Staff Reports
WC Monitor
07/31/2015
The Washington state Court of Appeals has ruled in favor of Bartlett Services and ELR Consulting in a case that alleged negligence in a worker’s 50-foot fall from a catwalk in the Hanford Site’s 300 Area in 2009. The case hinged on the practice of staff augmentation subcontracting and who was responsible for the work of a temporary employee. The worker who fell, millwright Dean Wilcox, was working for Washington Closure Hanford as it demolished the Hanford 336 Building, but compensation rules prevented him from suing his direct employer. Instead, he sued ELR, which had a staff augmentation subcontract with Washington Closure Hanford and provided a demolition and decommissioning work control planner who was employed by Bartlett Services. Wilcox also sued Bartlett Services.
A Benton County Superior Court judge issued a directed verdict in favor of ELR before a Benton County jury considered the case. That jury issued a verdict in favor of against remaining defendant Bartlett Services, finding after a two-week trial that the work control planner was a “borrowed servant” of Washington Closure Hanford. That meant the work control planner’s employer, Bartlett Services, would not be held responsible for alleged negligence of the work control planner when he was working for Washington Closure.
The work control planner for the 336 Building only inspected the catwalk from the ground because a climbing carabiner could not be found. He assumed stanchions and chains guarded the opening where the top of the ladder met the catwalk, according to the appeals court opinion. He did not know the ladder accessed the catwalk through a hinged hatch and his work package did not include instructions for all tasks to be performed on the catwalk, according to testimony at trial. On July 1, 2009, Wilcox and three other workers were on the catwalk to perform work to prepare for the building’s demolition. The workers were told to descend together, but then Wilcox and another worker were told to perform an additional task. The hatch had been left open by the second worker to descend the ladder, who thought the remaining two workers would follow him down immediately. As Wilcox performed his final task, he walked to the west end of the catwalk and fell through the open hatch. He struck a midpoint platform 25 feet below the catwalk and then fell another 25 feet to the concrete floor. He cracked two vertebrae, broke bones in both legs, and damaged his left knee, but suffered no head or other internal injuries.
Wilcox argued that contract language between Washington Closure, ELR, Bartlett, and the work planner showed Bartlett Services retained control over the work of its employee, who prepared the work package. He also raised several arguments based on the “borrowed servant doctrine,” which holds that whoever was borrowing the worker was responsible for his work. The doctrine does not apply when the servant is a professional, rather than a common laborer, Wilcox argued. He also argued that ELR had promised to indemnify Washington Closure, which he said held more weight than the borrowed servant doctrine.
The appeals court disagreed, finding that Washington Closure had exclusive control over the work package developed by the work control planner and that Washington Closure’s directly employed managers had supervised the planner and approved his work package. No trial testimony suggested any employee or manager of Bartlett Services oversaw or controlled preparation of the work package, the opinion said. ELR’s duty to indemnify Washington Closure would only be relevant in a lawsuit brought by Washington Closure for indemnification against ELR, the opinion said. The appeals court also concluded workers qualify as borrowed servants whether they are professionals or not.
