{"id":"alj-H102949-2024-12-12","awcc_number":"H102949","decision_date":"2024-12-12","opinion_type":"alj","claimant_name":"Terry Mencl","employer_name":"Staffmark Group","title":"MENCL VS. STAFFMARK GROUP AWCC# H102949 December 12, 2024","outcome":"granted","outcome_keywords":["granted:2"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/MENCL_TERRY_H102949_20241212.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MENCL_TERRY_H102949_20241212.pdf","text_length":13041,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n \n CLAIM NO. H102949 \nTERRY MENCL, EMPLOYEE CLAIMANT \n \nSTAFFMARK GROUP, EMPLOYER RESPONDENT \n \nDAUGHERTY & DAUGHERTY D/B/A RESPONDENT \n1\nST\n EMPLOYMENT STAFFING \n \n \n OPINION FILED DECEMBER 12, 2024 \n \n \nBefore ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by BRIAN G. BROOKS, Attorney, Greenbrier, Arkansas, and \nCHRISTOPHER HEIL, Attorney, Little Rock, Arkansas. \n \nRespondents represented by STUART P. MILLER and JACOB A. MCELROY, Attorneys, \nRogers, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On August  27,  2024,  the  parties  filed  a  Joint  Petition for Applicability  of  Workers' \nCompensation Jurisdiction. Upon receiving that filing, I emailed counsel for the parties and \nadvised that if the parties could submit a Stipulation of Facts, I would be willing to decide this \nmatter without the necessity of an evidentiary hearing. The attorneys agreed they could do so, \nand on October 7, 2024, filed a Joint Stipulation of Facts. I requested simultaneous briefs from \nthe parties, and those were submitted on or before October 21, 2024.  \n While  Staffmark  Group  is  listed  in  the  heading  of  this  case,  that respondent  is  not \ninvolved in this action, and any reference to “respondent” in this opinion is to Daugherty and \nDaugherty d/b/a 1\nst\n Employment Staffing.  \n\nMencl-H102949 \n2 \n \n \nTHE JOINT STIPULATIONS \n The parties submitted these joint stipulations: \n “1.   On March 18, 2023, Mencl and Yezenia Bastida (“Bastida”) were working at \nTechnical  Machining  Services  (“TMS”),  having  been  assigned  there  by  their  respective \ntemporary employment agencies. \n 2.   Mencl was assigned to TMS through Staffmark, a temporary employment agency. \n 3.      Bastida  was  assigned  to  TMS  through  1\nST\n Employment,  also  a  temporary \nemployment agency. \n 4.   While under the direction and control of TMS, Ms. Mencl’s hand was significantly \ninjured as she and Bastida were operating the form press machine. \n 5.   Both Plaintiff and Ms. Bastida were assigned to TMS, either under an express or \nimplied contract and TMS controlled the details of their work performance. \n 6.   As a result of this incident, Mencl filed a worker’s compensation claim (#H102949). \n 7.   Mencl’s worker’s compensation claim has been fully paid out and closed. \n 8.   On July 28, 2023, Mencl filed suit against 1\nST\n Employment alleging that Bastida, \nwhile acting in the course and scope of her employment with 1\nST\n Employment, was negligent \nand therefore 1\nST\n Employment was vicariously liable for the alleged negligence of Bastida. \n 9.   1\nST\n Employment filed its answer on September 21, 2023. Further, 1\nST\n Employment \nfiled a Motion to Dismiss or in the alternative, Motion to Stay (“Motion”) pending a ruling \nfrom the Worker’s Compensation Commission on April 9, 2024. \n 10.   Mencl filed her response on May 2, 2024, and briefing was complete on May 8, \n2024. \n 11.   The Court heard the parties’ argument on June 17, 2024, and  ruled  on  July  2, \n\nMencl-H102949 \n3 \n \n \n2024, that the matter should be transferred to the Worker’s Compensation Commission to \n“determine the applicability of the worker’s compensation law pertaining to this matter.”  \n The  issue  presented  to  me  on  this  stipulated  record as  set  out  in  the  Order  of  the \nBenton County Circuit Court was whether claimant is barred by the Workers’ Compensation \nAct from pursuing a claim for personal injuries for negligence on the part of her co-worker. \nFrom a review of the stipulations of the parties and the applicable law, the following findings \nof fact and conclusions of law are made in accordance with A.C.A. § 11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The joint stipulations agreed to by the parties are hereby accepted as fact. \n 2.   Claimant is not barred from pursuing a tort action in Circuit Court against \nrespondent. \n FACTUAL BACKGROUND \n As set forth in the accepted facts, this matter comes before me because claimant filed \na third-party action against 1\nST\n Employment Staffing in Benton County Circuit Court, seeking \na judgment against respondent for damages she sustained while working through Staffmark \nGroup  at  Technical  Machining  Services  (TMS) due  to  the  negligence  of  a  co-worker.    