{"id":"full_commission-G905793-2024-04-03","awcc_number":"G905793","decision_date":"2024-04-03","opinion_type":"full_commission","claimant_name":"Emery Humphries","employer_name":"Fna Group, LLC","title":"HUMPHRIES VS. FNA GROUP, LLC AWCC# G905793 APRIL 3, 2024","outcome":"granted","outcome_keywords":["granted:1","denied:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Humphries_Emery_G905793_20240403.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Humphries_Emery_G905793_20240403.pdf","text_length":18506,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G905793 \n \n \nEMERY HUMPHRIES, EMPLOYEE              CLAIMANT    \n \nFNA GROUP, LLC, EMPLOYER                              RESPONDENT\n     \nAMTRUST NORTH AMERICA., CARRIER/TPA       RESPONDENT\n          \n \nOPINION FILED APRIL 3, 2024 \n \nUpon review before the Full Commission, Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE JASON M. HATFIELD, Attorney \nat Law, Fayetteville, Arkansas.  \n \nRespondents represented by the HONORABLE WILLIAM C. FRYE, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Reversed. \n \n \nOPINION AND ORDER \n  \nRespondents appeal the Opinion filed August 18, 2023, by the \nadministrative law judge (“ALJ”) finding that the respondent employer, FNA \nGroup, LLC, has failed to prove by a preponderance of the evidence that it \nwas a dual employer of the claimant and entitled to protection under the \nexclusive remedy provisions of Arkansas Code Annotated § 11-9-105.  \nIn this State, an employer is granted protection from civil liability by \nArkansas Code Annotated § 11-9-105(a), which states in part that: \n(a) The rights and remedies granted to an \nemployee subject to the provisions of this \n\nHUMPHRIES – G905793               2 \n \n \nchapter, on account of injury or death, shall be \nexclusive of all other rights and remedies of the \nemployee, his legal representative, \ndependents, next of kin, or anyone otherwise \nentitled to recover damages from the \nemployer[.] \n \nThe fundamental question as to special employment is whether the \nrelationship of employer and employee existed at the time of the injury. \nRandolph v. Staffmark, 2015 Ark. App. 135, 456 S.W.3d 389 (2015).  \nWhat is at issue before us is the application of the \ndual-employment doctrine. This doctrine was \nexplained by our supreme court in Daniels v. Riley's \nHealth & Fitness Centers, 310 Ark. 756, 840 S.W.2d \n177 (1992), where it held that when a general \nemployer lends an employee to a “special employer,” \nthe special employer becomes liable for workers' \ncompensation only if three factors are satisfied: \n \n(1) the employee has made a contract for hire, \nexpress or implied, with the special employer; \n \n(2) the work being done is essentially that of the \nspecial employer; and \n \n(3) the special employer has the right to control \nthe details of the work. Id. \n \nIt is well settled that although a worker may be the servant of one \nemployer for certain acts and the servant of another for other acts, “[t]he \ncrucial question is which employer had the right to control the particular act \ngiving rise to the injury.” Charles v. Lincoln Construction, 235 Ark. 470, 361 \nS.W.2d 1 (1962).  \nOur courts have consistently held that staffing agencies and \ntemporary agencies such as Labor Solutions are part of today’s \n\nHUMPHRIES – G905793               3 \n \n \nmarketplace and staffing agency-contractor relationships satisfy the dual-\nemployment doctrine. \nWhere there is no express contract between the parties, we must \ndetermine whether there was an implied contract between the claimant and \nFNA. The existence of an implied contract for hire is a fact question to be \ndetermined on the totality of the circumstances surrounding the relationship \nof the claimant and FNA. Randolph v. Staffmark, 2015 Ark. App. 135, 456 \nS.W.3d 389 (2015).  \nAn implied contract is proven by showing the parties intended to \ncontract by circumstances showing the general course of dealing between \nthe parties. K.C. Props. of N.W. Ark., Inc. v. Lowell Inv., LLC, 373 Ark. 14, \n280 S.W.3d 1 (2008). The primary test is which party controls the work \nbeing done. Estate of Bogar v. Welspun Pipes, Inc., 2014 Ark. App. 536, \n444 S.W.3d 405 (2014).  \nThere are “no greater indications of an implied employment contract \nthan the ability to determine a worker’s weekly hours, his rate of pay, his \ndiscipline, and his termination, combined with the right to control the work \nbeing performed.” Id. The question of who writes an employee’s paycheck \nis one of mechanics and not of substance and does not control the analysis. \nDurham V. Prime Indus. Recruiters, Inc., 2014 Ark. App. 494, 442 S.W.3d \n881 (2014).  \n\nHUMPHRIES – G905793               4 \n \n \nWhile the question of whether an employee is paid for his services is \na factor in determining the existence of an implied contract, the courts are \nnot concerned with whether a contractor pays an employee directly or \nthrough reimbursements for a temporary service’s payments for that work, \nbut rather whether there is work done for which an employee is paid. See \nBogar, 2014 Ark. App. 536, 444 S.W.3d 405; Sharp County Sheriff's Office \nv. Ozark Acres Improvement District, 349 Ark. 20, 75 S.W.3d 690 (2002). \nThe Court ruled in Gann v. CK Asphalt, LLC, 2023 Ark. App. 218, \n666 S.W.3d 116 (2023) that even where business operations are \n“combined,” or share the same ownership and compensate each other for \nthe use of tools and materials, there must be evidence that the special \nemployer actually compensated a worker to create a contract. In finding \nthere was no contract for hire between the claimant and BLK since BLK did \nnot pay Mr. Gann, the Court stated: \nAbsent the remuneration required by Sharp County, \nthere can be no implied contract between Gann and \nBLK. The test in Daniels v. Riley's Health & Fitness \nCenters, 310 Ark. 756, 840 S.W.2d 177 (1992), is a \nthree-part conjunctive test. Id. \n \nIn analyzing the issue of dual employment, our courts have looked to \nother states for clarity and relying at times on a Minnesota decision that \nstates: \nSince both employers may each have some control \nthere is nothing logically inconsistent . . . in finding \nthat a given worker is the servant of one employer for  \n  \n\nHUMPHRIES – G905793               5 \n \n \ncertain acts . . .    The crucial question is which \nemployer had the right to control the particular act \ngiving rise to the injury.  \n \nDaniels v. Riley's Health & Fitness Ctrs., 310 Ark. 756, 840 S.W.2d 177 \n(1992) (citing Nepstad v. Lambert, 235 Minn. 1, 50 N.W.2d 614 (1951)).  \nSince the question of liability is always raised \nbecause of some specific act done the important \nquestion is not whether or not he remains the servant \nof the general employer as to matters generally but \nwhether or not as to the act in question, he is acting in \nthe business of and under the direction of one or the \nother. \n \nCharles v. Lincoln Constr. Co., 235 Ark. 470, 361 S.W.2d 1 (1962) (citing \nNepstad, 235 Minn. 1, 50 N.W.2d 614).  \nThe dual-employment doctrine does not require the contract between \nthe parties to be long term or permanent, whether express or implied. \nAlthough the Commission may consider the length of time an employee \nworks for a special employer in its analysis, it is not determinative. Ward v. \nCommerce Construction Co., 2024 Ark. App. 150 (2024). “The crucial \nquestion is which employer had the right to control the particular act giving \nrise to the injury.” Id. \nIn the present case, FNA is in the business of building gasoline \npowered pressure washers and generators. (Hrng. Tr, P. 50). In August of \n2019, FNA was contracted with Labor Solutions, a temporary staffing \nagency, to provide employees for work on their production lines. (Hrng. Tr., \nPp. 50, 52). Labor Solutions