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A cardinal rule in workers’ compensation is that an employee cannot sue his or her employer in civil court for a work injury except for rare circumstances involving intentional harm. But what if the employee has two employers? Does that rule apply to both employers? The answer is yes, the rule applies to both employers, so the focus in many cases is on whether there really is an employer relationship to begin with. The case of Carabello v. Jackson Dawson Communications, Inc. and Transcend Creative Group, LLC, A-3294-17T3 (App. Div. March 26, 2019) provides some helpful insight on the requirements to establish “the second employer.”
Mr. Carabello worked for the New Jersey Sports and Exposition Authority as a teamster truck driver. The NJSEA contracted with Transcend and Jackson Dawson for a Mercedes Benz event at the IZOD Center which the NJSEA owned. Carabello was the only forklift operator at the IZOD Center during the event. NJSEA assigned him to operate the forklift to unload the trucks of Transcend and Jackson Dawson Communications. Carabello was told to report to Jackson’s head man for further instructions in securing the tent structure for Transcend and Jackson.
The head man for Jackson instructed Carabello to transport barrels filled with water using the forklift. Carabello proposed that it might be wiser to transport the barrels while they were empty but that suggestion was not followed. While loading the filled barrels on the forklift, two barrels fell off. As Carabello moved the last of sixteen barrels off the forklift, he felt a pop in his shoulder. His injury was promptly reported to the NJSEA, and the NJSEA paid workers’ compensation benefits.
Carabello then attempted to sue Transcend and Jackson Dawson for negligence in a third party action. Jackson and Transcend argued in essence that Carabello could not bring a civil suit against them because he was their “special employee.” The trial judge agreed and barred the civil suit, leading to an appeal by Carabello. In his appeal, Carabello argued that the five-pronged test of a special employee did not apply to his situation.
First, he argued that there was no express contract between Carabello and Transcend and Jackson. Second, he argued that he was doing the work of the NJSEA. It was on NJSEA property. The Appellate Division agreed with Carabello on both of these points.
Next, Carabello argued that his work was not controlled by Jackson and Transcend. The Appellate Division said this point was unclear. NJSEA told Carabello to use the forklift to help the exhibitors set up the event. Jackson and Transcend told him to move the filled water barrels to help secure their tent. On balance, the Court felt that NJSEA really controlled the work. “Plaintiff testified the scope of his employment for NJSEA included helping production personnel with event setup, which involved operating the forklift and assisting others during the production process.”
Fourth, Carabello argued that he was paid by NJSEA. The Court noted that Transcend and Jackson paid a fee for operation of the forklift, but they did not pay Carabello’s salary.
Lastly, Carabello argued that he could not be fired by any entity other than the NJSEA. The Court agreed that the license to produce the exhibition at the IZOD center did not provide Jackson and Transcend with the authority to hire or fire Carabello.
For these reasons, the Appellate Division reversed and allowed Carabello to sue Jackson and Transcend in a civil suit for their alleged negligence in contributing to his shoulder injury. One key distinction between this case and other special employee cases involving assigned nurses is that Carabello was working on NJSEA property when he was injured. In many of the nursing cases where special employment status is found, the nurses work on hospital property under direct control of the hospital.
Thanks to Rick Rubenstein, Esq. for bringing this case to our attention.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.