BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION JUAN PINEDA, EMPLOYEE CLAIMANT MANPOWER, INC., EMPLOYER RESPONDENT NO. 1

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G JUAN PINEDA, EMPLOYEE CLAIMANT MANPOWER, INC., EMPLOYER RESPONDENT NO. 1 NEW HAMPSHIRE INSURANCE COMPANY, INSURANCE CARRIER, TPA RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 WELSPUN PIPES, INC.,ET AL INTERVENORS OPINION FILED DECEMBER 22, 2015 A hearing was held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, in Little Rock, Pulaski County, Arkansas. Claimant was represented by Mr. Michael Boyd, Attorney at Law, Magnolia, Arkansas. Respondents no. 1 were represented by Mr. Michael Stiles, Attorney at Law, Little Rock, Arkansas. Respondent no. 2 was represented by Mr. David Pake, Attorney at Law, Little Rock, Arkansas. The Intervenors were represented by Mr. Phillip Brick and Mr. Guy Wade, Attorneys at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was held in this matter on October 14, 2015, in the above-styled claim, in Little Rock, Arkansas. A Prehearing Telephone Conference was conducted in this case on August 5, A Prehearing Order was entered in this claim on that same date. This Order set forth the stipulations offered by the 1

2 parties, the issues to be litigated, and their respective contentions. The following proposed stipulations were submitted by the parties, either pursuant to the Prehearing Order, or at the start of the hearing. The following stipulations are hereby accepted: 1. The Arkansas Workers Compensation Commission has exclusive and original jurisdiction to determine the facts in this matter, in order to determine whether we do or do not have jurisdiction. 2. The claimant sustained compensable injuries(back, right upper extremity, right arm, hips, lower extremities, legs, left knee, right ankle, and right foot, on February 6, A Joint Petition Order was entered by the Commission on July 25, 2013, among the claimant, respondents no. 1, and respondents no. 2, which became a final order on that date. 4. On May 14, 2014, Welspun Pipes, Inc. petitioned the Arkansas Workers Compensation for a hearing to determine whether the claimant was its employee. By agreement of the parties, the issues to be litigated at the hearing were as follows: 1. Employer status-whether Welspun is entitled to protection under the exclusive remedy provision of Ark. Code (a) and/or (b)(1). 2. Whether respondents no. 1 should be dismissed as a party. 2

3 However, at the beginning of the hearing, said Motion to Dismiss was respectfully denied. 3. Whether the Arkansas Workers Compensation Commission has jurisdiction to hear this matter. The claimant s, the respondents and the intervenors contentions are set out in their responses to the Prehearing Questionnaires. These are hereby incorporated herein by reference. At the time of the hearing, the parties offered additional contentions. These are set forth in the hearing transcript, and are hereby incorporated herein by reference. The documentary evidence submitted in this case consists of the hearing transcript of October 14, 2015, and the documents contained therein. In addition, the following documents have been made a part of the record: The Intervenors Post-hearing Brief, which was filed with the Commission on November 3, 2015, and Respondent No. 2 also filed a Brief on October 29, 29. These aforementioned documents have been blue-backed, and marked as Commission s Exhibit No. 2. The claimant filed an untimely Brief, which has not been made a part of the record. The following witness testified at the hearing: Martin Cain. DISCUSSION Mr. Martin Cain was called as a witness on behalf of the intervenors. At the time of the hearing, Mr. Cain was the only witness to give testimony. As of late, Mr. Cain worked for 3

