Opinion
No. 1 CA-CV 16-0095
04-06-2017
KARANDBIR SANDHU, Plaintiff/Appellant, v. STATE OF ARIZONA, et al., Defendants/Appellees.
COUNSEL Bowman & Smith PC, Yuma By Wm. Michael Smith Counsel for Plaintiff/Appellant Arizona Attorney General's Office, Tucson By Claudia Acosta Collings Counsel for Defendants/Appellees
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2014-0086210
The Honorable James T. Blomo, Judge
AFFIRMED
COUNSEL Bowman & Smith PC, Yuma
By Wm. Michael Smith
Counsel for Plaintiff/Appellant Arizona Attorney General's Office, Tucson
By Claudia Acosta Collings
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Kent E. Cattani and Judge Donn Kessler joined. SWANN, Judge:
¶1 Karandbir Sandhu appeals the superior court's summary judgment for the State on his negligence claim. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Wexford Health Sources, Inc. ("Wexford") contracted with the State, through the Arizona Department of Corrections ("ADC"), to provide medical and dental services to ADC inmates. Wexford employed Sandhu, a dentist licensed to practice in Arizona, to perform professional dental services at an ADC facility. An inmate assaulted Sandhu while he was working at the facility.
¶3 Sandhu filed a workers' compensation claim against Wexford and received compensation. He then filed this negligence action against the State, alleging ADC failed to properly safeguard him from the inmate who caused his injury.
¶4 The State moved for summary judgment on the ground that Sandhu was ADC's statutory employee under A.R.S. § 23-902(B) and his action was therefore barred under A.R.S. § 23-1022(A), the exclusivity provision of Arizona's Workers' Compensation Act (the "Act"). Sandhu argued ADC was not his statutory employer because it had not retained control over his work and his work was not "part or process" of ADC's business. The superior court entered summary judgment for the State, ruling workers' compensation was Sandhu's exclusive remedy and he was barred from bringing a tort claim against the State.
DISCUSSION
¶5 The Act grants the Industrial Commission of Arizona exclusive jurisdiction over claims for injuries arising out of and sustained in the course of employment. Rios v. Indus. Comm'n, 120 Ariz. 374, 376 (App. 1978); see also A.R.S. § 23-921(A). The Act thus bars employees to whom it affords coverage from suing their employer or co-employees for accidents arising out of and in the course of their employment. A.R.S. § 23-1022(A) ("The right to recover compensation pursuant to this chapter for injuries sustained by an employee . . . is the exclusive remedy against the employer or any co-employee acting in the scope of his employment . . . .").
¶6 The trial court must resolve any jurisdictional fact issues and may do so by considering affidavits, depositions, and exhibits. Swichtenberg v. Brimer, 171 Ariz. 77, 82 (App. 1991). We view the record in the light most favorable to sustaining the superior court's ruling and may infer any necessary findings reasonably supported by the evidence, but we review the court's ultimate legal conclusion de novo. Id.
¶7 Although ADC did not directly employ Sandhu, the superior court implicitly accepted ADC's argument and found that it was Sandhu's "statutory employer" by ruling that workers' compensation was Sandhu's exclusive remedy. Section 23-902(B) allows non-employees to be brought within coverage of the Act in certain circumstances:
When an employer procures work to be done for the employer by a contractor over whose work the employer retains supervision or control, and the work is a part or process in the trade or business of the employer, then the contractors and the contractor's employees, and any subcontractor and the subcontractor's employees, are, within the meaning of this section, employees of the original employer.A.R.S. § 23-902(B).
¶8 To determine whether this statute applies in this matter, we must evaluate two factors: (1) whether ADC retained supervision or control over Wexford's work and (2) whether the work Wexford performed was a part or process in ADC's business. Young v. Envtl. Air Prods., Inc., 136 Ariz. 158, 163-64 (1983).
¶9 The test applied to the first factor under § 23-902(B) is the same as the test applied under § 23-902(C) to differentiate between an employee and an independent contractor: whether there exists the right to control or supervise the method of reaching a specific result. Hunt Bldg. Corp. v. Indus. Comm'n, 148 Ariz. 102, 105-06 (1986). The evidence establishes that ADC retained control over Wexford's provision of health and dental services inside ADC facilities through the parties' detailed contract, which prescribed most aspects of Wexford's delivery of professional services. For example, the contract required Wexford to: (1) follow ADC's policies and procedures for providing inmate health and dental services; (2) ensure that its employees attended the annual mandatory training ADC required for its own employees and complied with ADC's policies and procedures regarding employee dress, conduct, and health screening; (3) consult with ADC before discharging or removing employees or failing to renew employment contracts with professional staff; (4) attend weekly meetings with ADC personnel and other events scheduled by ADC; and (5) coordinate with ADC staff to ensure inmates received appropriate healthcare. ADC also retained the right to perform pre-employment background investigations of Wexford's employees, conduct post-employment administrative and criminal investigations, and make the final selection of all Wexford employees assigned to provide contracted health services.
Because the court must determine whether the employer had a right to control the contractor's work by analyzing the totality of the circumstances and various indicia of control, Hunt, 148 Ariz. at 105, language in the contract indicating that Wexford was an independent contractor is not determinative.
