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Estate of Bogar v. Welspun Pipes, Inc.

Court of Appeals of Arkansas, Division II

October 8, 2014

ESTATE OF FREDERICK BOGAR (DECEASED), APPELLANT
v.
WELSPUN PIPES, INC., APPELLEE

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION. NO. G11081.

Paul Byrd Law Firm, PLLC, by: Paul Byrd; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

Friday, Eldredge & Clark, LLP, by: James M. Simpson, Guy Alton Wade, and Phillip M. Brick, Jr., for appellee.

JOHN MAUZY PITTMAN, Judge. WALMSLEY and HIXSON, JJ., agree.

OPINION

Page 406

JOHN MAUZY PITTMAN, Judge.

Appellant appeals from the Arkansas Workers' Compensation Commission's decision that appellant's decedent, Frederick Bogar, was jointly employed by Welspun Pipes, Inc., and Prime Industrial Recruiters (a/k/a Elite Services) at the time of his injury and death, thus entitling Welspun to protection from a tort suit for wrongful death. Also injured in this accident was Mr. Bogar's co-worker, William Durham. Mr. Durham's appeal, involving issues that are essentially identical to those presented herein, was disposed of in a companion case, Durham v. Prime Industrial Recruiters, Inc., 2014 Ark.App. 494, 442 S.W.3d 881.

The dual-employment doctrine was explained in the Arkansas Supreme Court case of Daniels v. Riley's Health & Fitness Centers, 310 Ark. 756, 840 S.W.2d 177 (1992), as follows. Citing Charles v. Lincoln Construction Co., 235 Ark. 470, 361 S.W.2d 1 (1962), and 1C Arthur Larson, The Law of Workmen's Compensation § 48.00 (1962), the court held that, when a general employer lends an employee to a special employer, the special employer becomes liable for workers' 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 (c) the special employer has the right to control the details of the work. Daniels, supra. When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workers' compensation. Id. The Daniels court also said:

[T]he solution of almost every such case finally depends upon the answer to the basic, fundamental and bedrock question of whether as to the special employees the relationship of employer and employee existed at the time of the injury. If the facts show such relationship, the existence of a general employer should not change or be allowed to confuse the solution of the problem.

Id. at 759-60, 840 S.W.2d at 178 (quoting Stuyvesant Corp. v. Waterhouse, 74 So.2d 554 (Fla. 1954)).

The sole issue presented in this appeal is whether the Commission erred in finding that there was an implied contract for hire between Welspun and appellant's decedent. Appellant argues that the Commission's finding of such an implied contract was erroneous because (1) the Commission employed an erroneous standard in determining whether such an implied contract existed; and (2) the Commission " arbitrarily

Page 407

ignored" evidence favorable to appellant.

Appellant first asserts that the Commission erroneously conflated the elements of dual employment, finding that (a) there was an implied contract for hire with Welspun solely because (b) the work being done was essentially Welspun's and (c) Welspun had the right to control the details of the work. This is an oversimplification of the Commission's findings and is without merit. The existence of an implied contract for hire is a fact question to be determined based on the totality of the circumstances surrounding the relationship of Welspun and appellant's decedent. Dixon v. Salvation Army, 86 Ark.App. 132, 160 S.W.3d 723 (2004) (citing Schneider v. Salvation Army, 217 Minn. 448, 14 N.W.2d 467 (Minn. 1944) (totality test); Arkansas State Police v. Davis, 45 Ark.App. 40, 870 S.W.2d 408 (1994) (fact question)). The Commission's opinion did not merely consider that the work ...


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