State ex rel. Newman v. Industrial Commission

673 N.E.2d 1301, 77 Ohio St. 3d 271

• Court: Ohio Supreme Court
• Decided: January 15, 1997
• Docket: No. 94-1675
• Status: Published

Opinions

Francis E. Sweeney, Sr., J.

This court must decide whether customer companies of temporary service agencies are “employers” subject to claims for violations of specific safety requirements. For the following reasons, we find that they are employers for purposes of VSSR claims. Accordingly, we affirm the court of appeals’ judgment which issued a writ of mandamus ordering the Industrial Commission to consider appellees’ VSSR claims.

Section 35, Article II of the Ohio Constitution provides for the granting of an additional award over and above the standard workers’ compensation benefits where the claimant’s injury or death is found to have been caused by the employer’s violation of a specific safety requirement of the commission. The workers’ compensation premium does not cover the additional award. The VSSR is an award paid by the employer directly. Thus, a VSSR award is not a modification of a previous award, but is a new, separate, and distinct award. State ex rel. Curry v. Indus. Comm. (1979), 58 Ohio St.2d 268, 269, 12 O.O.3d 271, 272, 389 N.E.2d 1126, 1128.

An employee seeking to recover on a VSSR claim must show more than the violation and proximate causation. The employee must also show that his or her employer is the party that violated the specific safety requirement. State ex rel. Lyburn Constr. Co. v. Indus. Comm. (1985), 18 Ohio St.3d 277, 279, 18 OBR 329, 331, 480 N.E.2d 1109, 1111.

Appellees cite Daniels v. MacGregor Co. (1965), 2 Ohio St.2d 89, 31 O.O.2d 141, 206 N.E.2d 554, in support for their argument that the customer companies may be deemed to be their employers for purposes of VSSR claims. In Daniels, an employee of a temporary agency was injured while working for a customer of that agency. The employee received workers’ compensation benefits through a claim filed with the temporary agency. The employee then attempted to bring a tort action against the customer for damages. However, this court held that the customer, who had complied with the workers’ compensation provisions, could not be sued for damages. In so holding, this court stated:

“Where an employer employs an employee with the understanding that the employee is to be paid only by the employer and at a certain hourly rate to work for a customer of the employer and where it is understood that that customer is to have the right to control the manner or means of performing the work, such employee in doing that work is an employee of the customer within the meaning of the Workmen’s Compensation Act.” (Emphasis added.) Id. at syllabus; Campbell v. Cent. Terminal Warehouse (1978), 56 Ohio St.2d 173, 10 O.O.3d 342, 383 N.E.2d 135; see, also, State ex rel. Zito v. Indus. Comm. (1980), 64 Ohio St.2d 53, 18 O.O.3d 257, 413 N.E.2d 787 (a general contractor who had the “authority to alter or correct” any deficiencies on the construction site could be liable for a VSSR claim brought by employee injured by scaffolding erected by subcontractor); State ex rel. Lybum, supra.

Therefore, the court in Daniels found that the entity which controls the manner or means of performing the work is also the “employer” of the employee regardless of whether that entity paid the premium into the State Insurance Fund from which the compensation is paid. While Daniels dealt with the Workers’ Compensation Act’s exclusivity provision, R.C. 4123.74, we agree with appellees that its rationale should be expanded to allow coverage under the Act for VSSR claims against the customer-employer. To hold otherwise would be grossly unfair, as it would allow employers who fail to comply with the safety requirements immunity from VSSR claims as well as immunity from common-law damages. The commission’s policy would permit customers of temporary agencies to avoid the requirements of the VSSR laws by making a contract with a temporary agency which lets the agency “employ” the workers on the employer’s worksite. The employer who hires through a temporary agency would have no incentive to provide a safe workplace. Moreover, to adopt the Industrial Commission’s position would leave temporary employees with no remedy to address injuries sustained as a result of an alleged violation of a specific safety requirement. Depriving these temporary employees of the additional award provisions of Section 35, Article II would defeat the General Assembly’s purpose in enacting VSSR laws. See State ex rel. Lybum, supra, at 280-281, 18 OBR at 332, 480 N.E.2d at 1112 (Holmes, J., dissenting).

Based on the above, we conclude that a worker injured while working for a customer of a temporary service agency can pursue a VSSR claim against that customer company. Accordingly, we affirm the court of appeals’ issuance of a writ of mandamus ordering the Industrial Commission to consider appellees’ claims.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, Pfeifer, Cook and Stratton, JJ., concur. Stratton, J., concurs separately.