“lawfully authorized

persons”), incorporating the efforts of others (“Pharmacy/Nursing interdepartmental communications,” “

Pharmacy, Nursing, and Business Office medication administration record keeping”), “for the purpose of

supplying hospital pharmacy items . . . to HOSPITAL to be administered to HOSPITAL’s patients.”

Under this analysis, not only is the object of the work by employees of Owen Healthcare “work for


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another” other than Defendant, but also it appears that only the support activities described in the

Agreement, such as accounting and record keeping, are directed to the benefit of Defendant rather than

to another.

                “When the facts are essentially undisputed, the issue of whether one is an employee or an

independent contractor is one of law.” Barber, 825 S.W.2d at 100, citing Stratton, 695 S.W.2d at 953.

 It is undisputed that the injury at issue occurred on the premises of Defendant. Applying the guidance of

the cases cited above, we hold that Defendant is a Principal or Intermediate Contractor under Tenn.

Code Ann. § 50-6-113(a), thus a statutory employer for purposes of the Tennessee Workers’

Compensation Act, and Plaintiff’s exclusive remedy under Tenn. Code Ann. § 50-6-108 bars her tort

claims against Defendant.


                                           CONCLUSION


                The Trial Court did not err in granting Defendant’s motion to dismiss. Defendant is a

principal contractor under the relevant statutes and case law, barring Plaintiff’s tort action under the

exclusive remedy provision of the Tennessee Workers’ Compensation Act. The Judgment of the Trial

Court is affirmed, and the cause remanded for collection of costs below. Costs on appeal are adjudged

against the appellant.


                                                                ______________________________
                                                                D. MICHAEL SWINEY, J.


CONCUR:




______________________________
HERSCHEL P. FRANKS, J.




                                                                                                             Page 10
______________________________
CHARLES D. SUSANO, J.




                                 Page 11
