Brookshire Grocery Co. v. Morgan

2017 Ark. App. 387, 525 S.W.3d 58, 2017 Ark. App. LEXIS 411
Court of Appeals of Arkansas·Decided June 21, 2017·No. CV-16-850·Published·Cited by 1 cases

Opinion

ROBERT J. GLADWIN, Judge

| Appellant Brookshire Grocery Company files this one-brief appeal from the August 9, 2016 Arkansas Workers’ Compensation Commission (Commission) opinion in which the Commission affirmed and adopted the Administrative Law Judge’s (ALJ) January 14, 2016 decision that found that it was a dual employer -of appellee Cleon Morgan at the time of his injury.

I. Facts

Appellee, aged sixty (D.O.B. December 5, 1966), completed his high schqol education and training at the police academy. His health history includes a, recent non-work-related back surgery. His work experience includes employment as a. volunteer sheriff, a city police officer, and since January 2010, a deputy sheriff for Jefferson County. As a deputy sheriff, he serves-warrants, transports prisoners,, conducts routine patrols, performs security checks, handles security at the county courthouse, and works motor-vehicle accidents. He is provided a uniform, .a badge, a Taser, a gun, and a patrol car by the Jefferson 12County Sheriffs Department (Department) and is authorized to make arrests within Jefferson County. Appellee works from 8:00 a.m, to 6:00 p.m. five days a week for the Department.

After one year of service, the Department allows officers to work part time with its permission. This permission must be renewed in writing each year. The Department does not allow anyone to work more than twenty hours per week in part-time employment; Deputies are allowed to use their county-issued equipment to perform their private, off-duty jobs.

In 2012, appellee began working part time for appellant approximately ten hours per week after having learned about the job opportunity through the Department. Appellant did not provide any equipment or employee benefits-to appellee; likewise, he received no training or supervision from appellant.

Appellee’s primary job for appellant is to be visible up front in appellant’s store, and his duties include apprehending shoplifters and keeping order in the store. While working at appellant’s location, ap-pellee is also allowed to apprehend people with outstanding warrants — that are unrelated to appellant — transport them to jail, then return to appellant’s store and resume his job duties as a security guard.

On February 19, 2014, appellee injured his ankle while securing a shoplifter while performing his security-guard duties at appellant’s place of business. Initially, appel-lee thought he had sprained his ankle, but after receiving medical treatment, he was diagnosed with ligament tears. He missed five weeks of work from both his job for appellant and his job for the .Department.

| aAfter the injury, appellee’s supervisor at the Department told him that the injury was covered by workers’ compensation but that the Department’s carrier had denied the claim. Appellee paid for his medical treatment with his group health insurance and used sick leave from the Department during his time off from work.

A hearing was held before the ALJ to determine appellee’s entitlement to medical expenses and temporary total-disability benefits. Specifically at issue was the employment relationship between the parties. Appellant claimed that at the time of the injury, appellee was acting in his capacity as a deputy and that, accordingly, appellant had no liability. The Department contended that appellee was off duty at the time of the injury and was being paid by appellant to act as a security guard. The Department argued alternatively that ap-pellee was acting as a dual employee under appellant’s control and that appellant is either liable or should split appellee’s expenses and benefits.

The ALJ found in its January 14, 2016 opinion that appellee was a joint employee of both appellant and the Department at the time he suffered his injury and that both were liable for benefits and expenses. The ALJ determined that appellee was employed full time as a county deputy and part time as a security guard for appellant. It was noted that both employers acquiesced to this symbiotic relationship, and both benefited from the relationship. The Commission affirmed and adopted the ALJ’s findings without discussion in its August 9, 2016 opinion. Appellant filed a timely notice of appeal on September 2, 2016.

14II. Standard of Review

The standard of review in workers’compensation cases is well settled. On appeal, this court views the evidence and all reasonable inferences therefrom in the light most favorable to the Commission’s decision and affirms that decision when it is supported by substantial evidence. Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767. It is for the Commission to determine where the preponderance of the evidence lies. Id. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Id. It is exclusively within the province of the Commission to determine the credibility and the weight to be accorded to each witness’s testimony. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id. Additionally, evidence is reviewed impartially, without giving any benefit of the doubt to either party. Ark. Code Ann. § 11-9-704 (Repl. 2012).

II. Discussion

Appellant argues that the Commission erred when it held that appellee was its employee and not an independent contractor on the day appellee’s injury occurred. Appellant reiterates that it contracts with the Department to provide part-time security for its stores. Appellant maintains that as a deputy sheriff, appellee is considered “on duty" twenty-four hours a day, even though he may not be officially scheduled to be working. While working at appellant’s store, appellee wore his deputy’s uniform, carried his gun and 1 (¡badge, and for all practical purposes appeared as he did when he was “on the clock” with the Department. He was required to follow the policies of the Department when working for appellant. Appellee received his orientation for the security-guard position with appellant from fellow deputy sheriffs who also had worked security for appellant before he assumed those duties. He received neither orientation from appellant nor copies of its policies and procedures regarding his duties. Appellant reiterates that appel-lee retained his arrest powers and had, on occasion, arrested people inside appellant’s store for outstanding warrants that had nothing to do with their activities occurring inside appellant’s store.

Appellee was paid by the hour by appellant and had no taxes withheld from his check. He did not receive any benefits from appellant as is standard for regular employees, and he did not use the time clock to clock in and out for the time he worked. Appellee’s work hours for appellant were scheduled by a fellow deputy rather than a member of appellant’s management.

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Brookshire Grocery Co. v. Morgan, 2017 Ark. App. 387, 525 S.W.3d 58, 2017 Ark. App. LEXIS 411 (Ark. Ct. App. 2017).

2017 Ark. App. 387 (Brookshire Grocery Co. v. Morgan) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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