Estate of Bogar v. Welspun Pipes, Inc. , 2014 Ark. App. LEXIS 736 ( 2014 )

Cite as 2014 Ark. App. 536
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-14-110
Opinion Delivered October 8, 2014
ESTATE OF FREDERICK BOGAR
(DECEASED)
APPELLANT APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION [NO. G11081]
WELSPUN PIPES, INC.
APPELLEE AFFIRMED
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, ___ S.W.3d ___.
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
Cite as 2014 Ark. App. 536
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 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
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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, 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 being done at the time of the injury was
Welspun’s and that Welspun had the right to control the details of the work; instead, it clearly
analyzed the issue based on the totality of the circumstances concerning the relationship:
The undisputed testimony in this case indicates that Elite Services recruits
employees for Welspun. However, once the employees go to work at the Welspun
facility, Welspun dictates the hours they work, sets their rate of pay, can discipline the
individuals and can terminate the individuals. Once Elite Services hires and supplies
an employee to Welspun, Elite Services’ primary function is to process payroll.
Because Elite Services has an exclusive market contract with Welspun in Little Rock,
if Welspun fires an Elite Services employee, that employee has nowhere else to go
with Elite Services. This examiner can think of no greater indications of an implied
employment contract than the ability to determine a worker’s weekly hours, his rate
of pay, his discipline, and his termination, combined with the right to control the work
being performed.
(Emphasis added.) Here, the Commission considered not only the right to control the work
but also the relationship between the general and special employers; the role of the general
employer after supplying an employee to the special employer; the nature of the market
contract between the general and special employers; and the effect of that market contract
upon an employee’s prospects for continued employment with the general employer if
terminated by the special employer. In the following paragraph, the Commission recited that
another employee injured in the accident, Mr. Durham, testified that:
[H]e understood that if he was hired by Elite Services that he would be working in the
Welspun plant because Elite Services only supplied employees to the Welspun plant.
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Mr. Durham also understood that Welspun could fire him. Mr. Durham felt like he
was more of an Elite Services employee, but that he was also a Welspun employee.
Noting that the parties had stipulated that the facts testified to by Mr. Durham also applied
to the situation involving appellant’s decedent, the Commission considered Mr. Durham’s
testimony together with all of the evidence recited above in finding that an implied contract
for hire existed.
We cannot say, on this record, that the Commission employed an erroneous standard
by failing to consider the totality of the circumstances concerning the relationship between
appellant’s decedent and Welspun in finding that there was an implied contract for hire. Nor
can we say that evidence of mutual assent or obligations was lacking or that the Commission
failed to consider these elements. Assent to the terms of the employment by Welspun is to
be found in Mr. Durham’s testimony. Mutuality of contract simply means that an obligation
must rest on each party to do or permit to be done something in consideration of the act or
promise of the other; thus, neither party is bound unless both are bound. Tyson Foods, Inc.
v. Archer, 356 Ark. 136, 147 S.W.3d 681 (2004). Consideration is any benefit conferred or
agreed to be conferred upon a promisor to which he is not lawfully entitled, or any prejudice
suffered or agreed to be suffered by a promisor other than such as he is lawfully bound to
suffer. McIlroy Bank & Trust Co. v. Comstock, 13 Ark. App. 13, 678 S.W.2d 782 (1984).
Here, mutual obligation is to be found in the evidence, also recited by the Commission, that
Welspun reimbursed Elite Services for payments made by Elite to employees for work
performed at Welspun: the decedent’s obligation to perform work for Welspun was balanced
against the obligation of Welspun to provide reimbursements for Elite’s payments for that
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work. We hold that the findings underlying the determination of an implied contract for hire
are supported by substantial evidence.
Next, appellant argues that the Commission erred by arbitrarily regarding “dispositive
evidence” in the form of documents evincing the agreement between Welspun and Elite, and
evidence that Elite employees were treated differently than Welspun employees. We do not
agree that this evidence was either arbitrarily disregarded or dispositive. Although it is true
that the Commission may not arbitrarily disregard evidence, the Commission’s failure to
specifically discuss conflicting evidence does not mean that it was arbitrarily disregarded where
there is substantial evidence to support its decision, Raulston v. Waste Management, Inc., 2012
Ark. App. 272, 411 S.W.3d 711, and we have already held that the finding of an implied
contract for hire is supported by substantial evidence. Furthermore, even if the Commission
had been persuaded by the evidence that appellant mentions to find that Bogar was an Elite
employee, this would not preclude a finding that Welspun was a special employer. See
National Union Fire Insurancev. Tri-State Iron & Metal, 323 Ark. 258, 914 S.W.2d 301 (1996).
Affirmed.
WALMSLEY and HIXSON, JJ., agree.
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.
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