What Do You Think: Could Injured Worker Sue Coworker Over Workplace Chemicals?

Frank Ferreri

Indianapolis, IN (WorkersCompensation.com) – When a coworker owns the premises where a worker experiences an injury, is it a workers’ compensation case or a premises liability tort lawsuit?

An Indiana court recently had a chance to tackle that question.

An entrepreneur wore “many hats” in several interconnected businesses where he worked with an employee who became ill, allegedly due to workplace contaminants. The business at issue was a limited liability company under state law. The entrepreneur wasn’t specifically designated as an employee of the LLC.

The employee sued the entrepreneur for damages, raising a premises liability claim, but the entrepreneur contended that because he was the employee’s coworker, her exclusive remedy was to seek benefits under the state’s workers’ compensation law.

At trial, the court found in the entrepreneur’s favor, ruling that the employee was limited to workers’ compensation benefits for her alleged injury. She appealed to the next level in court.

Under Indiana law, for purposes of workers’ compensation, a member or manager may be considered an employee of the company only if the LLC specifically designates him so through specific procedures. At the same time, employees may sue third parties for work injuries only when the third party is neither the employer nor “in the same employ.”

Indiana also specifies that employees are “in the same employ” if the injury at issue occurred in the course of and arose out of the co-employee’s employment.

Was the employee’s exclusive remedy in workers’ compensation law?

A. Yes. The employee’s alleged personal injury arose from workplace contaminants in a workplace she shared with the entrepreneur.

B. No. Without a designation that the entrepreneur an employee of the LLC, the entrepreneur could be sued in a tort case.

If you selected A, you agreed with the court in Brenner v. Chavez, No. 20A-CC-538 (Ind. Ct. App. 12/08/20), which affirmed the lower court’s ruling in the entrepreneur’s favor. The court explained that the employee’s alleged personal injury arose out of and in the course of her employment with a corporation of which she and the entrepreneur were employees.

“They shared not only the same employer but also the same workplace,” the court explained.

The court pointed out that previous cases had reached the same conclusion:

Because the entrepreneur and employee were co-employees, the employee’s exclusive remedy was under workers’ compensation law.

This feature does not provide legal advice.

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