4 Welspun, performing employment duties as HSE Director and manager of the facilities. In this position, he directed all of the safety and environmental issues of the organization/corporation and also all the facility s management. He has worked for Welspun approximately eight years. With respect to Welspun s relationship with Manpower, Mr. Cain testified that they were an employer that employed people and placed them in their plant. However, Mr. Cain further explained that they(welspun) managed these employees and gave them orientation, but Manpower s only role was to provide them with the people. He verified that Manpower is a temporary employment agency, that supplied temporary employee to Welspun. Mr. Cain verified that this relationship was in effect in January and February of According to Mr. Cain, Manpower screened and recommended employees to them. However, he essentially stated that Welspun worked and scheduled these employees time, days off, vacations, et cetera. Welspun also paid Manpower for the employee s services based on the hours that they worked plus, they paid additional fees for workers comp, vacation leave and holidays along with other benefits that the employees received. Mr. Cain testified that Manpower s office is located right next door to their administrative office. Upon being shown Intervenor s Exhibit No. 1, which is Exhibit A, Mr. Cain verified 4

5 that this was a copy of their staffing service agreement with Manpower. He verified that this was the agreement that Manpower and Wellspun operated under, and was in effect in February of Mr. Cain also verified that the claimant was assigned by Manpower to Welspun under this agreement. Upon further questioning, Mr. Cain testified that once Manpower supplied a temporary employee to Welspun, they sent them to their orientation program. Welspun would assign the employee to a job and a supervisor in various plants. According to Mr. Cain, the employees would also undergo a safety orientation, the same as they did with regular employees of Welspun. He testified that Welspun also trained those employees. Specifically, Mr. Cain testified: Q. Did they decide the jobs that those employees would perform? Q. Did they provide those employees with equipment? Q. Would they set the shifts for those employees? Q. Did they set the hours for those employees? Q. Could Wellspun [sic] discipline those employees? Q. Could Wellspun [sic] have those employees 5

6 terminated? Next, Mr. Cain was shown an Exhibit B, which is an orientation sheet that all employees go through and have to sign off on representing that they were present and understand. He agreed that this is a program that Welspun performs. Mr. Tim Gibson is one of their safety engineers, but they have different safety engineers that do their orientation. He admitted that the claimant was identified as an attendant or participant of that program, and his name and signature are on this orientation sheet. However, Mr. Cain explained that Mr. Gibson is a full-time Welspun employee. Mr. Cain explained: Q. All the work that s done by the Manpower employees that are assigned to work at Wellspun[sic], is that all work done for Wellspun[sic]? Q. And Wellspun[sic] has the right to control those employees work? Q. Did Manpower train those employees? A. No. Q. Did Manpower have any supervision in the plant -- A. No. Q. -- the Wellspun[sic] plant? A. No. 6

7 Q. Are you familiar with Mr. Juan Pineda? A. Vaguely, yes. It s been quite a while. Q. Was he a temporary Manpower employee that was assigned to work at Wellspun [sic]? Q. He was hired by Manpower? Q. But then he went to work at the Wellspun[sic] plant? A. That s correct. Q. What did Mr. Pineda do at the plant? A. He worked on the -- in the coding plant on the vinyl table, inspecting pipes. Q. And all the work that he did at the Wellspun[sic] plant, that was work for Wellspun[sic]? A. Correct. Mr. Cain admitted that the claimant s supervisor at Welspun was a full-time salaried Welspun employee. He agreed that the claimant s supervisor could determine what job the claimant performed. The claimant s supervisor could determine the equipment that he used to perform his employment duties. His supervisor also made sure that the claimant was trained for his position, and he determined the shift for the claimant. According to Mr. Cain, the claimant s supervisor would set the days and hours that the claimant worked. He stated that Saleem Sawar was a quality manager/supervisor 7

