You Be the Judge

Does Exclusive Remedy Provision Block Worker’s Suit?

By: | January 14, 2014 • 3 min read

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

A general contractor subcontracted with a crane service company to provide crane operations on a construction project. A crane operator who worked for the company was assigned to the project. A worker for the contractor was injured when a wooden form broke apart and fell from the operator’s crane.

The operator had worked at the jobsite for several weeks. The contractor and its employees directed his work. The contractor told him what materials to move and when and where to move the materials. The contractor provided the rigging and straps used to attach the materials to the crane. At the end of each day, the contractor approved the hours worked by the operator before turning his time sheet over to the company. The contractor’s employees built the wooden forms, attached them to the rigging and straps, and acted as signal men directing the operator’s operation of the crane.

The worker sued the company. The company argued that the worker’s exclusive remedy was to pursue a claim for workers’ compensation benefits. The worker asserted that he was entitled to recover against the company because the operator was not his coworker. The company contended that an employer-employee relationship existed between the contractor and operator. The trial court dismissed the suit. The worker appealed.

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How the court ruled: The Indiana Court of Appeals held that the exclusive remedy provision of workers’ compensation barred the worker’s suit. Johnson v. Poindexter Transport, Inc., No. 49A02-1212-CT-1027 (Ind. Ct. App. 09/11/13).

The court explained that control is the most important factor when determining whether an employer-employee relationship exists. Here, the contractor’s employees controlled the operator “almost completely” throughout each day he worked at the jobsite.

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The court found that the contractor had a right to indirectly discharge the operator from his employment. Also, the contractor supplied the equipment to move the forms and set the boundaries within which the operator worked. The evidence did not indicate that either the contractor or the operator believed that they had an employer-employee relationship. Balancing the factors of the employment relationship and giving considerable weight to the element of control, the court found that the operator was a borrowed employee of the contractor. Therefore, the answer is B: The worker’s exclusive remedy was under workers’ compensation.

A is incorrect. The court explained that although the operator only worked on the project for several weeks, balancing the factors of the employment relationship established that the operator was a borrowed employee of the contractor.

C is incorrect. Because the contractor did not pay the operator, directly or indirectly, the court said this factor weighed against a conclusion that he was a borrowed employee. However, taking into consideration all of the factors, the court concluded that the operator was a borrowed employee.

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]