maintained an office in the FNA facility with its \n\nHUMPHRIES – G905793               6 \n \n \nown entrance and facilities. (Hrng. Tr, P. 52). Although employees were \nrecruited by Labor Solutions, FNA determined working hours, breaks, pay \nrates, dress code, and who would be line leaders. (Hrng. Tr., Pp. 52-53, \n55). FNA has the ultimate say in whether a worker is entitled to a pay raise. \n(Hrng. Tr, P. 53). FNA’s rights extended to the ability to assign worker tasks \nand FNA maintained the right to fire employees without agreement by Labor \nSolutions. (Hrng. Tr, Pp. 53-55, 80). FNA provided any necessary safety \nequipment such as grinding shields and welding hoods. (Hrng. Tr, P. 56). In \nshort, FNA had total control over all aspects of the work done in their \nfacility, including the quality of the work and how the work was performed. \n(Hrng. Tr, P. 59). Labor Solutions had no control or supervision over the line \nwork or how FNA products were made. (Hrng. Tr, P. 82).  \nJuan Dominguez, who worked for Labor Solutions out of the FNA \nfacility in 2019, testified that FNA was responsible for almost every aspect \nof the job other than getting an employee through the door. Id. “FNA \nassumes control of the employee and designates the assignment and is \nresponsible for the daily oversight, training, management, and productivity \nof that individual associate.” (Hrng. Tr, P. 108). During orientation, Labor \nSolutions makes it clear that an associate works for FNA. (Hrng. Tr., P. 78). \nWhile Labor Solutions may have controlled the administrative \naspects of the claimant’s work with FNA, such as issuing payroll and \nhandling insurance, FNA handled all day-to-day assignments. (Hrng. Tr., \n\nHUMPHRIES – G905793               7 \n \n \nPp. 109-110). And although Labor Solutions delivered the claimant’s pay, \nFNA itself paid Labor Solutions an employee’s hourly rate with an additional \ntwenty-five percent (25%) surcharge for “all of the other day-to-day \nbusiness operations.” (Hrng. Tr, P. 77).  On the date of the claimant’s \ninjury, Labor Solutions had no role in assigning the claimant to the baler. \n(Hrng. Tr, P. 57).  \nIn his hearing testimony, FNA Senior Vice-President Thomas Moffett \nhad the following exchange regarding the agreement between FNA and \nLabor Solutions: \nQ: (by Mr. Frye) Who sets the wage rates? \n \nA: (by Mr. Moffett) FNA does. \n \nQ: Okay. What can Labor Solutions do about the \nhourly rate that is paid to, say, Mr. Humphries? \n \nA: Nothing. \n \nQ: So under this, you have already mentioned \nabout the duties of Labor Solutions. What does \nFNA do? \n \nA: FNA assumes control of the employee and \ndesignates the assignment and is responsible \nfor the daily oversight, training, management, \nand productivity of that individual associate. \n \nQ: So you all control the means and methods of \nthe work? \n \nA: Yes, sir. \n \nQ: So, you heard Rick say that you all set the pay \nrate? \n \n\nHUMPHRIES – G905793               8 \n \n \nA: Correct, that is correct. \n \nQ: The breaks, the overtime? \n \nA: That is correct. \n \nQ: Determine the work assignments and the \nsupervisors? \n \nA: That is correct. \n \nQ: All right. Just a side note, Mr. Hatfield asked \nJuan [Dominguez] about investigation after Mr. \nHumphries was hurt. Did FNA send anybody \ndown to do an investigation? \n \nA: We did. \n \nQ: Who was sent down to do the investigation? \n \nA: We sent immediately our CFO, Rocky Scalzo, \nand our corporate HR manager, Samantha \nCarias, from the Pleasant Prairie, Wisconsin \noffice. \n \nQ: Okay. With the way it was working, who was \nresponsible for controlling and assigning and \nputting people in the work assignments? \n \nA: The local FNA management. \n \nQ: You heard Mr. Hickson say that if he decided \nhe wanted to terminate somebody that he \ncould. Is that how it worked? \n \nA: Yes, he could. \n \nQ: Okay. So Labor Solutions would do the \norientation and