The Supreme Court of Appeals of West Virginia recently decided that a second employer can be considered a “special employer” giving rise to special employment status for workers’ compensation immunity purposes. The specific issue of whether a temporary employer can obtain workers’ compensation immunity protection from common law suits based upon the commonly accepted “special employer” rule was an issue of first impression in West Virginia. Justice Benjamin wrote the June 15, 2012 opinion in Bowens v. Allied Warehousing Services, Inc., Case No. 11-0210, where the West Virginia Court joined the majority of jurisdictions and found that a second employer meeting the requisite criteria set forth in 3 Larson’s Workers’ Compensation §67.01 (2011 ed.) may be deemed a special employer for workers’ compensation immunity purposes.

Bowens worked for a temporary employment agency, Manpower, and was assigned to operate a forklift for Allied Warehousing. While operating the forklift, Bowens suffered injuries and filed a workers’ compensation claim listing Manpower as his employer. Allied had no involvement in the workers’ compensation proceeding. After Bowens’ temporary total disability benefits were suspended by an administrative law judge decision, he sued Allied asserting various claims including negligence, unsafe workplace, negligent hiring, workers’ compensation fraud and common law fraud. The Court affirmed the Circuit Court of Wayne County’s dismissal of the workers’ compensation fraud and common law fraud claims and granted summary judgment to Allied finding it to be a special employer of Bowens for the purpose of workers’ compensation immunity.

The Court adopted the widely accepted test set forth in 3 Larson’s Workers’ Compensation §67.01 (2011 ed.) and by the United States Fourth Circuit Court of Appeals in Maynard v. Kenova Chemical Co., 626 F.2d 359 (4th Cir. 1980). The test provides three basic elements which must be satisfied to determine whether a second employer is a special employer giving rise to a special employment status for workers’ compensation purposes: (1) whether the employee has made a contract of hire, express or implied, with the second employer; (2) whether the work being done is essentially that of the second employer; and (3) whether the second employer has the right to control details of the work. Bowens at pp. 23-24. When all three of the above conditions are satisfied in relation to both employers, both employers will be liable for workers’ compensation and both will have the benefit of the exclusivity defense of tort claims.

Additionally, when analyzing the factors as they applied to the facts of the case, the Court found that whether an individual is a special employee for workers’ compensation purposes is generally a question of fact. However, a court may find special employment status as a matter of law where the pleadings, depositions, answers to interrogatories, together with affidavits establish that these is no genuine issue of material fact to the contrary. Through established facts that Allied controlled all the details of Bowens’s day to day work, the Court found that Allied’s authority to exercise complete supervision and control over Bowens while he was on Allied’s premises established Allied as Bowens’s special employer within the meaning of West Virginia’s workers’ compensation statutes.