Legal Memorandum: Joint Employment and Notice to Employer

Issue: What workers’ compensation cases exist nationwide involving joint employment and repetitive trauma or occupational disease exposure, particularly where notice of injury to one employer constituted notice to the other?

Sirkin & Levine v. Timmons, 652 A.2d 1079 (Del. Super. Ct. 1994) (“In the instant action, it is undisputed that Timmons’ work as a dental hygienist for both Sirkin & Levine and Loss & Miller put her in a situation of increased risk of contracting Hepatitis. All four of the medical experts who testified before the Board stated that it was impossible to determine which patient infected Timmons with Hepatitis. Therefore, the Board did not commit legal error in finding both Employers liable to Timmons for workers compensation benefits”);

Colwell v. Trotman, 615 P.2d 1094 (Or. Ct. App. 1980) (“[T]he last injurious exposure rule was judicially created in this state; it represents a policy decision to place responsibility for compensation upon an identifiable employer rather than placing disabled workers in the untenable position of proving which of two or more equally likely possibilities is true and/or of being barred by limitation periods from recovering compensation because an occupational disease may have been contracted in the service of a prior employer. The rule makes complete sense in the context of successive employments which contribute to an occupational disease; it makes little sense in the present context, where the worker was exposed to conditions which contributed to her occupational disease in two separate but simultaneous employments.”);

Riverboat Hotel Casino v. Harold’s Club, 944 P.2d 819 (Nev. 1997) (quoting Colwell);

Ayers v. Hakes, 689 N.Y.S.2d 281 (App. Div. 1999) (“Here, there was evidence that claimant worked […]