Durham v. Prime Industrial Recruiters, Inc.

2014 Ark. App. 494, 442 S.W.3d 881, 2014 Ark. App. LEXIS 671
CourtCourt of Appeals of Arkansas
DecidedSeptember 24, 2014
DocketCV-14-54
StatusPublished
Cited by3 cases

This text of 2014 Ark. App. 494 (Durham v. Prime Industrial Recruiters, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Durham v. Prime Industrial Recruiters, Inc., 2014 Ark. App. 494, 442 S.W.3d 881, 2014 Ark. App. LEXIS 671 (Ark. Ct. App. 2014).

Opinion

DAVID M. GLOVER, Judge.

I,In this workers’ compensation case, the Commission affirmed and adopted the ALJ’s decision, which concluded that William Durham was jointly employed by both Elite Workforce (Elite) and Welspun Pipes (Welspun). Application of the dual-employment doctrine protects Welspun from tort liability under the exclusive-remedy provisions of the Workers’ Compensation Act. In this appeal, Durham contends that 1) the Commission’s finding that an implied contract of hire existed between him and Welspun was based upon circular logic, 2) ■ the Commission arbitrarily disregarded all of the documentary evidence obtained from Welspun regarding the relationship of the parties, and 3) the dissimilar treatment of Elite employees, as opposed to Welspun employees, refuted the implication of an implied contract between him and Welspun. We affirm the Commission.

I;Standard, of Review

In reviewing Commission decisions, we examine the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if the decision is supported by substantial evidence. Beaver v. Graphic Packaging, 2011 Ark. App. 524, 2011 WL 4067309. Substantial evidence exists only if reasonable minds could have reached the same conclusion without resorting to speculation or conjecture. Id. Although we give deference to the Commission on issues of weight of evidence and credibility of witnesses, the Commission may not arbitrarily disregard testimony and is not so insulated that it renders appellate review meaningless. 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 Commission’s conclusions. Id.

Applicability of Dual-Employment Doctrine

In National Union Fire Insurance v. Tri-State Iron & Metal, 328 Ark. 258, 261, 914 S.W.2d 301, 302 (1996), our supreme court described the dual-employment doctrine:

When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if
(a) The employee has made a contract for hire, express or implied, with the special employer;
(b) The work being done is essentially that of the special employer; and
(e) The special employer has the right to control the details of the work. The solution of almost every such case depends upon the answer to the basic, fundamental, and bedrock question of whether, as to the special employee, the relationship of employer and |,^employee existed at the time of the injury. Daniels v. Riley’s Health & Fitness Ctrs., 310 Ark. 756, 840 S.W.2d 177 (1992) (citing Charles v. Lincoln Constr’. Co., 235 Ark. 470, 361 S.W.2d 1 (1962); Stuyvesant Corp. v. Waterhouse, 74 So.2d 554 (Fla.1954)). If the facts show such a relationship, the existence of a general employer should not change or be allowed to confuse the solution of the problem. Id. Because both employers may each have some control there is nothing logically inconsistent, when using this test, in finding that a given worker is the servant of one employer for certain acts and the servant of another for other acts. Id. (citing Nepstad v. Lambert, 235 Minn. 1, 50 N.W.2d 614 (1951)). The crucial question is which employer had the right to control the particular act giving rise to the injury. Id. Because the question of liability is always raised in relation'to some specific act done, the important question is not whether the employee remains the servant of the general employer as to matters generally but whether, as to the act in question, he is acting in the business of and under the direction of one or the other. Id.

Background

Three persons testified at the hearing before the ALJ: William Durham, claimant;. Chris Rawlings, owner of Elite; and Martin Cain, health, safety, and environment director for Welspun. Their detailed testimony follows.

William Durham testified that when he was looking for a job in 2010, he completed an application for employment at Elite; that he completed' it at the Elite office, which is located on the Welspun property in a separate building; that he did not talk to anyone from Welspun when he filled out the application at Elite; and that he interviewed at the Elite office |4but did not interview with anyone from Welspun. He stated that he was eventually hired by Elite, and they told him he would be working at Welspun. He said he worked as a quality-control inspector in the inspection department at Welspun.

Durham explained that he started his job at the Welspun plant and that he was trained for a week or two by an Elite employee, who was also a temporary employee working at Welspun, to work the computers. He said that Elite provided the hard hats, ear plugs, goggles, and ,eye protection when he went to work at Wel-spun; that there were differences between the Elite and Welspun safety equipment worn by employees; that the Elite hard hats were orange and the Welspun hats were blue; that the ID badges were different; and that his ID badge indicated he was an Elite employee. He explained that he was paid by Elite every week, but Welspun employees were paid every two weeks, and that if he had a problem with his paycheck he would go to the Elite facility. He stated that he did not always get a lunch break when he worked at Welspun; that Welspun employees did get lunch breaks; and that Elite employees were not allowed to go to Welspun employee events.

Durham explained that Saleem Sawar was his supervisor and that Sawar was a Welspun employee. He said that Sawar called him into the office one morning and told him that if he did not miss any days from November until January, Sawar would hire him as a Welspun employee. He stated that it was his perception that he would have a better job and more pay as a Welspun employee. He said that in order to be hired by Welspun, he would have to go through the Welspun office, which was separate from the Elite office.

|fiDurham testified that on December 21, 2010, he reported to work at 7:00 p.m. and went to see Sawar to find out which station he was to work. He said that during his inspection of the pipes, a pipe came in behind him and “smashed” him. He stated that one of his co-workers, a panel operator, tried to hit the “e-stop” button and reverse the rollers; that nothing worked and the co-worker came down to try to help him; that he fell to the ground trying to reach up and grab the co-worker, but the pipes came back and “grabbed” the co-worker by the head; and that there was nothing he could do about it. Durham explained that he was taken to the hospital after the accident and that while he was there, he received a letter from Elite stating that Elite employees needed to come in and sign a waiver.

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Bluebook (online)
2014 Ark. App. 494, 442 S.W.3d 881, 2014 Ark. App. LEXIS 671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durham-v-prime-industrial-recruiters-inc-arkctapp-2014.