The \nCircuit Court issued this Order (in pertinent part) in transferring this matter to the Arkansas \nWorkers’ Compensation Commission: \n \nThe Arkansas Worker’s Compensation Commission has exclusive, \noriginal jurisdiction to determine the facts that establish its jurisdiction, \nunless the facts are so one-sided that the issue is no longer one of fact, \nsuch as an intentional tort. \n \nNo such facts exist in this matter; therefore, the Arkansas Worker’s \nCompensation Commission  shall  determine  the  applicability  of  the \nworker’s compensation law pertaining to this matter. \n\nMencl-H102949 \n4 \n \n \n \nAs such, the matter will be transferred, and the parties shall pursue a \ndetermination  before the  Commission  as  to  the  applicability  of \nworkers’ compensation law in accordance with Vanwagoner  v.  Beverly \nEnterprises, 334 Ark. 12 (1998).  \n \n The  parties both submitted  excellent briefs,  which were  very  much appreciated  and \nare blue backed to the record of this case, along with the Joint Stipulation of Facts and the \nOrder to Stay Proceedings and Transfer Issues to the Arkansas Workers’ Compensation \nCommission entered on July 2, 2024 by Benton County Circuit Judge Christine Horwart.  \nADJUDICATION \n \n The Benton County Circuit Court asked if the Arkansas Workers’ Compensation Law \napplied to this case. Having reviewed the statutes and case law, I find that it does not.          \nThe exclusive-remedy provision of the Act is found at Arkansas Code Annotated §11-\n9-105(a), which states, in pertinent part:  \n“(a)  The  rights  and  remedies  granted  to  an  employee  subject  to  the \nprovisions  of  this  chapter,  on  account  of  injury  or  death,  shall  be \nexclusive  of  all  other  rights  and  remedies  of  the  employee,  his  legal \nrepresentative, dependents, next of kin, or anyone otherwise entitled \nto recover damages from the employer...”   \n \nThe second applicable  statute  is §11-9-410 (a)(1)(A),  which addresses  third-party \nliability:  \n“The  making  of  a  claim  for  compensation  against  any  employer  or \ncarrier for the injury or death of an employee shall not affect the rights \nof the employee, or his or her dependents, to make a claim or maintain \nan action in court against any third party for the injury...” \n \nA.C.A.  §11-9-704(c)(3) provides: “Administrative law judges, the Commission, and \nany reviewing courts shall construe the provisions of this chapter strictly.” The doctrine of \nstrict  construction  requires  this  court  to  use  the  plain  meaning  of  the  language employed, \nHapney v. Rheem Mfg. Co., 341 Ark. 548, 553, 26 S.W.3d 771, 774 (2000).  \n\nMencl-H102949 \n5 \n \n \n  So, reading the plain language of the relevant statutory provisions, it is apparent that \nArkansas  law requires  an  employee  to  bring  any  claim  for  damages  against  an  employer \nthrough a claim before the Workers’ Compensation Commission, but recognizes the right of \nan  injured  party  to  bring  a  claim  against  a  third  party. The  statutes  do  not  define  the  term \n“third party,” but the Arkansas Supreme Court did so in Neal v. Oliver 246 Ark. 377, 438 S.W.2d \n313, (1969):  \n“The  term  \"third  party\"  is  not  defined  in the  act  and  the  first  and \nsecond  parties  are  not  even  mentioned,  but  from  the  language \nemployed in the context it is used in § 1340 (a), [now §11-9-410] supra, \n\"third party\" can only mean some person or entity other than the first \nand second parties involved, and the first and second parties can only \nmean the injured employee and the employer or one liable under the \ncompensation act. Thus, it is obvious from the wording of the statute, \nas well as common sense, that a \"third party\" within the meaning of \nthe act, must be some party other than an employer who is liable under \nthe act...”  \n \nThe Neal case decided  before  the Arkansas legislature  made major  changes  to  the \nexisting workers’ compensation law in 1993. In Miller v. Enders, 2013 Ark. 23, 425 S.W.3d 723, \nthe Arkansas Supreme Court stated: “The General Assembly is presumed to be familiar with \nthe appellate courts' interpretation of its statutes, and if it disagrees with those interpretations, \nit  can  amend  the  statutes.  Without  such  amendments,  however,  the  appellate  courts' \ninterpretations  of  the  statutes  remain  the  law.