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Worker’s Compensation Act is only remedy for injured employee

September 11, 2013

A construction worker injured on a job site will have to find remedy through the Indiana Worker’s Compensation Act after the Indiana Court of Appeals denied his attempt to sue a subcontractor.

Donovan Johnson was hurt when part of a wooden block form broke loose while being lifted by a crane and struck him. He was working at a construction site in West Lafayette as an employee of R.L. Turner, the general contractor.

The crane operations were provided by Poindexter Transport, Inc. and Crane Service which had hired by R.L. Turner especially for the project.

Johnson and his wife filed a suit against Poindexter alleging negligent acts and loss of consortium.

Poindexter responded with a motion to dismiss. It asserted the trial court lacked subject matter jurisdiction because Johnson and the crane operator, David Creel, were co-employees. As a result, the Johnsons only had the option of pursuing a claim for benefits under the Indiana Worker’s Compensation Act since an employer-employee relationship existed between R.L. Turner and Creel.

The trial court agreed and granted Poindexter’s motion to dismiss.

In Donovan Johnson and Aileen Johnson v. Poindexter Transport, Inc. and Crane Service, 49A02-1212-CT-1027, the Court of Appeals affirmed the trial court’s judgment, finding Creel was a borrowed employee.

The COA reviewed the appeal using the seven factors identified in Hale v. Kemp, 579 N.E.2d 63, 67 (Ind. 1991). Factors weighing in favor of Poindexter’s argument were R.L. Turner had the right to terminate Creel from the job and determined the hours he worked; Creel was supervised by R.L. Turner employees; and the general contactor had constructed the forms, and the equipment used for lifting the structures.


 

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