UNION LIGHT & POWER v. DC DEPT. OF EMPLOY., 00-AA-589.

• Citation: 796 A.2d 665
• Decision Date: 25 April 2002
• Docket Number: No. 00-AA-589.,00-AA-589.
• Parties: UNION LIGHT & POWER COMPANY, et al., Petitioners, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. Elrich Contracting, Inc., et al., Intervenors. Dale Glasby, Intervenor.
• Court: D.C. Court of Appeals

796 A.2d 665

UNION LIGHT & POWER COMPANY, et al., Petitioners, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

Elrich Contracting, Inc., et al., Intervenors.

Dale Glasby, Intervenor.

No. 00-AA-589.

District of Columbia Court of Appeals.

Argued December 17, 2001.

Decided April 25, 2002.

Jeffrey W. Ochsman, with whom Alan D. Sundburg, Washington, DC, was on the brief, for petitioners.

Amy L. Epstein for intervenors Elrich Contracting, Inc., et al.

Daniel S. Roth, with whom Kurt Berlin Washington, DC, was on the brief, for intervenor Dale Glasby.

Robert Rigsby, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, with whom William J. Earl, Assistant Corporation Counsel, filed a statement in lieu of brief, for respondent.

Before STEADMAN, REID and GLICKMAN, Associate Judges.

REID, Associate Judge.

Union Light & Power Company and its insurance company ("Union Light") filed a petition for review of a decision of the Director of the District of Columbia Department of Employment Services ("DOES") affirming the compensation order of a DOES hearing examiner. The hearing examiner determined that Union Light was solely liable for the death benefits paid to a widow of a deceased Union Light employee. Union Light challenges the DOES decision, claiming that at the time of his death, the decedent was either a borrowed or a joint employee under workers' compensation law, and hence, either Elrich Contracting, Inc. ("Elrich") was solely liable for the compensation award, or both Union Light and Elrich were jointly liable. We affirm the Director's decision that at the time of his accident, the decedent was performing "a voluntary act which arose out of and in the course of his employment with Union Light," and that there was no express or implied contractual arrangement establishing that he was either a special or borrowed employee of Elrich, or a joint employee of both Elrich and Union Light.

FACTUAL SUMMARY

The factual findings of the DOES hearing examiner and the testimony presented at a DOES hearing show that in this case, the decedent, Nolan Glasby, fell to his death from the fourth floor of Building 59 at the Naval Research Laboratory ("Naval Laboratory") in the District of Columbia. At the time of his death, Mr. Glasby was an electrician and employee of Union Light, an electrical subcontractor of Elrich; Mr. Glasby had been employed by Union Light as a foreman "for over thirty years." Elrich had a contract to renovate the third and fourth floors of the Naval Laboratory, and to perform other duties. Although "[i]t was common practice for employees of Elrich and Union Light to assist one another as needed[,]" Mr. Glasby was paid only by Union Light. He worked the 6:00 a.m. to 2:30 p.m. shift.

On the afternoon of January 8, 1997, around 2 p.m., Mr. Glasby called in his time to the owner of Union Light; payroll records show that he worked eight hours on that day. He then "volunteered to assist [Elrich's project superintendent] in taking down a mechanical lifting device (winch) from the roof."¹ Elrich's project superintendent decided to accept Mr. Glasby's offer of help. He went to the roof of the building "to unhook the pulley" and to lower the winch to Mr. Glasby. Mr. Glasby stood at a "wall opening [which] was not protected with a guardrail." After calling out instructions to Mr. Glasby, the project director "stepped out on the parapet wall extending from the roof to finish unhooking the winch[,] . . . looked down and saw Mr. Glasby falling."² Mr. Glasby died as a result of his fall.

Subsequently, Mr. Glasby's widow, Dale M. Glasby, filed a claim for benefits under the District of Columbia Workers' Compensation Act of 1979 ("the Act"), D.C.Code § 36-301-345 (1997), recodified at § 32-1501-1545 (2001). Union Light maintained that Elrich was "liable, either jointly or entirely, for death benefits" under § 36-309 (1997), recodified at § 32-1509 (2001).

