State ex rel. Newman v. Indus. Comm.

• Decision Date: 15 January 1997
• Docket Number: No. 94-1675,94-1675
• Citation: 673 N.E.2d 1301,77 Ohio St.3d 271
• Parties: The STATE ex rel. NEWMAN et al., Appellees, v. INDUSTRIAL COMMISSION OF OHIO, Appellant.
• Court: Ohio Supreme Court

Page 271

77 Ohio St.3d 271

673 N.E.2d 1301

The STATE ex rel. NEWMAN et al., Appellees, v. INDUSTRIAL COMMISSION OF OHIO, Appellant.

No. 94-1675.

Supreme Court of Ohio.

Submitted Sept. 24, 1996.

Decided Jan. 15, 1997.

SYLLABUS BY THE COURT

Customer companies of temporary service agencies are "employers" subject to claims for violations of specific safety requirements.

Relator-appellees, Jeffrey Newman, Hillard E. Foster, Jr., and Kelly Henderson, were employed by temporary employment services. They were all assigned to work for a customer of their employment service where, in the course of their employment, they suffered work-related injuries. Appellees' workers' compensation claims for their injuries were all allowed.

Appellees filed applications for violation of specific safety requirements ("VSSR"), stating on their applications that they were injured while employed by their temporary services: (Newman) Manpower, Inc., (Foster) Victor Temporary, Inc., and (Henderson) Kelly Services, Inc. Appellees also named as their employers the companies where their injuries occurred: (Newman) Wigand Corporation, (Foster) Invacare, Inc., and (Henderson) Forest City Foam Products. Appellees' VSSR claims against the temporary employment services were all denied on the basis that the services had no control over the conditions alleged to be in violation of the commission's specific safety requirements. The Industrial Commission refused to take action or make findings with respect to the claims against the customer companies. Appellees' motions for rehearing were all denied.

Appellees filed a joint writ of mandamus seeking to compel the appellant, Industrial Commission, to take jurisdiction over their applications as to the customer companies. The writ also sought an order requiring the appellant to investigate, hear and determine appellees' VSSR claims against the customer companies.

The court of appeals adopted its referee's report and granted the writ of mandamus.

This matter is now before this court upon an appeal as of right.

Weiner & Suit Co., L.P.A. and Walter Kaufmann, for appellees.

Betty D. Montgomery, Attorney General, and Jetta Mencer, Assistant Attorney General, for appellant.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, Columbus, urging affirmance for amicus curiae, Ohio Academy of Trial Lawyers.

FRANCIS E. SWEENEY, Sr., Justice.

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. Lyburn, 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...