Commentary: Ebola Has Everybody Spooked; They’re Even Calling Me With Questions

Ebola has everyone spooked. I read this afternoon that a Dallas health care worker who handled one or more lab specimens from the Liberian man who died from Ebola is currently self-quarantined on a cruise ship in the Caribbean. It’s been 19 days since the woman came into possible contact with the virus; she’s shown no signs of the disease herself. The cruise line attempted to fly her (and a companion) back to the U.S. when the ship stopped in Belize. Unlike our federal government, the officials in Belize aren’t worried about travel bans; they refused to let the health care worker off the cruise ship. It remains to be seen whether the woman and her friend will finish out the cruise in their small cabin. Are folks overracting? Perhaps you think so; I’m not so sure.  Continue reading

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Commentary: For Whom Are You Working? Ohio Court Creates Twilight Zone For Temporary Workers

Disruption Caused by Growth in Number of Temporary/Contingent Workers

A few days ago, my close colleague, Robin Kobayashi, and I put the final touches on a new book, Workers’ Compensation Emerging Issues Analysis, 2014 Edition (LexisNexis—expected ship date, Oct. 24). Robin and I serve as joint Editors-in-Chief. As a quick, self-serving plug, let me say that it’s a neat compendium of issues, trends & cases. We review what happened legislatively in each state during 2014, provide summaries of interesting and noteworthy cases from around the nation, and include a host of articles on current workers’ compensation topics [For additional information, click here].

While the book covers the waterfront, we chose this year to place particular emphasis on temporary (a/k/a “contingent”) workers and those working in alternative employment arrangements (e.g., those employed by employee staffing companies, temporary help agencies, contract labor firms, and the like). According to one recently published national study, the growth of these contingent and alternative working arrangements has itself become a disruptive force that not only negatively impacts workplace safety, but also challenges our existing structures of data collection, risk assessment, and assignment of legal responsibility [see Foley, M., et al., “Contingent Workers: Workers’ Compensation Data Analysis Strategies and Limitations,” American Journal of Industrial Medicine, 2014; 57(7):764–775]. Foley and his colleagues point out that while the workers’ compensation system of delivering medical care and disability benefits rests on the traditional employer-employee relationship, important dynamics of that relationship have radically changed during the past several decades due to increased reliance of “just in time” workers. They suggest that our industry and its regulators have been too slow to adapt to the sea change caused by the expansion of staffing agencies and the like. They join a chorus of others who argue that the number of injuries among contingent workers is substantially understated each year. When it comes to contingent workers, it isn’t just that the malleability of the employer-employee relationship skews our injury statistics; it produces some puzzling court decisions.

Recent Ohio Decision

In Mills v. Enviro-Tank Clean, Inc., 2014-Ohio-3866, 2014 Ohio App. LEXIS 3798 (Sept. 8, 2014), a state appellate court reversed a trial court’s summary judgment in favor of a defendant—on exclusive remedy grounds—in a negligence action filed against it by a worker supplied to it by a staffing agency. The appellate court held that since the staffing agreement in place between the defendant and the staffing agency specified that the defendant was required to get written permission from the staffing company before requiring any employee to climb a ladder more than six feet high, the worker was no longer the defendant’s employee when he climbed, and fell, from a ladder at defendant’s premises that was some 10 to 12 feet in height. The court reasoned that the worker had pointed to evidence that created a genuine issue of material fact and so the court remanded the case back to the trial court. Taking the court’s reasoning to its logical conclusion, it seems that the worker, in chameleon-like fashion, switched employers as he moved up and down the defendant’s ladder.


At some point in 2008, a temporary staffing agency (“agency”) assigned the worker to work for the defendant, a centralized waste treatment facility. While the agency was responsible for paying and insuring the worker, the defendant trained him, set his hours, provided him with a uniform and equipment, and assigned his job duties. The defendant eventually trained the worker to work as a water plant operator; a job that required him to fill a frac tank with wastewater and treat it with sulfuric acid. On December 20, 2010, the worker sustained injuries when he fell from a ladder he had climbed in order to check the water level inside the frac tank. The worker received workers’ compensation benefits as a result of his injuries and he eventually filed suit against the defendant, alleging his injuries were the result of its negligence.

The defendant moved for summary judgment, contending it was immune from suit because the worker was, in actuality, its employee and he had been compensated for his workplace injury through workers’ compensation, his exclusive remedy. The trial court agreed and granted summary judgment in favor of the defendant. On appeal, the employee contended in relevant part that at the time of his injury he was not acting as the defendant’s employee.