8 for the coding plant at that time. Mr. Cain verified that Mr. Sawar was a full-time salaried Welspun employee. According to Mr. Cain, Debasish Bhowmick was an employee of Welspun. He was the plant manager and vice president. Mr. Cain verified that there are two Welspun companies. They are Welspun Tubular and Welspun Pipes. However, Mr. Cain testified that they are the same company, they just go by different names. He went on to explain that the reason is that one of them started out one way and then they had to change the name, but it is the same company. He denied that there is no difference between the two. According to Mr. Cain, they are the same facility, same management, same everything, and same company. was paid: Mr. Cain gave the following explanation of how the claimant A. All the employees were paid hourly and what would be -- happen would -- that Manpower would fill out an invoice for the hours and then, of course, their benefits levels and all, insurance and all and were submitted to us on a routine basis and we would pay them. Q. So Wellspun[sic] would pay Manpower based on the hours that Mr. Pineda worked? A. That s correct. Q. And how did Manpower keep up with the hours that Mr. Pineda worked? A. We have a clocking system and all employees -- it didn t matter if it was Manpower or Wellspun[sic] or 8

9 what, they all clock in and out on the same system. Q. So Mr. Pineda clocked in on the same system that full time employees of Welspun -- A. On the same system, correct. Q. So Mr. Pineda would clock in and clock out at Wellspun[sic]? Q. Did Manpower pay a premium on those hourly rates? Q. And what was that premium paid for? A. Well, one thing was their workers comp insurance that we reimbursed them for. Of course, their holidays, I know they had holidays and vacation and insurance so we paid a -- besides what the employees rate was, we paid all their overhead, plus their -- I m sure they had a profit in there, too. So -- or they wouldn t have stayed in business. Q. So part of the premium that was paid to Manpower was used to secure the workers compensation coverage for those employees. A. That s correct. Q. And it also helped -- did it also help for -- as part of that premium, was it also understood that Manpower would handle workers compensation claims for those employees? Mr. Cain verified that Welspun ensured that those employees from Manpower were covered under a workers compensation policy because they gave them a certificate of insurance so that they could prove that they had the insurance policy. According to Mr. Cain, this was required in their contract. 9

10 He admitted that he recalled the claimant being injured on February 6, He admitted that on that day, the claimant came to work for Welspun, and was on the premises of Welspun when he was injured. Mr. Cain verified that the claimant was being supervised by Welspun at that time. He denied that there were any Manpower supervisors present in the plant during this period of time. On cross-examination, Mr. Cain testified that his title is Health Safety Environment (HSE) Director and Facilities Manager. This is the position that Mr. Cain held back in He admitted that he previously identified the staffing services on direct examination. According to Mr. Cain, the first time he saw the staffing services agreement was either the first of the year or the end of However, he was not exactly sure about this because it has been a long time ago. Mr. Cain admitted that this is the only agreement that he is aware of between Manpower and Welspun Pipes, Inc. When Mr. Cain was asked if he was aware of any agreement between ManPower and Welspun Tubular, LLC, he replied, They re both the same and they would have both applied in that case. He agreed that he was shown what was identified as a staffing service agreement that involved Manpower, Inc., a Wisconsin Corporation. Mr. Cain admitted the name of the company identified as the client is Welspun Pipes, Incorporated, which is 10

11 a corporation. Under further cross examination, Mr. Cain testified: Q. Okay. Now, if you ll flip for me, keep that document, flip for me toward the back, let s see, it will be page 5, there you go, you had it, page 5. That s the signature page, and the client s identified as whom? A. I don t remember who signed that. Q. No, no. Who is the client, the typed name of the company? A. Wellspun Pipe. Q. Wellspun Pipe s what? A. Wellspun Pipe, Inc., client. Q. Okay. You d agree with me Wellspun Tubular, LLC is not on this contract. A. I agree. Q. And you don t know of any other contract that includes Welspun Tubular, LLC, do you? A. No. But it s the same corporation. Upon being asked about his paychecks, Mr. Cain testified that his checks are from Welspun. He denied that his checks are from Welspun Tubular or Welspun Pipes. Mr. Cain specifically testified that there is only corporation. Upon being asked how the corporation is listed with the Secretary of State, Mr. Cain testified that their attorneys looked and there is only one corporation. Mr. Cain essentially stated that at first, there was one named one thing and then they changed their mind and changed it to a LLC. However, Mr. Cain admitted that he does not 11

