ABBOTT v. AAC FLYING SERVICE, 1998 AWCC 6

CLAIM NO. E600607

ANTHONY ABBOTT, EMPLOYEE, CLAIMANT v. AAC FLYING SERVICE, EMPLOYER, RESPONDENT NO. 1, and AGRI-MARKETING, INC., EMPLOYER, RESPONDENT NO. 2, and FARMLAND INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 7, 1998

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by MIKE SHERMAN, Attorney at Law, Jonesboro, Arkansas.

Respondent No. 1 represented by PAUL WADDELL, Attorney at Law, Jonesboro, Arkansas.

Respondent No. 2 represented by MARK MAYFIELD and DAVID LANDIS, Attorneys at Law, Jonesboro, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on June 2, 1997, finding that claimant was an employee of Agri-Marketing, Inc. (Respondent Employer No. 2 herein) when he sustained an injury on July 13, 1995. However, the Administrative Law Judge reserved the issue of overall compensability until additional medical evidence had been made part of the record. [3] Respondent Employer No. 2 now appeals from the decision of the Administrative Law Judge, contending that claimant was not its employee or, in the alternative, that claimant worked exclusively for AAC Flying Service (Respondent Employer No. 1 herein) at the time of his injury (the latter contention assumes arguendo, that if some form of employment relationship existed between claimant and Respondent Employer No. 2, it was a dual or joint relationship with Respondent Employer No. 1). [4] Following our de novo review of the entire record, we specifically find that claimant was the employee of Respondent Employer No. 2 at the time of his injury. The decision of the Administrative Law Judge is therefore affirmed. [5] Though evidence of a formal parent-subsidiary relationship is not contained in the record, this claim involves a number of incorporated entities which in some fashion appear to emanate from Respondent Employer No. 2. One of these lesser entities, Respondent Employer No. 1, has as its officers the following individuals: [6] President: Don Arnold [7] Vice-President: Bruce Arnold [8] Secretary: Wilson Crisler [9] Mr. Crisler also serves as the president of Respondent Employer No. 2, while Don Arnold is Respondent Employer No. 2’s vice-president. [10] Claimant went to work for respondents in July of 1995, and was responsible for mixing and loading chemicals into a helicopter owned by Respondent Employer No. 1 for spraying onto crops (its pilot was an independent contractor). On July 13, 1995, claimant experienced an unfortunate episode which he described as follows:

I was loading some Amine 2-4D on a helicopter when a hose busted and sprayed me all over and everything, and I went and jumped in a rice well and washed it off the best I could, then my eyes and nose and everything got to burning, so I called on the radio and had — I can’t remember, it was one of the guys, to come out and take over so I could go to the doctor.

[11] Claimant was treated and released the same day, and returned to work for a short time until the helicopter crashed effectively eliminating his position with respondents. Respondent Employer No. 2 now asserts that claimant was the exclusive employee of Respondent Employer No. 1 at the time of his injury, and that it is not subject to workers’ compensation liability in this claim. [12] As an initial matter, it is prudent to note the testimony of Mr. Crisler, offered in an attempt to explain the relationship of Respondent Employer No. 2 to the remaining entities and employees involved:

Agri-Marketing was the employer of all the employees from truck drivers to the elevator people, the parts store workers, the — we have a shop also, and then also the ground crew at the flying service. What we did is we moved them around because we had the people that did different things. The ground crew on the helicopter sometimes worked on the farm, sometimes worked at the elevators, so we moved them all around. They were all Agri-Marketing employees, but different people hired them for different areas. (Emphasis added.)

[13] Mr. Crisler went on to explain that even though claimant only performed tasks associated with the flying service before his employment ended, he received his pay and withholding from Respondent Employer No. 2 and was subject to its directions:

Q. Now in July of 1995, had you or Don Arnold as officers in Agri-Marketing and as in your opinion the employer of Anthony Abbot decided that he should come down and work for the grain bin for a day or a week or to go out to the farm and work a day or a week, is that something that he would have been directed to do so?

A. We do that with all our employees.

[14] Also,

Q. Now, did Anthony Abbot in July of 1995, have a contract of employment with AAC Flying Service to your knowledge?

A. No.

Q. Would Agri-Marketing have paid Anthony Abbot’s wages in July of 1995 had it not considered him to be its employer?

A. No.

[15] And later,

Q. Okay. Now since you’re an officer in the flying services out there, or the flying thing, the helicopter pilots, who do they work for?
A. They’re independent, I mean they contract, they’re on a percentage.

Q. They’re independent contractors?

A. Yes.

Q. Okay. So, are you telling me that there — would there be any employees of the flying service?

A. No, sir.

. . . I see, so the employee — that has no employees, just the independent contractors, is that correct?

A. Yes, sir.

[16] During his deposition, Mr. Crisler further stated that claimant “didn’t work for the flying service . . . [he] worked for Agri-Marketing,” and it is clear from the testimony of both claimant and Don Arnold that claimant received his actual work orders from the individual pilots (who, as noted above, were regarded as independent contractors rather than as supervisory employees of the flying service). [17] After reviewing the testimony in this claim, particularly that set out above, we find that claimant was the employee of Respondent Employer No. 2 at the time of his injury in July, 1995. [18] In our opinion, Respondent Employer No. 1 appears to have existed as little more than a “name” (however valid its separate incorporation may have been), with all actual authority, control, and wage-paying emanating from Respondent Employer No. 2. Indeed, Mr. Crisler made it clear that he regarded claimant as an employee of Respondent Employer No. 2, and that claimant would have been subject to performing any number of work duties as the needs of Respondent Employer No. 2 dictated at any particular time. In addition, whatever control might have been exercised over claimant during the particularities of his flying-service duties seems to have originated not from any personnel of Respondent Employer No. 1, but rather from pilots who were independent contractors. Indeed, Mr. Crisler’s testimony indicates that the flying service had no employees to speak of. Perhaps most persuasive is Mr. Crisler’s statement that “they were all Agri-Marketing employees, but different people hired them for different areas.” In essence, Respondent Employer No. 2 has simply admitted, through the testimony of its president, that it employed claimant at the time of his injury. From the foregoing, we specifically find that claimant was an employee of Respondent Employer No. 2 at the time of his injury. [19] Respondent Employer No. 2 asserts in the alternative that if an employment relationship existed between itself and claimant, the relationship was a joint or dual one that also involved Respondent Employer No. 1. Respondent Employer No. 2 further asserts that, at the time of his injury, claimant worked exclusively for Respondent Employer No. 1 and was performing no services that benefitted Respondent Employer No. 2. [20] As stated above, we regard Respondent Employer No. 1 as having been little more than a “name.” As such, we cannot find that it posed any interruption, as either a special or general employer, to the control exercised over claimant by Respondent Employer No. 2 — who not only paid claimant’s wages but could direct him to essentially any task at any time. [21] Based on our de novo review of the entire record, and for the reasons stated herein, we specifically find that claimant was an exclusive employee of Respondent Employer No. 2, Agri-Marketing, Inc., at the time of his injury on July 13, 1995, and that respondent carrier was accordingly on the risk for said injury. [22] Given the procedural disposition of this claim, we make no findings as to the actual compensability of claimant’s injury and, consequently, extend no award of medical or indemnity benefits at this time. [23] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996). [24] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner MIKE WILSON, Commissioner