Appellate Court: Right to Control the Employee

The appellate court summarized the issue quite well, stating:

… Thus, in determining whether a temporary worker is actually an employee of his or her temporary agency’s customer, the key inquiry is who had the right to control the employee.

[Court's opinion, p. 7]

The court observed that in the worker’s deposition, he had admitted that defendant’s employees had trained him, that they provided him with a uniform and with all necessary equipment to perform his duties, that his supervisor set his work schedule, handled his requests for time off, and had the authority to discipline him. The worker also agreed that he reported daily to his supervisor, that he worked under the direction and control of defendant’s management, rather than anyone at the agency, and that before the day of the accident, he had climbed the frac tank ladder every day for two and one-half years without incident.

The defendant’s operations manager testified that he had signed a Safety Partnership Agreement with the agency approximately 11 months prior to the worker’s injury and that pursuant to the agreement, workers supplied by the agency were not permitted to climb structures, including ladders, higher than six feet above the floor, without the written permission of the agency. The manager did not dispute that the ladder in question was some 10 to 12 feet high. He maintained, however, that he had obtained the relevant permission from the agency, but could not recall if such permission had been granted in writing.

The worker argued that at the time he was injured, he was “contractually outside the employer-employee relationship.” The court indicated that the safety agreement constituted a “pertinent agreement” that tended to show that the agency specifically retained the right to control the means and manner of the worker’s work as detailed in the agreement. According to the court, the worker had established an issue of fact as to the legality of defendant’s control; summary judgment was, therefore, not appropriate.


In essence, the Ohio court crafted a “twilight zone” of legal liability related to this contingent worker. It never questioned the defendant’s level of control over the worker, except during the brief period each day when the worker passed through the magic six-foot threshold in his climbing activities. With all due respect, I think the court’s decision is wrong on a number of counts.

Control Is Not To Be Judged on Moment-to-Moment Basis

First, the court erroneously assumes the issue of control should be determined on a moment-to-moment basis. Instead, it should be the totality of the worker’s employment that determines if an “employer” has the right to exert control. Consider for a moment the personal comfort doctrine within workers’ compensation law [see Larson's Workers' Compensation Law, § 21.01 et seq.]. The basic workers’ compensation formula provides for benefits related to injuries and illnesses that arise out of and occur within the course of the employment. One is generally considered to be within the course of the employment when one is furthering the employer’s business. Courts are not rigid in the analysis, however, less an employee be determined to move in and out of the employment relationship when he or she took short bathroom or water breaks. Workers’ compensation law is sufficiently flexible to allow recovery for routine personal activities that are technically not part of the employment. In the recent Ohio case, however, the court’s thought process mimics the Verizon cellular telephone commercials. Instead of “can you hear me now?”, the court seems to suggest a repetitive inquiry, “am I under the borrowing employer’s control now? … How about now? Now?”

Was the Worker’s Activity a Substantial Deviation So as to Remove Him From the Employment?

Second, if the worker stepped outside of his employment with the defendant when he stepped above the six-foot threshold, can it legitimately be argued that at that time he was truly an employee of the staffing agency? Doesn’t the same logic that says he was not employed by the defendant at the time of the fall also show he was also not an employee of the staffing agency at the time? None of its representatives were exercising control over the worker. Indeed, the staffing agency’s policies prohibited his activity. Can it not be said that the worker’s activity removed him entirely from his employment and, therefore, disqualified him from recovering workers’ compensation benefits? (I don’t think so, but isn’t that the logical conclusion of the court’s decision?)

Why Can’t Control Be Shared?

Third, implicit in the court’s decision is the notion that control cannot be shared between the agency and the defendant. Numbers of decisions point exactly in the opposite direction, however [see, e.g., Hanisko v. Billy Casper Golf Management, Inc., 2014 N.J. Super. LEXIS 128, decided the same day as the Ohio Mills case]. Over the years, we’ve seen many “dual employment” holdings, particularly with leased employees, where the worker is considered to be under the control of more than one firm [see Larson's Workers' Compensation Law, § 68.01 et seq.]. Both are ultimately responsible for assuring the injured worker receives workers’ compensation benefits. Both should enjoy the exclusive remedy defense.

Caution, Ohio Employers!

Finally, a cautionary note for firms in Ohio that employ contingent workers: check your service agreements. Under this decision, if those agreements contain specific safety-related provisions, you may be opening your business to tort liability in spite of the fact that your “deal” with the staffing agency is priced so as to include full workers’ compensation coverage for work-related injuries.

