JFC Temps, Inc. v. W.C.A.B. (Lindsay)

• Decision Date: 31 July 1996
• Citation: 545 Pa. 149,680 A.2d 862
• Parties: JFC TEMPS, INC., Appellant, v. WORKMEN'S COMPENSATION APPEAL BOARD (LINDSAY and G & B Packing), Appellees.
• Court: Pennsylvania Supreme Court

Page 862

680 A.2d 862

545 Pa. 149

JFC TEMPS, INC., Appellant, v. WORKMEN'S COMPENSATION APPEAL BOARD (LINDSAY and G & B Packing), Appellees.

Supreme Court of Pennsylvania.

Argued April 29, 1996.

Decided July 31, 1996.

Joseph S. Bekelja, Sandra R. Craig, Philadelphia, for JFC Temps, Inc.

Norman Haigh, Secretary, for W.C.A.B.

Eric J. Weiner, Harrisburg, for Lindsay.

Paul L. Zeigler, Camp Hill, for G & B Packing.

Before FLAHERTY, ZAPPALA, CAPPY, CASTILLE and NIGRO, JJ.

OPINION

ZAPPALA, Justice.

In this workers' compensation case, we must determine whether G & B Packing (G & B) or JFC Temps, Inc., (JFC) is responsible for the payment of workers' compensation benefits due the claimant, Alonzo Lindsay (Claimant). JFC is a temporary employment agency which hired Claimant and assigned him to G & B, a warehousing company, to drive a tractor-trailer. On March 18, 1988, while exiting the cab of a G & B truck, ¹ Claimant slipped and fell. Tests taken a few days later revealed blood clots in Claimant's leg. Complications arose and Claimant's leg was amputated. ²

Claimant subsequently filed a claim petition seeking compensation from JFC. JFC joined G & B as an additional defendant. At a hearing before a referee, ³ it was determined that the amputation of Claimant's leg was causally related to his fall from the truck and that JFC was the entity responsible for paying the claimant's workers' compensation benefits. Total disability benefits were awarded. The Workmen's Compensation Appeal Board affirmed the award of benefits but reversed the referee's determination that JFC was Claimant's employer at the time of the injury. It found that the control and supervision of Claimant's performance as a truck driver was in the hands of G & B.

Both JFC and G & B appealed to the Commonwealth Court, contending that Claimant did not meet his burden of proving a compensable injury. G & B also contended that the Board erred in finding it to be the responsible employer. The Commonwealth Court found that substantial competent evidence existed to support the referee's finding that Claimant's disability was causally connected to his fall from the truck. It reversed the Board's finding, however, as to who was responsible for paying the workers' compensation benefits.

The scope of appellate review in workers' compensation proceedings is limited to a determination of whether constitutional rights have been violated, an error of law has been committed, or any findings of fact are not supported by substantial evidence. Philadelphia Newspapers, Inc., v. Workmen's Compensation Appeal Board, 544 Pa. 203, 675 A.2d 1213 (1996). The question of whether an employer-employee relationship exists is one of law, based upon findings of fact. Martin Trucking Company v. Workmen's Compensation Appeal Board, 30 Pa. Commw. 367, 373 A.2d 1168 (1977).

The law governing the "borrowed" employee is well-established. The test for determining whether a servant furnished by one person to another becomes the employee of the person to whom he is loaned is whether he passes under the latter's right of control with regard not only to the work to be done but also to the manner of performing it. Hamler v. Waldron, 445 Pa. 262, 265, 284 A.2d 725, 726 (1971); Mature v. Angelo, 373 Pa. 593, 595, 97 A.2d 59, 60 (1953). The entity possessing the right to control the manner of the performance of the servant's work is the employer, irrespective of whether the control is actually exercised. Mature, 373 Pa. at 596, 97 A.2d at 60. Other factors which may be relevant include the right to select and discharge the employee and the skill or expertise required for the performance of the work. Id. at 597, 97 A.2d at 60. The payment of wages may be considered, but is not a determinative factor. Venezia v. Philadelphia Electric Company, 317 Pa. 557, 177 A. 25 (1935). Although the examination of these factors guides the determination, each case must be decided on its own facts. Daily Express, Inc. v. Workmen's Compensation Appeal Board, 46 Pa. Commw. 434, 406 A.2d 600 (1979).

