Recently, the Ohio Supreme Court addressed the issue of which employer was the “responsible” employer for a workers’ compensation claim when the injured worker had a relationship with more than one employer. In the case of State ex rel. Oakwood v. Indus. Comm., Slip Opinion No. 2012-Ohio-3209, the Court determined that the Industrial Commission is not required to follow any specific tests to determine the appropriate employer in multi-employer relationships, but rather that the components of the so-called “totality of circumstances” test were to be flexibly applied to give the Industrial Commission broad discretion in making the determination of which employer would be held responsible for the worker’s injury.
In the case at hand, the injured claimant was a Village of Oakwood Police officer hired by a construction contractor to help with traffic control during a construction project. The contractor was responsible for paying the officer, the pay came on the contractor’s checks, and the contractor reimbursed the Village for use of the police cruiser. Importantly, though, the Village mandated that the contractor use all Village police officers for traffic control on the contractor’s projects within Village limits. This was a deviation from the contractor’s general practice of having State Highway Patrol officers handle the traffic control. Further, when the injury occurred, the injured worker was wearing his police uniform.
The Industrial Commission of Ohio found that the Village and not the contractor was the responsible employer for purposes of the workers’ compensation claim. The Commission determined that the injured worker would not have been engaged in his duties of controlling traffic for the contractor were he not a Village police officer, in uniform and in a police cruiser, and having been specifically authorized by his employer to be conducting such activity. The Village filed an appeal in mandamus and argued that the construction company was the proper employer and not the Village. The Village advanced the argument that the cases of Lord v. Daugherty and Fisher v. Mayfield were controlling such that the “totality of the circumstances” test demanded that the contractor be the employer of record. Lord v. Daugherty and Fisher v. Mayfield are usually applied in the context of claims under the coming and going rule whereby this is a test used to determine compensability of the claim itself, and not in situations where the issue is determining the responsible employer for an otherwise compensable claim. The totality of the circumstance test is as follows: (1) the proximity of the scene of the accident to the place of employment; (2) the degree of control the employer had over the control of the scene of the accident; and (3) the benefit the employer received from the injured worker’s presence at the scene of the accident.
The Supreme Court declined to adopt a mandatory test found under Lord/Fisher holding that the more appropriate approach is a flexible one when dealing with certain complex workers’ compensation matters. The Court declined to demand that the Industrial Commission use the Lord factors as a mandatory part of its analysis, and instead found that the Lord test may be used to assist in the Commission’s analysis. The Supreme Court ultimately found that it was not an abuse of discretion for the Industrial Commission to use an analysis other than the Lord factors when determining the appropriate employer for the responsibility of a claim.
Going forward, the Supreme Court’s decision means there is no defining test that must be used by the Industrial Commission to determine the responsible employer in situations where more than one employer has an employment relationship with an injured worker. Rather, the Commission may (but does not necessarily have to) follow the Lord/Fisher “totality of the circumstances” test. The Commission will continue to have broad discretion in evaluating the appropriate employer of record in situations involving injured workers with employment relationships with multiple employers.
If you have any further questions regarding this decision or have any other question with respect to workers’ compensation claims or employment practices liability in general, please contact a member of our Workers’ Compensation Practice Group or Employment Practice Liability Practice Group.