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Exclusive remedy precludes borrowed worker’s negligence suit

Exclusive remedy precludes borrowed worker’s negligence suit

Workers compensation exclusive remedy rules bar a borrowed worker whose finger was partially amputated in a workplace accident from suing the borrowing employer for negligence because the company directed and controlled his work similarly to its own workers, an Illinois appeals court ruled.

Terrance Falge was an employee of Aurora, Illinois-based temporary staffing firm Labor Ready Midwest in 2012 when he was assigned by the company to work for North Aurora, Illinois-based Lindoo Installations Inc., according to a ruling issued by the Illinois 2nd District Appellate Court. Mr. Falge was handling a bundle of shelving while working for Lindoo when his right index finger was trapped between the bundle and a forklift, the ruling said.

Mr. Falge filed for workers comp benefits from Labor Ready and filed a negligence claim against Lindoo in the circuit court of DuPage County, Illinois, according to records in Terrance Falge v. Lindoo Installations Inc. The trial court granted Lindoo’s motion for summary judgment under the exclusive remedy provision of the state’s workers comp act.

Mr. Falge appealed, saying there was a question of material fact as to whether Lindoo was a borrowing employer entitled to exclusive remedy protection in part because the branch manager at Labor Ready periodically checked in with clients.

The appeals court affirmed the state circuit court’s decision, saying Lindoo qualified as a borrowing employer because it had the right to direct and control the employee’s work. Among the factors that determine a borrowed employee relationship are that the employee works the same hours as the borrowing employer’s employees; the employee receives instructions from the borrowing employer’s foreman and is assisted by the borrowing employer’s employees; the loaning employer’s supervisors are not present; the borrowing employer can tell the employee when to start and stop working and the loaning employer relinquishes control of its equipment to the borrowing employer, the appellate court said.

The fact that a representative of Labor Ready maintained an interest in the employee’s work is a customer service action that did not establish any supervision by Labor Ready over Mr. Falge’s work at Lindoo, the ruling said.

Furthermore, Mr. Falge’s consent to the loaned-employee relationship was implied because he accepted the temporary employment assignment, the ruling said.

“Because the undisputed material facts demonstrate that Lindoo directed and controlled plaintiff’s work and that plaintiff consented to the borrowed-employee relationship with Lindoo, there is no genuine issue of material fact as to whether Lindoo was a borrowing employer,” the appeals court said. “Therefore the trial court properly determined, as a matter of law, that plaintiff was Lindoo’s borrowed employee at the time of his accident and that thus his negligence action against Lindoo was barred by the exclusive remedy provision of the act.”

Lindoo Installations could not immediately be reached for comment.




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