The record in the instant case establishes that Claimant applied for a position with JFC. After reviewing Claimant's qualifications, JFC assigned Claimant to G & B as a tractor-trailer driver. ⁴ G & B had no control over which driver appeared to perform the work. Claimant reported daily to G & B where the Operations Manager, David Eckert, informed him of work hours, what truck to use, and where to go. Each day, Eckert would give Claimant documents for freight, the bill of lading, and the keys to a tractor-trailer. Personnel at the Naval Depot, the destination of most deliveries, usually completed the bill of lading and noted therein the exact location to deliver the goods. Eckert did not specify a particular route which Claimant was to take. After hauling a load, Claimant would report back to G & B. Claimant was not responsible for unloading the truck. If the deliveries were not accepted, Claimant would return to G & B. About five to ten percent of Claimant's duties included stacking boxes, running small errands and picking up miscellaneous tools and supplies under the direction of Eckert. No representative of JFC was ever present at G & B's facility.

JFC determined and paid Claimant's salary, although his time slips were completed and signed by personnel at G & B. ⁵ Claimant testified that he would call JFC if he was late or ill and if he had any questions. If Claimant was unable to work, JFC would provide G & B with a replacement. It was G & B's decision whether Claimant's work was satisfactory. If unsatisfied with Claimant's work, G & B could request a replacement for Claimant, although it could not fire him.

JFC contends that finding a temporary employment agency responsible for workers' compensation benefits is inconsistent with the definitions of employer and employee in the Act. ⁶ It also submits that a temporary employment agency should never be the employer responsible for paying workers' compensation benefits. It argues that since the entity to which the employee is assigned controls the work environment, refusing to hold it liable for compensation to injured employees would eliminate any incentive for establishing workplace safeguards. We decline to establish such a broad rule and find that the better approach to determining which entity is the responsible employer is to examine the circumstances of each case in light of the factors set forth above.

In analyzing the instant claim, the Commonwealth Court relied on Accountemps v. Workmen's Compensation Appeal Board (Myers), 120 Pa. Commw. 489, 548 A.2d 703 (1988). Accountemps involved a referral agency which supplied skilled accountants and data processors to various clients. Accountemps evaluated the personnel and matched them to particular jobs. It also set the hours each individual was to work and established and paid the salary.

Upon arriving at the temporary assignment, the claimant was told the specific job she was to perform and was instructed to see a regular employee if she had any questions. She was subsequently injured at the workplace and filed a petition for workers' compensation benefits against both the borrowing employer and Accountemps. The Commonwealth Court found that Accountemps was the responsible employer because the claimant already possessed the requisite skill and did not have to be instructed on how to perform her basic job. Thus, the borrowing employer never acquired control over the performance of the work.

G & B argues that, like the accountant in Accountemps, Claimant possessed the requisite skill to perform the work, i.e. drive the truck, and did not require further instruction from G & B. We disagree. Although G & B did not have to train Claimant regarding the operation of the tractor-trailer, the record establishes that it directed him as to the specifics of the deliveries to be made. Claimant reported to G & B daily, returned there at the end of each work day, and also performed miscellaneous odd jobs under the direction of G & B personnel. Further, JFC personnel were never present at the G & B worksite. Although JFC paid Claimant, G & B completed the time slips and evaluated his performance.

We recognize that JFC selected Claimant for the position at G & B after examining his qualifications, and that it had the sole power to actually terminate Claimant's employment. We further acknowledge Claimant's testimony that he would call JFC if he was ill or had any questions. Notwithstanding the fact that some factors weigh against finding G & B the responsible employer, the right to control the performance of the work is the overriding factor.

Our decision is in accord with established case law involving borrowed employees. In English v. Lehigh County, 286 Pa.Super. 312, 428 A.2d 1343 (1981), Thomas English was hired by Kelly Labor, a temporary employment agency, and was assigned to take samples of sewage for Lehigh County Authority (A...