12 know all of the details. Mr. Cain explained: Q. Okay. And so have you been involved in management executive decisions about the corporate structure? A. I am a staff member and I report directly to the president of the company. Q. So can you tell us exactly when Wellspun[sic] Pipes, Inc. was formed? A. I think Wellspun[sic] Pipe was formed when we first started in I would have to look. I believe it was in Q. So are you telling us now that it s been shifted to a different company, Wellspun Tubular, LLC? A. Same company, just changed the name. Q. When did Wellspun[sic] Tubular Pipes, Inc. or Wellspun Pipes, Inc. change its name to Wellspun[sic] Tubular, LLC? A. It s a little bit unfair to ask me that. I don t have the data in front of me. Q. I m just asking if you can give us a general idea of when that happened. A. I cannot remember. Q. But you think that s what occurred? A. I know it occurred. I just don t remember exactly when. Q. How do you know that it occurred? A. Because it was -- we discussed it in a meeting and it was because we took investors in India to the corporation, which I was a major investor -- an international investment company. That s when it changed. Q. Okay. Would that have been before 2010? 12

13 A. No. No. Q. It would have been after 2010? A. I cannot answer that because I don t have that information in front of me. Q. Am I correct that Wellspun[sic] Pipes, Inc. was the original corporation and then you say it changed into Wellspun[sic] Tubular, LLC; is that right? A. I would want to check my data on the dates of when this all occurred. Q. I m not asking about dates. I m trying to make sure I got the order correct. Was it first Wellspun [sic] Pipes, Inc. and then changed to Wellspun [sic] Tubular, LLC, or was it first Wellspun Tubular, LLC and then changed to Wellspun Pipes, Inc.? A. I would have to have that information in front of me. I can t answer that question for you. I m sure our attorneys can provide that information to the attorneys. He admitted that Welspun provided the claimant with the equipment that he needed to do the work. Mr. Cain further testified that they trained the individuals, under whatever title Welspun was in They also provided the training for all other employees that were involved in the incident that resulted in the claimant being injured. Mr. Cain verified that he undertook the responsibility to train all of those employees. Mr. Cain denied that Manpower trained his people(the aforementioned employees). However, he admitted that Manpower provided them with paychecks. Mr. Cain further agreed that under their staffing services agreement with Manpower, they paid the workers compensation insurance on these employees. 13

14 With respect to the staffing services agreement(page number 3, paragraph number 7), which has been made a part of the record, Mr. Cain agreed that the first sentence under extent of coverage provided to client, the insurance described in this section is solely for the benefit of Manpower. He further agreed that Manpower had the sole right to use this insurance. Mr. Cain also agreed that according to this contract, Welspun paid a premium to Manpower of 1.60 percent. Under further questioning, Mr. Cain testified: Q. All right. Fair enough. Flip for me to Exhibit B. And that s page 8. And when I say Exhibit B, I m sorry, I mean, Exhibit B to the staffing services agreement and that s under the Bates stamp of Wellspun a lot of zeros and the number eight. Do you have it there? A. I m looking. Q. It s just two more pages past where you were. A. Well, this says three or four. Hold on. Q. I know. Bottom right hand corner has a Bates number for you. A. It s three of four. Q. Does that -- Q. -- does that say Exhibit B at the top? Does that say Exhibit B at the top? Q. And you understand this to be Exhibit B to the staffing services agreement? 14