get the people in the door; \ncorrect? \n \nA: That is correct. \n \n\nHUMPHRIES – G905793               9 \n \n \nQ: And then it was left up to FNA to move the \nemployees and control the job? \n \nA: That is correct. \n \nQ: Okay. Why was it set up like this? \n \nA: Because we are responsible for the throughput \nand the quality of product that goes out of that \nmanufacturing facility. \n \nQ: Okay. And is this the way that this was done \nbetween FNA and Labor Solutions in 2019? \n \nA: Yes, sir. \n \nQ: Okay. Was there any deviation from that? \n \nA: Not that I’m aware of. \n \nQ: Okay. Well, as senior vice-president, would \nyou be aware of that? \n \nA: Yes. \n \nQ: Okay. So, again, the way this agreement was \nis they hired the people and you managed the \nlabor? \n \nA: That is correct. \n \nQ: Labor Solutions did the recruiting and did \nmanagement of the process of the \nadministrative tasks of payroll and wages; \ncorrect? \n \nA: Correct. \n \nQ: And outside of that, there was a handoff that \nwas made to the local FNA associates and \ntheir managers? \n \nA: That is correct. (Hrng. Tr., Pp. 107-110). \n \n\nHUMPHRIES – G905793               10 \n \n \nMr. Moffett went on to explain: \nSo from an operationally-speaking position, the Labor \nSolutions Group was responsible for the recruiting \nand the staffing, if you may, of temp labor. [FNA] then \nat that point in time took over. And when I say took \nover, the FNA local management would then assume \nresponsibility for the assignments and the training and \nthe development and the promotion and the \nreassignments of those such employees. And we \noperated not only in 2019, but for somewhere around \nI believe 16 years under that premise and both \nowners of the business understood exactly what the \nroles were for each business.  \n \n(Hrng. Tr., P. 111). \n \nFNA was a dual employer of the claimant at the time of his injury. \nNot only did FNA specifically assign the claimant to the baler with no input \nfrom Labor Solutions, but FNA controlled every aspect of the claimant’s \nwork from when he arrived to what he wore on a day-to-day basis. FNA \ndetermined what the claimant would earn and if he was entitled to more pay \nand reimbursed Labor Solutions for the claimant’s pay. The only role Labor \nSolutions had over the claimant’s employment was his initial hiring and \nadministrative duties such as payroll. \nWhile the ALJ focuses on the language of the contract between FNA \nand Labor Solutions, he disregards the fact that Labor Solutions had no say \nin any essential aspect of the claimant’s work with FNA. The parties were \noperating under an implied contract at the time of the claimant’s injury. \nFurther, the claimant’s work for FNA was clearly “essentially that of the \nspecial employer,” as he was working in the FNA facility under its control at \n\nHUMPHRIES – G905793               11 \n \n \nthe time of his injury. And given that FNA was responsible for every aspect \nof the claimant’s work, the claimant was operating under FNA’s control on \nthe date of the accident, August 19, 2019. \nFor these reasons, we find that FNA was a special employer of the \nclaimant at the time of his on-the-job injury and is, therefore, entitled to the \nexclusive remedy doctrine of our Act. Therefore, the Opinion of the ALJ filed \non August 18, 2023 should be and is hereby reversed. \nIT IS SO ORDERED. \n \n    ____________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ____________________________________ \n    MICHAEL R. MAYTON, Commissioner  \n \n \n \n \nCommissioner Willhite dissents. \nDISSENTING OPINION \nThe Administrative Law Judge (hereinafter referred to as “ALJ”) found \nthat the Claimant failed to prove by a preponderance of the evidence that it \nwas a dual employer of the Claimant and is entitled to protection under the \nExclusive Remedy provision of Ark. Code Ann. § 11-9-105. After a thorough \nreview of the record, I would agree with that finding.  \n\nHUMPHRIES – G905793               12 \n \n \nThe dual-employment doctrine provides that when a general \nemployer lends an employee to a special employer, the special employer \nbecomes liable for workers’ compensation only if (a) the employee has \nmade a contract for hire, express or implied, with the special employer; (b) \nthe work being done is essentially that of the special employer; and (c) the \nspecial employer has the right to control the details of the work.   Randolph \nv. Staffmark, 2015 Ark. App. 135, 456 S.W.3d; Daniels v. Riley’s Health & \nFitness Ctrs., 310 Ark. 756, 759, 840 S.W.2d 177, 178 (1992).    When all \nthree of the above conditions are satisfied in relation to both employers, \nboth employers are liable for workers' compensation.   Id.   The solution of \nalmost every such case depends on the answer to the basic, fundamental, \nand bedrock question of whether, as to the special employee, the \nrelationship of employer and employee existed at the time of the injury.   Id. \nIf the facts show such a relationship, then the existence of a general \nemployer should not change or be allowed to confuse the solution of the \nproblem.   Id.  \nAn express contract exists between Respondent and Labor Solutions, \nthe temporary staff agency. The express contract specifically states:  \n 5. Personnel. Labor Solutions, at its cost, shall \nprovide personnel (the “Personnel”) to perform \nthe Services.  Labor Solutions shall be solely \nresponsible for the full payment of all \n\nHUMPHRIES – G905793               13 \n \n \ncompensation due the Personnel, including, \nwithout limitation, all wages, benefits, \nwithholdings, payroll taxes and contributions.  \nNo Personnel of Labor Solutions shall be \ndeemed an employee of Customer for any \npurpose relating to this Agreement, including \nwithout limitation, under any compensation \nof benefit plan of Customer.   \n(Emphasis added).  \nIt appears to be clear from the evidence that the Claimant did not \nhave an express contract with Respondent, but rather Respondent \nexpressly prohibited the Claimant from being recognized as an employee \nthrough Labor Solutions. The next question is whether an implied contract \nof employment could exist between the Claimant and Respondent.    This \nanalysis requires a determination of the intent of the parties.   See City of \nBatesville v. Independence County, 2023 Ark. App. 401, 678 S.W.3d 35.   \nSince the parties have expressly stated their intent to avoid such a finding, \nit would seem inappropriate to consider other evidence. I find that where the \nparties expressly and clearly state their intention to avoid an employment \nrelationship, there can be no implication that a contract of this type exists.   \nAs such, Respondent has failed to prove by a preponderance of the \nevidence that it was a dual employer of the Claimant and therefore entitled \n\nHUMPHRIES – G905793               14 \n \n \nto the Exclusive Remedy protections provided by Ark. Code Ann. § 11-9-\n105.  \n Therefore, for the aforementioned reasons, I find that the Claimant \nwas not a dual employee of Respondent and Labor Solutions and therefore \nRespondent should not be entitled to the Exclusive Remedy protections \nprovided by Ark. Code Ann. § 11-9-105.  \n For the foregoing reasons, I must dissent. \n \n      ________________________ \nM. Scott Willhite, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G905793 EMERY HUMPHRIES, EMPLOYEE CLAIMANT FNA GROUP, LLC, EMPLOYER RESPONDENT AMTRUST NORTH AMERICA., CARRIER/TPA RESPONDENT OPINION FILED APRIL 3, 2024 Upon review before the Full Commission, Little Rock, Pulaski County, Arkansas. Claimant represented by ...","fetched_at":"2026-05-19T22:29:45.585Z","links":{"html":"/opinions/full_commission-G905793-2024-04-03","pdf":"https://labor.arkansas.gov/wp-content/uploads/Humphries_Emery_G905793_20240403.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}