WC Exclusive Remedy

I have a case where the RA has filed a MSJ as a result of a trip and fall. My client worked for a data backup company, but was contracted permanently to a car rental company. She slipped and fell at work due to negligence of the rental company. The rental company claims I’m barred by exclusive remedy from Workers’ Comp. I need some guidance regarding if, how, and why this work solely for the benefit of the rental company would be a bar under the exclusive doctrine.

I have a brief, never completed, on when a subcontractor (or subcontractor's employee) is considered to be the "statutory employee" of the contractor, so that the contractor may assert the exclusive remedy. The Oklahoma case is Bradley v. Clark, 804 P.2d 425 (Okla. 1990). The contractor may only assert the defense if the work done by the sub is "necessary and integral" to the contractor’s trade. The case sets out a three-tiered test to determine if the sub's work is necessary and integral. If the sub’s work is specialized (like data backup), it is not, as a matter of law, necessary and integral.

If not specialized, you go to the second tier and determine if the sub's work is part of the contractor's "trade, business, or occupation." You have to determine if the sub's work is typically performed by employees or by independent contractors. This "tier" has three prongs:

  1. 1. Is the contract work routine and customary;
  2. Does the principal have the equipment and/or manpower capable of performing the contract work;
  3. What is the industry practice relative to the contract work (do industry participants normally contract out this type of work, or do they have their own employees perform it)?

Finally, if the exclusive remedy is not negated at either of the first two tiers, you look at whether, at the time of injury, the contractor was engaged in the kind of work done by the sub. So if the rental company subbed all of its data backup work at the time, even if you can't satisfy one of the first two tiers, your sub is not a "statutory employee" and the exclusive remedy is not a defense. The modern trend is away from finding "statutory employer status." I think you beat them on exclusive remedy, maybe on all three tiers of Bradley.