15 Q. And this particular page, isn t this a schedule for how Wellspun[sic] Pipes, Inc. was paying Manpower for staffing services? Q. And the rates are described here for industrial positions and clerical positions, right? Q. And so am I correct that Wellspun[sic] Pipes, Inc. was paying Manpower a markup premium of 35 percent for industrial positions? Q. And was Mr. Juan Pineda considered to be in a industrial position? Q. Do you see anywhere on this page where Wellspun[sic] Pipes, Inc. was paying for any workers compensation insurance? A. No. Mr. Cain testified that at the time of the claimant s incident, Saleem Sawar was his supervisor. He further testified that at the time of his injury, the claimant was hit by a pipe. Mr. Cain testified that the person moving this pipe was also an employee of Welspun Pipes, dual or otherwise. This person was also trained by Welspun Pipes. Regarding workers compensation insurance, Mr. Cain testified: Q. Would you agree with me that Wellspun[sic] Pipes, Inc. did not have its own workers compensation 15

16 insurance for Mr. Juan Pineda back in 2010 when he was injured? We do through Manpower. Q. Did not have its own policy covering Mr. Pineda, did it? A. No. Q. Would you agree with me that neither Wellspun[sic] Pipes, Inc. or Wellspun[sic] Tubular, LLC paid any workers compensation benefits to Mr. Pineda as a result of his injury on the job in 2010? A. No. Q. Let me rephrase that because I think that came out wrong. Did Wellspun Pipes, Inc. or Wellspun Tubular, LLC pay any workers compensation benefits to Mr. Juan Pineda as a result of his on-the-job injury in 2010 at Wellspun[sic] facility? A. No. Q. That s what I thought, but I think I phrased the question wrong. And you said the way that you checked to see if there was workers compensation through Manpower is that they provided you a policy one time a year? A. They gave us a certificate of insurance one time a year when their policy was renewed. Q. When was that? When did their policy renew? A. I don t remember. Q. Who did they give it to? A. To me and also the management. Q. So would you have kept that in your files? A. Probably not that long, you know, since Manpower - - we don t have Manpower there and hadn t in several years now, would have five years, it would have been probably filed away somewhere. I don t have it. 16

17 On redirect examination, Mr. Cain verified that according to Exhibit A, on page 1, under the duties of Manpower, subsection A, in that provision of the staffing agreement, Manpower agreed to handle unemployment and worker s compensation claims involving these assigned employee. The claimant s Oral Deposition was taken on May 7, His date of birth is May 7, The claimant is a high school graduate, with some other schooling at the university in Guatemala. He now lives in Houston, Texas. The claimant moved there after leaving Arkansas some five years ago. While living in Arkansas, the claimant first worked for a company that makes metal beams for bridges. The claimant has also previously worked for a temporary agency in Mississippi. Of late, the claimant was running a small business buying and selling cars with his wife, out of their home. Regarding his employment with Welspun, the claimant admitted that he was involved in an accident on February 6, His accident occurred about one week after he went to work for Manpower. The claimant learned of a job possibility with Manpower through a friend. According to the claimant, it was his understanding that he would be working at Welspun making pipes. The claimant testified that he went to fill out an application at Welspun. However, he admitted that he understood that if he was employed with Manpower, he would be working at 17

18 Welspun. Next, the claimant testified that he went to the Manpower facility and filled out an application. It took about two weeks for him to be hired. According to the claimant, Manpower also did some testing to determine the position he would be eligible for. After two weeks or so, the claimant received a phone call telling he had been hired. The claimant essentially testified that he underwent a drug screen at the main office of Manpower, in Little Rock. The claimant testified that both Welspun and Manpower did training on OSHA and other safety. According to the claimant, he also did some training at Welspun about its plant facility. He admitted that he received training from Welspun on the first day that he was hired. His job title was crew chief. The claimant verified that his supervisor was a Welspun employee. While working for Welspun, the claimant stated that he never really worked one real job. According to the claimant, Welspun management moved him to different positions throughout the plant. However, every day that the claimant worked, he went to the Welspun plant, where he was assigned to a certain job there. He verified that every day, he went directly to work at the Welspun plant. The claimant specifically testified that he punched his card, and went looking for his supervisor. He stated that he would pick up his check at the Manpower building. The claimant 18

