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.
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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.
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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.

Posted by Paul Pfeifer on Oct 15 2012. You can follow any responses to this entry through the RSS Feed. Both comments and pings are currently closed.