This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Beverly J. Bork,



St. Paul Ramsey Medical Center, Inc.,


Filed March 30, 1999


Amundson, Judge

Ramsey County District Court

File No. C69710861

Michel S. Krug, Krug & Zupke, 1021 Bandana Boulevard East, Suite, 226, St. Paul, MN 55108 (for appellant)

Kay N. Hunt, John R. McBride, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.



Appellant Beverly Bork, a nurse employed as a temporary employee by HealthStaf, challenges the trial court's grant of summary judgment in favor of St. Paul Ramsey Medical Center and the trial court's determination that because appellant was also a special employee of St. Paul Ramsey, workers' compensation was the exclusive remedy available to her. We affirm.


Appellant, a registered nurse, began working for HealthStaf, a temporary staffing agency providing nurses and other medical workers to hospitals, in June 1996. In October 1996, appellant slipped and fell, injuring her right rotator cuff, on a wet floor at St. Paul Ramsey Medical Center, where she had begun working four or five days earlier. She filed a claim with HealthStaf for workers' compensation benefits and received the benefits to which she was entitled.

Appellant then commenced a tort action against St. Paul Ramsey Medical Center in May 1997. In September 1998, summary judgment was entered in favor of respondent. Applying the loaned-servant doctrine, the trial court found respondent to be a special employer and held that, as such, appellant was not entitled to maintain a tort action against respondent. This appeal followed.


We must consider two questions on appeals from summary judgment: (1) whether there are any genuine issues of material fact and (2) whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The evidence is to be viewed in the light most favorable to the non-moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Minn. Stat. § 176.031 (1998) provides that the workers' compensation statutes are to serve as the exclusive remedy against an employer for an injury sustained by an employee in the course of employment. Appellant does not deny that she was an employee of HealthStaf, but she claims that this was her only employer and that she is free to sue respondent in tort because she was not its employee.

But the loaned-servant doctrine provides that an employee of a general employer may also be a "special employee" of another employer. If that relationship exists, the workers' compensation scheme provides the only remedy for injuries sustained in the course of the "special employment." Danek v. Meldrum Mfg. & Eng'g Co., 312 Minn. 404, 407, 252 N.W.2d 255, 258 (1977).

The requirements for application of the loaned-servant doctrine are that:

(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.

Id. at 408, 252 N.W.2d at 258 (quoting 1A Larson, Workmen's Compensation Law, § 48.00).

This court has interpreted Danek as holding that in "`labor broker cases' it [is] appropriate to imply consent to the second employment relationship * * *." Smieja v. City of Browerville, 406 N.W.2d 325, 327 (Minn. App. 1987). This implied consent arises from the nature of the labor-broker situation itself: the employee knows that all of the work will be performed for, and directed by, the broker's customer. Danek, 312 Minn. at 412, 252 N.W.2d at 260.

Appellant relies on Rademaker v. Archer Daniels Midland Co., 310 Minn. 240, 247 N.W.2d 28 (Minn. 1976), to assert that consent is a fact question. Respondent counters that Danek and Smieja were decided after Rademaker and that those decisions allow for a finding of implied consent in labor-broker cases, making summary judgment appropriate. We agree.

Appellant also argues that because she was a trained professional, hers is different from the typical labor-broker situation. Generally, when a general employer hires out its employees as temporary workers a labor-broker situation arises. See, e.g., Smith v. Employers' Overload Co., 314 N.W.2d 220, 222 (Minn. 1981) (companies in question were "labor brokers engaged in the business of supplying unskilled labor to local companies for short-term assistance"); Danek, 312 Minn. at 408, 252 N.W.2d at 258 (company's only function "was to furnish personnel to fill the temporary labor needs of other employers"); Smieja, 406 N.W.2d at 327 ("In a `labor broker' situation a business hires employees and in effect sells their services to a second employer in need of temporary help.") But see Newland v. Overland Express, Inc., 295 N.W.2d 615, 619 (Minn. 1980) (general employer not a labor broker because it provided equipment as well as employees and had the right to control equipment and employees).

Here, except for perhaps providing somewhat more training of employees than in other labor-broker situations, HealthStaf's relationship with St. Paul Ramsey is no different from typical labor-broker situations. The key issue is which employer had the right to control the details of appellant's work performance and had the right to control the "particular act giving rise to her injury." Danek, 312 Minn. at 408, 252 N.W.2d at 258. St. Paul Ramsey was the employer in control of appellant's performance and of the acts surrounding her injury. Appellant admits that she reported to the Sixth Floor Duty Nurse and took directions from her while at Ramsey. Also, the HealthStaf manual in appellant's appendix states that

[w]hile on an assignment, the Registered Nurse is responsible and accountable to their [sic] patients and to the client institution. The nurse is under the direct supervision of the Charge Nurse or other assigned personnel, and is expected to comply with all client institution's policies, procedures and practices.

Appellant also argues that as a matter of public policy, a professional temporary employee should be treated differently from the unskilled temporary employees discussed in the labor-broker cases such as Danek. She asserts that because professional temporary workers are presumed to be qualified and well-trained, the agency's clients may provide less training and exercise less control over the workers than in a typical labor-broker situation. But there is no evidence on these facts that appellant was not trained and supervised by St. Paul Ramsey to an extent sufficient to create a special-employment relationship.

Appellant also argues that the exclusive remedy statutory provisions do not prohibit a tort action against a third party. This is true. But here, of course, the central question is whether respondent was appellant's employer, precluding a tort action, or a third party, permitting a tort action. See Minn. Stat. § 176.031 (1998) (workers' compensation is exclusive liability for employer); Minn. Stat. § 176.061 (1998) (worker retains election of remedies when there is a third-party tortfeasor unless employer and third party are engaged in the same or a related purpose); Danek, 312 Minn. at 407, 252 N.W.2d at 258.

Finally, appellant argues that because the workers' compensation statute places a cap on the length of time a worker can receive benefits, courts should be cautious about applying the loaned-servant doctrine. This policy argument appears to be a general critique of the remedies available under the workers' compensation statute. Had appellant been a general rather than a special employee of St. Paul Ramsey, workers' compensation would have been the only remedy available to her as well. Any uncompensated losses would have been a casualty of the legislature's decision to adopt a workers' compensation scheme that is intended "to assure the quick and efficient delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers." Minn. Stat § 176.001 (1998).