19 denied that there was any other reason why he would go back to the Manpower building after he started working at Welspun. He testified that his schedule was for two weeks during the daytime and two weeks during the nighttime. The claimant worked twelve hours and sometimes worked seven days a week. He admitted that he worked at Welspun for about a total of four weeks. According to the claimant, he missed a couple of days due to snow. Under further questioning, he agreed that every day that he worked, Welspun told him the days that he was going to work and the job that he was going to perform each day. The claimant admitted that all the work he performed at Welspun was all a part of manufacturing of pipes. He stated that all the tools that he used to perform work at Welspun was provided by them. The claimant denied that there was anyone there from Manpower to tell him what to do. He agreed that only Welspun controlled every detail of the work that he performed at Welspun. The claimant testified that a Welspun employee told him after he completed his days with Manpower, they were going to hire him full-time at some point. He essentially admitted that he was told by a couple of other employees at Manpower that they wanted to hire him as a full-time employee. Under further questioning, the claimant verified it was his understanding that Welspun could discipline him. The claimant agreed that after he started at the Welspun plant, he never went 19

20 back to Manpower, except to pick up his check. According to the claimant, he did not see any difference between full-time Welspun employees and temporary Welspun employees. The claimant specifically stated he had to wear a hard-hat, glasses, gloves and earplugs, which were all supplied by Welspun. However, the claimant testified that he had to purchase his own safety boots. The claimant essentially stated that the Welspun plant management provided him with an identification card that he used to get into the plant. According to the claimant, this identification card had Welspun written on it. On the day of the incident, the claimant arrived for his daytime shift at 6:00 o clock in the morning. He went directly to his the Welspun supervisor and was told what job to do that day, which was in the shipping area. The claimant testified that his accident happened while he was working with the people in the shipping area. His accident occurred about two hours after he got there, and he was under the direction and control of Welpun at the time of his injury. The claimant gave a brief description of how his injury occurred. He denied that he clocked out when his accidental injury occurred. He admitted that he was performing work for Welspun when the accident occurred. The claimant admitted that he received workers compensation benefits from the accident. An affidavit of Snehal Patel was made a part of the record. 20

21 It appears that this affidavit was provided to the Circuit Court of Pulaski County, Civil Division. In this affidavit, Mr. Patel affirms that he holds the position of Coating Plant Manager, with Welspun Pipes, Incorporated, and has held that position since September of Mr. Patel states that he is personally familiar with the claimant and that he was furnished to Welspun by Manpower. He further states that the claimant was working full-time at the Arkansas Welspun facility on February 6, 2010, as a quality inspector. At that time, the claimant worked for Welspun checking and marking pipes. He also stated that on February 6, 2010, Welspun exercised the right to control the performance of his work. In an Order dated May 12, 2014 relating to the case at bar, Honorable Timothy Davis Fox (in the Circuit Court of Pulaski County, Arkansas) granted the defendants Renewed Motion for Leave to Seek Employment Determination from the Arkansas s Workers Compensation Commission. Hence, Judge Fox specifically stated that this leave was granted in this matter for the Commission to make a determination of whether the Defendants/intervenors were the plaintiff s/claimant s employer at the time of the subject accident and whether the Defendants are therefore immune from suit. ADJUDICATION A. Jurisdiction 21

22 The first issue for determination is whether the Arkansas Workers Compensation Commission has jurisdiction over this matter to determine the claimant s employment status with Welspun. Here, in early 2010, the claimant learned of potential employment with Manpower(a temporary employment agency) through a friend. The evidence demonstrates that the claimant was hired by Manpower in January of He underwent some orientation with them, but was ultimately assigned to work at the Welspun plant. Subsequently, the claimant also underwent company orientation at the Welspun plant. Thereafter, the claimant reported to the Welspun plant and they directed and supervised all of the claimant s employment duties. On February 6, 2010, the claimant sustained compensable injuries on the premises of the Welspun plant. He has undergone several surgical procedures for these accidental injuries. On February 1, 2013, the claimant filed a lawsuit against Welspun in the Circuit Court of Pulaski County, Arkansas. Welspun filed an answer wherein they denied all liability. However, a Joint Petition Settlement Order was entered by the Commission on July 25, 2013, among the claimant, respondents no. 1, and respondents no. 2, in this matter regarding the claimant s workers compensation claim. The claimant received a sum of $275,000.00, and the claimant s attorney was paid a fee of 22