\" In  reviewing  cases  involving  the  exclusive \nremedies statute, I noted that the relevant parts of §11-9-105 and §11-9-410 (formerly §81-\n1304 and §81-1340, respectively) were unchanged by the 1993 amendments and therefore the \ninterpretations of those laws became part of the statute itself. \nWhile I agree with the parties that there is no case specifically on point in Arkansas—\nthat  being  a  person hired  by  one  employment  agency suing a  different employment  agency \nthat had placed someone in the same business--there have been a few decisions that involved \n\nMencl-H102949 \n6 \n \n \ntemporary  employees that  were  injured  while  working  for  a  special  employer that  provide \nguidance on this issue.  Daniels v. Riley's Health & Fitness Centers, 310 Ark. 756, 840 S.W.2d 177 \n(1992) cited Larson, The Law of Workmen's Compensation, § 48.00 (1962), under the heading \n\"Lent Employees and Dual Employment:\" \n“When a general employer lends an employee to a special employer, \nthe special employer becomes liable for workmen's compensation only \nif: \n(a) The employee has made a contract for hire, express or implied, with \nthe special employer;  \n                        (b) The work being done is essentially that of the special employer; and \n(c)  The  special  employer  has  the  right  to  control  the  details  of  the \nwork.” (Emphasis added).  \n \nThat section which was approved by the Arkansas Supreme Court is now 5 Larson's \nWorkers' Compensation Law, Chapter 67, with slightly different, but more helpful, wording: \n“When  one  employer  loans  its  employee  to  a  third  party,  the \nborrowing entity becomes liable for workers’ compensation if: \n \n(1)the employee has made a contract of hire, express or implied, with \nthe third party; \n                         \n(2)the work being done is essentially that of the third party; and \n                         \n(3)the third party has the right to control the details of the work. \n \nIn this case the third party is deemed to be the “special employer” of \nthe  employee,  the  lending  employer is deemed to be the “general \nemployer,”  and  both  employers  are  liable  for  workers’ \ncompensation.”  \n \nWith that in mind, I cannot find that respondent is entitled to be considered a dual \nemployer of Mencl for the simple reason that one cannot be a dual employer without first be \neither a general employer or a special employer. There was no employment contract between \nclaimant and respondent, which claimant recognized when she filed a workers’ compensation \nclaim against her general employer Staffmark and the special employer, TMS.  The lack of any \n\nMencl-H102949 \n7 \n \n \nemployment contract between claimant and respondent would have given a defense for the \nworkers’  compensation  carrier  for 1\nst\n Employment  Staffing  and  ultimately defeated  any \nworkers’ compensation claim that Mencl would have brought against respondent.   \nWithout a remedy under the workers’ compensation laws of this state, there is no bar \nto pursuing a tort remedy, see Automated Conveyor Sys. v. Hill, 362 Ark. 215, 208 S.W.3d 136 \n(2005), which includes this language:  \n“... Article  2,  section  13 of  the  Arkansas Constitution  states, ‘Every \nperson  is  entitled  to  a  certain  remedy  in  the  laws  for  all  injuries  or \nwrongs he may receive in his person, property or character....’ It  is \nclear from our case law and our constitution that a worker whose injury \nis  not  covered  by  the  WCA [Workers  Compensation  Act] is  not \nprecluded from filing a claim in tort against his employer.” \n \n  If  an  employee may  sue  an  employer  for injuries  not  covered  under workers’ \ncompensation law, then a non-employee certainly can proceed with a tort claim.  \nORDER \n \n For  the  reasons  set  forth  above, claimant  is  not  barred  by  the  exclusive  remedy \nprovisions of A.C.A §11-9-105 from bringing a civil action against 1\nST\n Employment Staffing, \nas claimant was not employed by 1\nST\n Employment Staffing, nor is it entitled to be considered \na dual employer for the purposes of Arkansas workers’ compensation law.  \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H102949 TERRY MENCL, EMPLOYEE CLAIMANT STAFFMARK GROUP, EMPLOYER RESPONDENT DAUGHERTY & DAUGHERTY D/B/A RESPONDENT 1 ST EMPLOYMENT STAFFING OPINION FILED DECEMBER 12, 2024 Before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arka...","fetched_at":"2026-05-19T22:45:20.734Z","links":{"html":"/opinions/alj-H102949-2024-12-12","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/MENCL_TERRY_H102949_20241212.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}