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Faulkner v. Mayfield3/25/1988
there is a small fraction who do not fit the mold. Nonetheless, accidents happen to the people engaged in these minor kinds of employment, and the costs and disabilities resulting from these accidents are just the same as in regular employment. The underlying theory of workers' compensation is that the risk and costs of on-the-job accidents be spread, as equitably as possible, to all employees and all employers.
Not every injury is compensable under workers' compensation law, of course, and most of the cases have dealt with close issues such as we have here, but the cases have established some criteria. Payment is one criterion for determining the employee -employer relationship. In Coviello v. Indus. Comm. (1935), 129 Ohio St. 589, 3 O.O. 9, 196 N.E. 661, a case dealing with the leasing of cabs by cab drivers, the court noted that payment was a sine qua non of the employment relationship. Another basic standard is the right to hire and fire and to control the person's work. This standard had been regularly used for years, e.g., Case v. Indus. Comm. (1939), 62 Ohio App. 219, 15 O.O. 540, 23 N.E.2d 652, and more recently in Foran v. Fisher Foods, Inc. (1985), 17 Ohio St.3d 193, 17 OBR 430, 478 N.E.2d 998, where the court said, at 194, 17 OBR at 431-432 478 N.E.2d at 999:
"A review of prior case law establishes that one who exercises day-today control over the employee will be considered as the employer for purposes of workers' compensation."
Faulkner was sent out by the court to a private individual to chop wood.
Faulkner was paid a set rate of $30 per day, although all income was used to pay off the fine. He worked at thsdirection of the court bailiff who controlled and directed when and where he was to work. Faulkner meets all the usual tests for employment. The question presented to this court is whether he should be denied participation in the Workers' Compensation Fund on public policy grounds.
Though many jurisdictions would deny participation in a workers' compensation fund for injuries sustained while working in a prison or correctional facility, several states are beginning to consider prisoners employees if loaned out to a state agency or private concern. In Pruitt v. Workmen's Comp. Appeals Bd. (1968), 261 Cal. App. 2d 546, 68 Cal. Rptr. 12, a county inmate was sent to work for and under the control of a third party. The court found he was an employee for purposes of participating in the workers' compensation fund, and that the amount of the inmate's salary was immaterial.
In Johnson v. Indus. Comm. (1960), 88 Ariz. 354, 356 P. 2d 1021, a county jail inmate was loaned out to work for a private corporation. The private corporation had control over the inmate's work. The inmate was not paid in cash for his services, but was given food, lodging and time off his sentence. The court held that a contract for hire was made when the private corporation established control over the inmate. The fact the inmate was not paid with money did not change his employment contract. "The payment of money is not the only basis for a contract of employment. A man may work for other benefits, including an agreement by the employer to render some special service for the employee ." Johansen v. Gray (1954), 283 App. Div. 647, 649, 130 N.Y. Supp. 2d 35, 37.
In Clinton v. White Crow (Okla. 1971), 488 P. 2d 1232, the opposite reasoning was used. An inmate who worked for the city collecting garbage to discharge his fine was held not to be an employee under the workers' compensation law. The inmate could not participate in the workers' compensation fund since he did not receive wages for his work. Since the inmate was volunteering his time, no contr
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