23 $68, This settlement related to the claimant s accidental injury of February 6, Welspun was not made a party to this Joint Petition Settlement, nor did Welspun receive any form of notice on the Joint Petition Settlement, or of the hearing itself. Subsequently, on May 12, 2014, the circuit court granted Welspun leave to seek a determination from the Commission as to whether Welspun(Defendants, now intervenors) was the claimant s employer at the time of the subject accident and whether they are immune from suit. Therefore, on May 14, 2014, Welspun Pipes, Inc. et al, petitioned the Arkansas Workers Compensation for a hearing to determine whether the claimant was its employee. The claimant has asserted that upon the entering of the Joint Petition for Settlement Order, the Commission lost jurisdiction of this matter. However, I am not persuaded that this joint petition settlement deprived the Commission of jurisdiction to determine whether an employee-employer relationship exists between the claimant and Welspun, since Welspun was not a party to this joint petition settlement and because the Commission has exclusive, original jurisdiction to determine said employee-employer relationship. Under these circumstances, I find that the Arkansas Workers Compensation Commission has exclusive, original jurisdiction pursuant to to determine the facts that establish 23

24 whether an employee-employer relationship existed between the claimant and Welspun. Of note, the finality of a joint petition settlement is viewed from the claimant s standpoint; and it is the claimant s right to proceed further that is extinguished. Stratton v. Death & Permanent Total Disability Trust Fund, 28 Ark. App.86, 770 S.W. 2d 678 (1989). B. The Dual Employment Doctrine When a general employer lends an employee to a special employer, the special employer becomes liable for worker s compensation only if: (a) (b) (c) The employee has made a contract for hire, express or implied, with the special employer; The work being done is essentially that of the special employer; and The special employer has the right to control the details of the work. When all three of the above requirements are satisfied in relation to both employers, both employers are liable for workmen s compensation. Daniels v. Riley s Health and Fitness Centers,310 Ark. 756, 840 S.W. 2d 177 (1992). The crucial issue for adjudication in this matter is whether the claimant was a special employee of Welspun. Here, the claimant sustained admittedly compensable injuries on February 6, 2010, while performing employment duties at the Welspun plant, as a quality inspector. The claimant sustained injuries to his back, right upper extremity, right arm, hips, lower extremities, 24

25 legs, left knee, right ankle and right foot arising out of and in the course of his employment on the premises of Welspun. Following the claimant s compensable incident, respondents no. 1, accepted the claim as compensable and immediately began paying medical benefits and temporary total disability indemnity benefits. In fact, the claimant has undergone several surgical procedures, which were paid by respondents no. 1. Subsequently, a settlement agreement was reached with the claimant, respondents no. 1 and respondent no. 2. Therefore, a Joint Petition Order was entered by the Commission on July 25, 2013, among the claimant, respondents no. 1, and respondents no. 2, which became a final order on that date. At issue now is whether Welspun, is protected by the exclusive remedy provisions of the Arkansas Workers Compensation Act. On the basis of the record as a whole, and after reviewing the evidence in this case impartially, without giving the benefit of the doubt to either party, I find that Welspun was a special employer, and entitled to the protection of the exclusive remedy provision of the Arkansas Workers Compensation Act. Hence, I am persuaded that the claimant was a temporary employee of Welspun. Specifically, in the present matter, it is undisputed that in January of 2010, the claimant was employed by Manpower, a temporary employment service agency. It was through the agency 25