In response to Union Light's argument that Mr. Glasby was a "borrowed servant" at the time of his death, the hearing examiner recognized that, "there is a presumption in favor of the continuance of the general employment." Furthermore, after relying on Thomas v. Hycon, Inc., 244 F.Supp. 151 (D.D.C.1965) which cited a section from 3 ARTHUR LARSON, LARSON'S WORKERS' COMPENSATION LAW (2001 ed.), the hearing examiner concluded, with supporting citations to case law, that, "there was no contract of hire, express or implied, between Elrich and the decedent" and thus, "[t]here can be no compensation liability in the absence of a contract of hire between the employee and the borrowing employer."³ In addition, the hearing examiner decided that there was no agreement between Elrich and Union Light, and "[m]ere cooperation is not enough to create an employment relationship." While there was some indication that a joint employee status existed, the hearing examiner nonetheless concluded that: "Although there is a mutual business interest between the two employers, and perhaps even some element of control, joint employment as to one employer cannot be found in the absence of a contract with that employer." Since there was no contract between Mr. Glasby and Elrich, the hearing examiner found that he was not a joint employee of Elrich and Union Light.⁴ Consequently, Mr. Glasby "was solely an employee of Union Light [] at the time of his fatal accident . . . ."⁵ Moreover, "[t]he unfortunate accident was the result of an incidental, voluntary act which arose out of and in the course of his employment with Union Light."

ANALYSIS

Union Light contends that because DOES failed to make "specific findings of fact on the existence of an implied contract, this matter requires remand for further findings." In addition, Union Light maintains that since Mr. Glasby "was engaged in a valuable service for Elrich . . . [and] Elrich accepted [the] service[] . . . [,] there was in fact an implied contract of hire between [Mr. Glasby] and Elrich." Union Light also contests DOES's conclusion that Mr. Glasby volunteered to assist Elrich's project superintendent, arguing instead, that Mr. Glasby's consent to the employment relationship with Elrich may be implied from his "acceptance of the control and authority of a special or dual employer. . . ." In addition, Union Light takes issue with DOES's conclusion that Mr. Glasby was not a joint employee of Union Light and Elrich.

Elrich argues that the DOES "decision is supported by substantial evidence in the record, [and thus], . . . must be affirmed." Contrary to the position of Union Light, Elrich maintains that the DOES hearing examiner made factual findings to support her conclusions, and properly applied the law relating to borrowed and joint employees. Mrs. Glasby contends that the DOES decision should be affirmed since there was sufficient evidence to establish that no implied employment contract existed between Mr. Glasby and Elrich.

In reviewing an agency's decision, "we must sustain [its] findings unless they are `unsupported by substantial evidence in the record of the proceedings.'" See Snipes v. District of Columbia Dep't of Employment Servs., 542 A.2d 832, 835 (D.C.1992) (quoting D.C.Code § 1-1510(a)(3)(E)(1999)). "However, we `will not disturb the agency's decision if it flows rationally from the facts which are supported by substantial evidence in the record.'" Oubre v. District of Columbia, 630 A.2d 699, 702 (D.C.1993) (citing Madison Hotel v. District of Columbia Dep't of Employment Servs., 512 A.2d 303, 306 (D.C. 1986)). We give deference to an agency's interpretation of its governing statute "so long as that interpretation is reasonable and consistent with the statutory language." District of Columbia v. Davis, 685 A.2d 389, 393 (D.C.1996) (quoting Taggart-Wilson v. District of Columbia, 675 A.2d 28, 29 (D.C.1996)).

We begin with the definition of a "special employee" (which pertains to both a "borrowed" and a "lent" employee). "`A special employee is described as one who is transferred for a limited time of whatever duration to the service of another.'" Oppedisano v. Randall Elec. Inc., 285 A.D.2d 759, 728 N.Y.S.2d 570, 572 (2001) (quoting Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 578 N.Y.S.2d 106, 585 N.E.2d 355, 357 (1991)). Whether an individual is a special employee generally is a question of fact. Thompson, supra, 578 N.Y.S.2d 106, 585 N.E.2d at 357 (citations omitted). However, "special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact." Id. (citations omitted). Moreover, a person seeking to establish a special employment status must overcome the presumption favoring continuance of the general employment. As Larson states:

The only presumption is the continuance of the general employment, which is taken for granted as the beginning of any lent-employee problem. To overcome this presumption, it is not unreasonable to insist upon a clear demonstration that a new temporary employer has been substituted for the old . . . .

Larson, supra, § 67.03 at 67-7; see also Parson v. Procter & Gamble Mfg. Co., 514 N.W.2d 891, 894 (Iowa 1994) ("[I]n cases involving the question of whether an employee of a general employer became the employee of a special employer, the presumption is that the general employer continues as the sole employer." (Citations omitted)).

A starting point in overcoming the presumption that the general employment continues is satisfaction of the first element of Larson's test, the existence of an express or implied contract. As the court declared in Thomas, supra: "Before a person can be held as a joint, or special, employer there must be a contract of hire, express or implied, between the employee and [the] dual or borrowing employer." 244 F.Supp. at 156 (citing In re Brooks' Case, 338 Mass. 692, 157 N.E.2d 231 (1959)) (other citations omitted)....