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D’Avanzo v. Mobil Dredging & Pumping Co.

A-1670-00T2 (N.J. Super. App. Div. 2002) (Unpublished)

WORKERS COMPENSATION; SPECIAL EMPLOYERS — An employee can be deemed to work for more than one employer at a time for purposes of the workers compensation act and there is a five prong test to determining when that is the case.

An environmental cleaning services company contracted with a labor staffing company for general laborers. The work involved cleaning dust from an old factory and was expected to take a week to ten days. Toward the end of the project, there was only enough dust removal work for two laborers. The cleaning company’s on-site supervisor asked the work group leader if he and the idle laborers could do water blasting work. It was explained that this was heavy and dangerous work. The work group leader, not wanting most of the crew to remain idle, agreed to perform the work and have the other idle laborers do it. The cleaning company’s supervisor gave little instruction and some of the work progressed without incident. Unfortunately, the cleaning gun was defective and the work leader was seriously injured. When he sued the environmental cleaning company, raised the bar of worker’s compensation. The Court concluded that the injured worker was a “special employee” of the environmental cleaning company at the time of the accident. Case law established five criteria to determine a special employment relationship. These are: “(1) the employee has made a contract of hire, express or implied, with the special employer; (2) the work being done by the employee is essentially that of the special employer; (3) the special employer has the right to control the details of the work; (4) the special employer pays the employee’s wages; and (5) the special employer has the power to hire, discharge or recall the employee.” Under New Jersey law, “an employee, for the purpose of workers’ compensation [can] have two employers, both of whom may be liable in [workers’] compensation.” The right to recover such benefits “serves to bar the employee from maintaining a tort action against either employer.” The injured worker contended that he did not give “deliberate and informed consent” to become a special employee. The Court, however, found that his “voluntary acceptance of the water blasting work ... gave rise to an implied contract of employment.” Further, the environmental cleaning company was in the business of providing such services. The water blasting work being done was, in fact, essentially that very same work. Therefore, because the injured worker was performing the cleaning company’s work, “the second prong of the special employment test was met.” Even though the worker asserted that he did not take orders from the cleaning company and that he was not under the cleaning company’s control, his own testimony undercut that argument. There was no question that the cleaning company’s on-site supervisor controlled the work that was available for the injured worker to perform and also directed how the work was to be performed. Consequently, the third criterion “favored creation of a special employment relationship, was also met.” “The fourth and fifth factors, regarding payment of wages and power to hire or discharge,” were satisfied. Even though the injured worker was paid by the temporary employee service provider, the wages were indirectly paid from the fees invoiced to the environmental cleaning company. There was no dispute that the on-site supervisor had the ability to send the laborers home if they did not accept the water blasting assignment. Consequently, “[a]pplication of the five-part special employment test [led] to the conclusion that [the injured worker] was [a] special employee [of the cleaning contractor] at the time of his accident.”

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