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01/15/02 "See News Release 004 for any concurrences and/or dissents."

SUPREME COURT OF LOUISIANA
No. 01-C-1140 DONNA HILLMAN Versus COMM-CARE, INC., COMMUNITY CARE CENTER OF LEESVILLE

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, OFFICE OF WORKERS' COMPENSATION, DISTRICT 2 LOBRANO, Justice Pro Tempore* The narrow issue in this workers' compensation case is whether plaintiff, a beautician, was an employee of defendant, a nursing home, on August 7, 1996, when she injured her back lifting a resident in defendant's on-site beauty salon. The workers' compensation judge concluded that there was an employment relationship and awarded both temporary total disability benefits and attorney's fees. The court of appeal affirmed. Concluding that there was no employment relationship, we reverse.

Factual and Procedural Background As an accommodation to its residents, defendant, Comm-Care, Inc., Community Care Center of Leesville, advertised and provided on-site beauty salon services. Plaintiff, Donna Hillman, provided those services once or twice a week

Retired Judge Robert L. Lobrano, assigned as Justice Pro Tempore, participating in the decision.

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while contemporaneously working at a local beauty parlor. Hillman heard about the nursing home position from Gaynell Ford, the home's activity coordinator; Hillman and Ford both attended the same church. When Hillman came in to apply for the position, Ford introduced her to the home's administrator, William Lang, Jr. After an in-the-hall interview during which Hillman established her status as a licensed beautician and Lang discussed with her the ground rules for using the home's on-site beauty salon, Lang agreed to allow Hillman to provide beauty services at the home. As part of the ground rules, Hillman was instructed to follow two lists. The first was a price list that was posted on the salon mirror; she was told that she had to charge these predetermined prices for the various hair care services--cut, shampoo, perm, set, and color--and that she could charge no more and no less and that she could accept no tips. The second list, which was also posted on the salon wall, was an enumeration of thirteen beauty and barber shop rules regarding hygiene that were to be followed by anyone providing services to the residents. During the interview, they agreed upon Wednesday as the day on which Hillman would work. Eventually this was extended to include a second day, Monday. Also, Hillman testified that she was on call for emergencies and special occasions such as weddings and funerals. Although Hillman testified that she was told the beauty salon would be limited solely to her use, Lang testified and attested in his affidavit that "[a]ny resident could have a family member or their own beautician/barber come and use the facility." Lang further testified that the residents were at liberty, if physically able, to go off site to have their hair cut and that he personally brought a male resident to the barber. Still further, Lang attested that "[n]ursing home staff washed each resident's hair every time the resident was

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bathed for sanitary purposes." And, it was also established at trial that the salon facility was used for other purposes, such as by a visiting podiatrist and dentist. Hillman was not given a key to the salon; instead, she testified during the interview Lang told her she "could come in at eight o'clock and they would let [her] in, and they would lock up after [she] got through." When she arrived at 8:00 a.m., she was provided a "Beauty Shop Sign in Sheet," which listed the residents who signed up that day for her services. She testified that she was expected to continue working until she finished everyone on the list. The residents who were competent personally told her how they wanted their hair done; the nursing home relayed to her the family members' instructions on how to do the hair of the residents who were not competent. While she performed the bulk of her services in the beauty salon itself, she also was required to service some residents in their rooms. Sometimes, Hillman testified, her sister would come with her to help with washing residents' hair and with getting residents from their rooms. Unlike Comm-Care's employees, Hillman was not required to wear a uniform. Nor was she required to complete any employment applications or forms. Nor did Comm-Care keep any employment records on her. Nor was she ever on Comm-Care's payroll. Instead, she was paid either directly by the residents in cash or indirectly from the residents' personal patient fund account. As to the latter charges, Hillman completed the sign in sheet to get paid indirectly. On the sheet, she listed next to the resident's name the service provided that day, the predetermined price for that service, and the resident's choice of payment mode-cash or charged to their patient trust account. At the end of the day, Hillman delivered that sheet to the home's administrative assistant, Sheila Stomps. Stomps then debited the residents' patient fund account and issued Hillman a check from