26 employment service of Manpower that the claimant came to work for Welspun. Pursuant to this assignment, Welspun exercised the right of complete authority over the work being performed by the claimant. Specifically, Welspun made the decisions as to when the claimant came to work, how much he was paid, and managed every aspect of the claimant s employment duties. In fact, the claimant s compensable injury occurred while he was performing these job duties on the premises of Welspun s plant. Once the claimant was assigned to work for Welspun, Manpower s primary function was to process the claimant s paycheck. Ultimately, under their agreement, Welspun paid Manpower for the claimant s services. Manpower never gave the claimant directives of when or how to perform his work while on the Welspun premises. The claimant s deposition testimony demonstrates that Welspun provided him with a hard-hat, glasses, gloves and earplugs. Welspun also trained the claimant. The evidence shows that the claimant had worked at Welspun for approximately four weeks at the time of his compensable incident. The claimant also testified that a Welspun supervisor told him that once he completed his days Manpower they would hire him as a full-time employee at some point. After being assigned to work at Manpower, the claimant denied that there was anyone from Manpower on the premises giving him any instructions or supervision of his employment duties with Welspun. His testimony demonstrates that every aspect of the 26

27 claimant s work, pay, vacation leave, and shifts were controlled by Welspun. Mr. Cain corroborated the claimant s deposition testimony, in this regard. Therefore, based on all of the foregoing evidence, I find that the claimant made an implied contract of hire with Welspun thereby making him a temporary employee of Welspun. With respect to the next requirement, both the claimant(per his deposition testimony) and Mr. Cain testified that the work being done by claimant at the time of his compensable accident was that of Welspun, on their premises. Hence, the claimant was performing employment duties of that of a quality inspector for Welspun when his accident occurred. The evidence before me shows that Welspun had the right to control every aspect and the details of the claimant s work, which directly related to Welspun s manufacture and inspection of pipes. I therefore find that the claimant was performing work of the special employer, Welspun, when the accident occurred. The hearing testimony and the deposition testimony demonstrate that Welspun supervised and directed the claimant s work on its premises. The claimant even clocked-in for work at Welspun, and once he was assigned to the Welspun plant, the only contact that the claimant had with Manpower was to pick up his check. If needed, it was a Welspun employee who could have terminated, disciplined, or had the claimant removed from the 27

28 premises. Under these circumstances, I find that Welspun had the right to control the claimant s work. Because all of the three requirements have been met, I find that the dual employment doctrine applies, and that Welspun is insulated from tort liability under the exclusive remedy provision of the Arkansas Workers Compensation Act. Hence, I further find that the claimant was jointly employed by Manpower and Welspun when his accident occurred. I realize the claimant attempted to make a distinction between Welspun Pipes and Welspun Tibular; however, he failed to present any evidence whatsoever demonstrating that these two entities are not one of the same. Mr. Cain denied that they were separate and distinct entities at the time of the claimant s compensable injury (see full discussion above). Given the foregoing, I unable to find that two separate and distinct entities existed at the time of the claimant s accident. FINDINGS OF FACTS AND CONCLUSIONS OF LAW On the basis of the record as a whole, I make the following findings of fact and conclusions of law in accordance with Ark. Code Ann The Arkansas Workers Compensation Commission has jurisdiction of the within claim. 2. The proposed stipulations set forth above are hereby accepted as fact. 3. That Welspun is protected by the exclusive-remedy provision of Ark. Code Ann That 28

29 the dual employment doctrine applies in this matter, thereby resulting in the claimant being jointly employed by Welspun and Manpower at the time of his compensable accident of February 6, ORDER Welspun is protected by the exclusive remedy provision of the Arkansas Workers Compensation Act, as provided in Ark. Code Ann As a result, Welspun is therefore insulated from tort liability. IT IS SO ORDERED. CB/dr CHANDRA L. BLACK Administrative Law Judge 29