Control over worker determines which employer is liable

In Virginia, when a worker has two employers, the one who controls the worker's actions and whose work he is performing should be responsible for providing workers' compensation for his injuries.

Case name: Liberty Mutual Insurance Corp. v. Herndon, No. 0936-11-3 (Va. Ct. App. 02/07/12).

Ruling: The Virginia Court of Appeals held that a general contractor was a worker's statutory employer and therefore liable for benefits.

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What it means: In Virginia, when a worker has two employers, the one who controls the worker's actions and whose work he is performing should be responsible for providing workers' compensation for his injuries.

Summary: A worker contacted his cousin, who was a contractor, looking for work. The cousin referred him to his wife, who ran a business cleaning construction sites. A general contractor paid the wife's business to work on a construction site. The wife hired the cousin to frame the site. The worker worked with his cousin's framing crew. He was carrying wood when he fell through an open hole on the second story of an unfinished building and landed in the basement. He suffered severe injuries to his head, spine, and ribs. The worker spent 50 days in the hospital and was rendered a paraplegic. He sought benefits from the cousin, the wife's business, and the general contractor. The Virginia Court of Appeals held that the general contractor was liable for benefits.

The court found that the worker was acting as a borrowed employee at the time of the accident and that he was working for the cousin. The cousin and the wife both hired him and could have fired him. The cousin controlled his actions. Control over the employee is the most important factor in determining whether he is a borrowed employee, the court noted. Therefore, the general contractor was liable as the statutory employer.

The court also determined that the worker's injuries arose out of his employment. He fell through a hole while pulling plywood at the work site. None of his coworkers saw him fall, but some heard something hit the ground.

Read more at the WorkersComp Forum homepage.

March 29, 2012

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