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Brookshire Grocery Co. v. Morgan

Court of Appeals of Arkansas, Division IV

June 21, 2017

BROOKSHIRE GROCERY COMPANY APPELLANT
v.
CLEON MORGAN, SR. APPELLEE

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G401760]

          PPGMR Law, PLLC, by: R. Scott Morgan and Patarick Feilke, for appellant.

         No response.

          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, 1956), completed his high school 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 County Sheriff's Department (Department) and is authorized to make arrests within Jefferson County. Appellee works from 8:00 a.m. to 5:00 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, appellee 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, appellee 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.

         After 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 appellee 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 ...


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