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that account. The latter account, which the nursing home was legally required to maintain for each resident, contained funds belonging solely to the residents. Comm-Care never withheld any type of taxes from the payments it made to Hillman on behalf of its residents. As to supplies and equipment, Comm-Care provided Hillman with the major equipment needed for a beauty salon, including two hydraulic chairs, two dryers, and a shampoo bowl; Comm-Care also provided towels, trash bags, certain medicated shampoos, and germicide. Hillman supplied her own hair treatment supplies, including hair rollers, regular shampoos, combs, perm solutions, and scissors. Comm-Care never reimbursed Hillman for the supplies she furnished. This arrangement continued from February 1995 until August 7, 1996, the date Hillman injured her back lifting a resident from her wheelchair to the shampoo chair in the beauty salon. As a result, Hillman was required to undergo two surgeries and was unable to work. On July 14, 1997, however, Hillman returned to work in another field for another employer. On August 4, 1997, Hillman filed the instant workers' compensation claim against Comm-Care. Although Comm-Care stipulated to Hillman's back injury, it disputed her employment status. Citing as controlling Boswell v. Kurthwood Manor Nursing Home, 94-703 (La. App. 3d Cir. 12/7/94), 647 So. 2d 630, writ denied, 95-0050 (La. 3/17/95), 651 So. 2d 267, Comm-Care filed a motion for summary judgment. Boswell, supra, involved an identical factual scenario that took place at the identical nursing home facility, albeit under prior management. Mrs. Boswell injured her back while moving a patient from the shampoo chair to the styling chair in the same on-site beauty salon where Hillman injured her back. The Third Circuit in Boswell reversed the workers' compensation hearing officer's finding that Mrs. Boswell was a

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nursing home employee. Agreeing with Comm-Care that Boswell was controlling, the workers' compensation judge granted summary judgment, finding that Hillman was not a Comm-Care employee. Reversing, the court of appeal acknowledged that Boswell was factually similar, yet distinguished Boswell factually and held that the workers' compensation judge erred in legally determining that an employer-employee relationship was lacking. 98-1341 (La. App. 3d Cir. 5/19/99), 732 So. 2d 841 ("Hillman I"). Hillman I was a split decision by the Third Circuit; the two dissenting judges opined that as a matter of law, even assuming Hillman's allegations regarding Comm-Care's control over her fees, hours, and the facility, there was no reasonable basis on which it could be concluded an employeremployee relationship existed. Thus, in the dissenters' opinion, this case is analogous to Boswell. On remand, following a trial at which evidence was introduced regarding Hillman's employment status, the workers' compensation judge found that Hillman was an employee. In so finding, the court relied primarily on the nursing home's power of control and dismissal and in its oral reasons stated that "the nursing home set the hours, controlled eighty percent or more of the funds received by Ms. Hillman through the patients' fund, and could dismiss her at will as they did Ms. Robinson, or Ms. Robertson [her predecessor]." Finding no manifest error, stressing Comm-Care's failure to present any new substantial evidence at trial, and noting the distinguishing factors cited in Hillman I between this case and Boswell "are even more pronounced in light of the additional evidence produced by Ms. Hillman at the trial on the merits," a divided appellate court affirmed. 00-1048 (La. App. 3d Cir. 3/21/01), 782 So. 2d 1147 ("Hillman II"). Once again, the same

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two judges voiced a vigorous dissent, opining that Hillman was not an employee of Comm-Care. On Comm-Care's application, we granted certiorari. 01-1140 (La. 6/15/01), 793 So. 2d 206.

Analysis Presumption of Employment Inherently, workers' compensation is a remedy between an employer and an employee; it follows then that absent an employer-employee relationship generally there can be no compensation recovery. Johnson v. Alexander, 419 So. 2d 451 (La. 1982).1 The Louisiana Workers' Compensation Act is silent on what constitutes an employer-employee relationship; the sole provision on this subject is the statutory presumption of employment status. 1 Denis Paul Juge, Louisiana Workers' Compensation

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