Who was the employer?
By Justice Paul E. Pfeifer
In the spring of 2008, the village of Oakwood, near Cleveland, was undergoing some highway construction performed by Kokosing Construction Company, Inc. On such projects, Kokosing typically used State Highway Patrol officers for traffic control, but this time Kokosing had been directed by Oakwood police officials to use Oakwood officers for traffic-control duties within the village boundaries.
Craig Ali was one of the Oakwood officers assigned to the road project. While on duty, Ali was injured when his cruiser was hit by another vehicle.
Ali filed a workers’ compensation claim for his injuries. The Bureau of Workers’ Compensation initially allowed the claim against Oakwood, but later issued an order naming Kokosing as the proper employer. Kokosing objected, and the claim was sent for a hearing before the Industrial Commission of Ohio, which handles such matters.
While he was on assignment, Ali wore his Oakwood police uniform and sat in an Oakwood police cruiser that Kokosing had leased from the village. Kokosing, not Oakwood, paid Ali for his services. So, was Kokosing or Oakwood the employer against whom the claim should be made?
A district hearing officer for the Industrial Commission concluded that Kokosing was Ali’s employer at the time of his injury, because the cruiser was leased by Kokosing. But when the claim was reviewed by a staff hearing officer, the decision of the district hearing officer was reversed.
The staff hearing officer’s report stated that Kokosing had been directed by the village’s police department to use Oakwood officers for traffic control duties, and the police department arranged for Ali’s use of a cruiser.
The staff hearing officer noted that Ali was at the site of the accident for the purposes of maintaining traffic control, an activity not performed by Kokosing. Ali “would not have been engaged in traffic control functions” were he not an Oakwood police officer.
After that decision, Oakwood filed a complaint in the court of appeals, alleging that the Commission had abused its discretion in finding Oakwood as Ali’s employer for purposes of his workers’ compensation claim. But the court of appeals found no abuse of discretion, which prompted Oakwood to file an appeal with us – the Ohio Supreme Court.
Our analysis of this case centered on two previous decisions of our court: Lord v. Daugherty, from 1981, and Fisher v. Mayfield, from 1990.
These cases identified three factors to consider when trying to determine whether an injury occurred in the course of a claimant’s employment. Although that wasn’t really the issue in Ali’s case, Oakwood challenged the Commission’s analysis of Ali’s case because the Commission failed to consider the factors in Lord and Fisher. We therefore had to determine if the Commission had abused its discretion by not relying on those cases.
The claimants in Lord and Fisher were injured while deviating from their normal workday routine. That raised a pivotal question: Did the injury occur in the course of and arise from employment?
The decision in Lord presented three factors to consider: (1) the proximity of the scene of the accident to the place of employment; (2) the degree of control the employer had over the scene of the accident; and (3) the benefit the employer received from the injured employee’s presence at the scene of the accident.
The decision in the 1990 Fisher case affirmed the test from Lord. But in that decision we cautioned that “workers’ compensation cases are largely very fact specific. As such, no one test or analysis can apply to every factual possibility. Rather, a flexible and analytically sound approach to these cases is preferable. “Otherwise, the application of hard and fast rules can lead to unsound and unfair results.”
The observations in that decision support the assertion by the Commission that consideration of the Lord/Fisher factors shouldn’t be mandatory. Indeed, in 1997 a court of appeals attempted to apply those factors to a case that was similar to Ali’s case.
That 1997 case involved a Dayton policeman named Cooper who moonlighted as an undercover loss-prevention specialist as a local grocery. During one of his grocery shifts, when a shoplifter tried to flee, Cooper pulled his gun and badge, and identified himself as a Dayton police officer. Cooper was injured in the encounter.
The issue in Cooper wasn’t whether the injury happened in the course of his employment; it clearly did. Instead, the question was – employment with whom: the city or the grocery?
To answer this, the court of appeals turned to the decision in Lord. But the court of appeals admitted that the three-pronged test from Lord proved “somewhat problematic when applied to the facts” of the Cooper case. The difficulty was that applying the Lord factors to each of two employers can produce the same answer.
For example, because the injury occurred in the store’s parking lot, which was located within Dayton’s boundaries, proximity could be attributed to either potential employer. The same was true of control. The grocery retained day-to-day control of the parking lot, but the city police also retained control for law-enforcement purposes. The third factor – benefit to the employer – was also not a helpful, because both employers benefited from Cooper’s presence.
Ultimately the court in that case moved beyond Lord and concluded that when Cooper pulled his badge and identified himself, he was no longer acting as a store security guard but as a Dayton policeman.
Therefore, consistent with Fisher and its support of a flexible approach to certain complex workers’ compensation matters, we determined that when confronted with two potential employers the Commission may – but is not required to – use any of the Lord/Fisher factors that it believes will assist analysis.
If different considerations are necessary, however, the Commission must have the discretion to use them. We concluded that the Commission did not abuse its discretion by not directly discussing the three enumerated Lord/Fisher factors. By a seven-to-zero vote we affirmed the judgment of the court of appeals that Oakwood was Ali’s employer at the time he was injured.
EDITOR’S NOTE: The case referred to is: State ex rel. Oakwood v. Indus. Comm., 132 Ohio St.3d 406, 2012-Ohio-3209. Case No. 2011–0060. Decided July 18, 2012. Opinion Per Curiam.