¶10 In addition to this administrative control of Wexford's activities, ADC also retained "the right to intervene in the medical delivery and authorization at any time to address situations impacted by inmate safety and security-related factors or other factors of imminent importance." Further, the contract set forth specific requirements for Wexford's appeals process and provided that ADC would be the final arbiter of any disagreements between Wexford employees regarding the medical necessity, appropriateness, and efficiency of healthcare services.
¶11 Relying on Southwest Lumber Mills v. Industrial Commission, 60 Ariz. 199 (1943), Sandhu asserts that these contract provisions simply created a "design or framework" for Wexford's work, and did not reserve to ADC a right to supervise or control Wexford's work. In that case, Southwest Lumber held a permit from the United States Forest Service to cut and remove timber in the Coconino National Forest, and contracted with Gibson to furnish all labor, tools, and machinery necessary to perform the work. Id. at 201. Gibson's employee was injured on the job and sought compensation from Southwest Lumber through the Act. Id. The employee alleged that Southwest Lumber retained supervision and control of the timber cutting and delivery in part because of detailed contracts between the Forest Service and Southwest Lumber and between Southwest Lumber and Gibson. Id. The Arizona Supreme Court concluded that Southwest Lumber did not retain supervision and control over Gibson's work because the Forest Service, not Southwest Lumber, imposed the detailed conditions. Id. at 204. Gibson's agreement with Southwest Lumber merely required him to produce a definite result for a specified price. Id. at 206. The court concluded that Gibson was an independent contractor and that the employee worked for Gibson, not Southwest Lumber. Id. at 208.
To the extent that Sandhu contends the statutory requirement was not met because the contract did not grant ADC a right to supervise or control Wexford's employees, we reject that argument. Section 23-902(B) requires that the remote employer exercise control over the contractor's work, not that of its employees. See also Young, 136 Ariz. at 163 ("[T]he employer against whom the tort action is brought must retain 'supervision or control' over the work which he procures to be done by a contractor."). We note, however, that as discussed, ADC did retain substantial control over Wexford's employees.
¶12 Here, in contrast, ADC exercised supervision and control over Wexford's work by requiring Wexford employees to follow certain ADC policies and procedures while providing health and dental services, reserving the right to make the final decision regarding Wexford's provision of services in disputed cases, and retaining control over Wexford's hiring, training, and termination of its employees. This arrangement provided substantial control, not merely payment by ADC for a specified result, as in Southwest Lumber.
¶13 We turn, then, to whether the work entrusted to Wexford was a "part or process" of ADC's business. Section 23-902(B) defines this phrase to mean "a particular work activity that in the context of an ongoing and integral business process is regular, ordinary or routine in the operation of the business or is routinely done through the business' own employees." Sandhu argues this element is not satisfied because providing dental services is ancillary to ADC's central concern: securely incarcerating convicted felons, providing them structured programming, and supervising conditionally released inmates.
We agree with ADC that because this definition is written in the disjunctive, the activity must either be done regularly in the business's operation or routinely done through the business's own employees — the statute does not require both.
Sandhu's reliance on Anton v. Industrial Commission, 141 Ariz. 566 (App. 1984), in connection with the "part or process" element is not helpful, as the court in that case considered only whether the injured claimant was an independent contractor or an employee of Perkins, a contractor hired by Southwest to deliver lumber. Id. at 568, 571. The court specifically declined to consider A.R.S. § 23-902(B) or determine whether the claimant was a statutory employee of Southwest. Id. at 573. --------
¶14 The provision of medical and dental services to inmates is a routine part of ADC's business, because Arizona law requires ADC to provide this care. See A.R.S. § 31-201.01(D); see also Estelle v. Gamble, 429 U.S. 97, 103-06 (1976) (holding government must provide medical care for incarcerated persons and deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment of the United States Constitution); Roberts v. City of Alexandria, 431 S.E.2d 275, 275-77 (Va. 1993) (for injuries alleged by nurse employed by an independent contractor who provided medical services at city's detention center, city was deemed statutory employer for workers' compensation purposes "[b]ecause [it] is authorized and empowered to operate the jail, and to provide medical services there, [and so] the delivery of those medical services are within the City's trade, business or occupation"). Although ADC may — as it did in this case — contract with others to provide these services, A.R.S. § 31-201.01(D), it remains responsible for ensuring that the contractor properly provides care, cf. DeMontiney v. Desert Manor Convalescent Ctr. Inc., 144 Ariz. 6, 9 (1985) (holding statute permitting county to contract with other entities to provide mental health services did not relieve the county of its duty to provide proper care and treatment to inmates and the county remained liable for any breach of duty by contracted service providers). Accordingly, Wexford's work was a "part or process" of ADC's business. Because both elements of A.R.S. § 23-902(B) are satisfied and the State qualifies as Sandhu's statutory employer, workers' compensation was Sandhu's exclusive remedy. Therefore, the superior court correctly granted summary judgment for the State.
CONCLUSION
¶15 For the foregoing reasons, we affirm.