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Wyoming Court Says Undocumented Worker Might Be Able to Employ Ingenious Argument to Avoid Exclusive Remedy Defense

The Wyoming Supreme Court, construing the statutory provision within the state’s Workers’ Compensation Act (“the Act”) defining “employee,” recently held that an an undocumented worker might be able to take advantage of his illegal status and sue his employer in tort, rather than settle for what he might otherwise have received via a workers’ compensation claim [see Herrera v. Phillipps, 2014 WY 118, 2014 Wyo. LEXIS 135 (Sept. 23, 2014)]. The court held that the injured worker had presented sufficient evidence to raise a factual issue as to whether the purported employer knew of the worker’s illegal status prior to the injury. If the employer had such knowledge, the tort action could move forward to a jury; summary judgment by the trial court favoring the “employer” was, therefore, improper. Continue reading

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Oregon Home Health Care Worker’s Employment Is Broader Than Approved Task List

Like a number of other states, Oregon has a program through which its Department of Human Services provides home health care services to qualifying clients (state citizens), at state expense. Generally, once a client qualifies, a case manager prepares a “Service Plan” and a “Task List” setting forth the number of home health care service hours to which the client is entitled as well as a list of tasks for which compensation can be paid. At issue in SAIF Corp. v. Tono, 2014 Ore. App. LEXIS 1297 (Sept. 17, 2014), was whether ORS 656.039(5) limits the workers’ compensation coverage available to a home care worker funded by the state to only those injuries suffered by the worker while performing tasks on the approved task list. The Oregon appellate court concluded that it does not. The workers’ compensation insurance carrier, SAIF Corp., contended that the home health care worker was injured in an automobile accident as she drove the client to get breakfast, that the worker was not authorized to drive the client anywhere, and that accordingly, the worker’s injuries did not arise out of and in the course of the employment.

The appellate court held that nothing in the plain terms of the provision imposed any limitation on the scope of workers’ compensation coverage available to state-funded home care workers. The court added that if the legislature had intended to limit workers’ compensation coverage for home care workers to particular activities, it would have said so expressly, as it did in ORS 656.031, ORS 656.033, and ORS 656.041, by stating that home care workers were entitled to workers’ compensation benefits “provided the injury occurred while the home care worker was performing a state-funded duty,” or some similar wording. The legislature’s omission of that type of express limitation in ORS 656.039(5) indicated that it did not intend to impose one on workers’ compensation coverage for home care workers.

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Ohio Court Clarifies Elements of Retaliatory Discharge Action Against Former Employer

In Onderko v. Sierra Lobo, Inc., 2014 Ohio App. LEXIS 4015 (Sept. 19, 2014), an Ohio appellate court recently held that in order to state a claim for retaliatory discharge, the former employee need not prove, as the first of three necessary elements, that he or she actually suffered a workplace injury; it is sufficient, as to that first element, that the former employee shows that he or she filed a workers’ compensation claim or otherwise initiated a proceeding (as the second and third necessary elements, the employee must show that (b) he or she was the subject of an adverse employment action and (c) that a causal link existed between the protected activity and the adverse action). Continue reading

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Divided Washington Court Again Refuses to Adopt Substantially Certain Test

A divided Supreme Court of Washington, noting that in Birklid v. Boeing Co., 127 Wn.2d 853, 904 P.2d 278 (1995) [see Larson's Workers' Compensation Law, § 103.04[3][c]], it had earlier refused to adopt the “substantially certain” test in defining deliberate injuries within the workers’ compensation context, held a Boeing aircraft worker failed to raise a material issue of fact as to whether Boeing had actual knowledge of certain injury resulting from asbestos exposure at its facility [see Walston v. Boeing Co., 2014 Wash. LEXIS 764 (Sept. 18, 2014)]. Plaintiff contended her husband, a Boeing employee, died after contracting mesothelioma after being exposed to asbestos at Boeing’s hammer shop in 1985 during a special maintenance operation. Plaintiff contended Boeing knew the maintenance operation was hazardous, since Boeing’s maintenance workers wore protective clothing and used ventilators while performing their work. Plaintiff’s husband and others worked in the area below the ceiling without special clothing or breathing equipment.

The majority of the high court agreed that summary judgment in favor of Boeing was appropriate, that as the experts in the case had acknowledged, asbestos exposure is not certain to cause mesothelioma or any other disease. The majority added that asbestos exposure does cause a risk of disease, but that is insufficient to meet the Birklid standard. The widow was limited to relief under the state’s Workers’ Compensation Act.

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Oregon Court Affirms Denial of Claim Due to Claimant’s Failure to Cooperate

On Wednesday, an Oregon appellate court affirmed the denial of an injured worker’s claim for workers’ compensation benefits on the grounds that she had, without an appropriate reason, failed to cooperate with the claims process, as required under ORS 656.262(15) [see Hopper v. SAIF Corp., 2014 Ore. App. LEXIS 1230 (Sept. 10, 2014)]. In doing so, the court agreed with the state’s Workers’ Compensation Board which had upheld an earlier denial on the basis that claimant failed to prove that her failure to cooperate was “for reasons beyond [her] control.” Continue reading

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Ohio Jury Uses MapQuest Data to Help Establish Significance of Claimant’s Deviation from Employment

An Ohio appellate court recently affirmed a jury’s determination that a home health care nursing director, who sustained injuries in an automobile accident as he drove from a restaurant to a pharmacy to retrieve a patient’s prescription, did not sustain an injury arising out of and in the course of his employment [Jones v. Multicare Health & Educ. Servs., 2014-Ohio-3724, 2014 Ohio App. LEXIS 3649 (Aug. 28, 2014)]. Noting that the jury considered, among other evidence, various data reports from MapQuest that showed the travel distance and travel times related to claimant’s purported personal deviation during a lunch break, the appellate found that even if the travel times were not fully authenticated, it amounted to harmless error since claimant had not objected to the admission of the reports at the time of trial. Continue reading

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California Court Says Plaintiff’s IIED Claim is Barred by Exclusivity

A California appellate court has sustained a demurrer to a complaint alleging, among other things, intentional infliction of emotional distress filed by a former employee of a car dealership against various coworkers, supervisors, and the owner of the dealership on the grounds that the claim was barred by the exclusive remedy provisions of the California Workers’ Compensation Act [see Yau v. Santa Margarita Ford, Inc., 229 Cal. App. 4th 144, 2014 Cal. App. LEXIS 772 (Aug. 26, 2014)]. The plaintiff contended that he had been fired after complaining to the employer’s management about fraudulent warranty repair claims being submitted to Ford Motor Company. He filed a civil action for wrongful termination against the employer and an IIED claim against the individual defendants, claiming the latter were involved in the warranty fraud and that they caused plaintiff to suffer emotional distress after he complained about their nefarious activity. He claimed the actions of the employer and individual defendants contravened a fundamental public policy.

The appellate court cited Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal.4th 876, 188 P.3d 629, 80 Cal. Rptr. 3d 690, in which the state supreme court held that even severe emotional distress arising from outrageous conduct that occurred at the worksite, in the normal course of the employer-employee relationship is the type of injury that falls within the exclusive province of workers’ compensation. The appellate court indicated that the trial court accordingly did not err by sustaining the demurrer as to the cause of action.

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Divided SC Supreme Court Says Injuries Sustained Playing Kickball Were Compensable

In a divided decision, the Supreme Court of South Carolina today held that an employee’s injuries sustained in a game of kickball arose out of and in the course of the employment [see Whigham v. Jackson Dawson Communications, 2014 S.C. LEXIS 367 (Aug. 27, 2014)]. The majority held that under the facts of the case, the employee was required to attend the kickball game since he had organized it for the employer.

Whigham was employed as Director of Creative Solutions at his employer, a marketing, advertising, and public relations company. As part of his employment, Whigham attended meetings wherein the managers discussed, among other things, the importance of team-building events. Whigham conceived the idea of having a company kickball game. The idea was approved by Whigham’s superior and Whigham went about planning it. The employer budgeted $400 for special T-shirts, drinks, and snacks. Once the event was organized, Whigham used the company intranet to promote it and encourage attendance. Roughly half of the firm’s employees attended. Whigham was injured while playing the game, landing awkwardly on his right leg, shattering his tibia and fibula. He was taken away in an ambulance and eventually underwent two surgeries. His doctor later informed him he would need a knee replacement. The single commissioner denied compensability on the grounds that the injury did not arise out of or in the course of Whigham’s employment. Specifically, she found Whigham was neither required to attend the event, nor was there any benefit beyond general employee morale to the company. The full commission affirmed, essentially adopting the single commissioner’s order. The court of appeals affirmed in a memorandum opinion, citing cases involving the substantial evidence standard.

The majority disagreed. Quoting Larson’s Workers’ Compensation Law, § 22.01, the majority held that Whigham was impliedly required to attend the kickball game he organized; it became part of his services. The majority added that while the event may have been voluntary for company employees generally, the undisputed facts unequivocally indicated Whigham was expected to attend as part of his professional duties. According to the majority, because the event was part of Whigham’s employment, it did not need to consider whether the employer drew any level of benefit from the kickball event.

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