This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On May 11, 1999, a hearing was held. He determined that the respondent (claimant) sustained a compensable injury on _______, while working as a borrowed servant of (site employer), and had disability from September 26 through November 18, 1998. Appellant (carrier), who is the workers’ compensation insurance carrier for site employer, asserts that there was no compensable injury, citing inconsistencies in the medical history provided at the emergency room (ER) where claimant was initially seen, that site employer did not have the right to control claimant’s work, citing contracts it provided in evidence, and that it was error to conclude that claimant was the borrowed servant of site employer and thereby impose liability for medical and income benefits on carrier. There is no reply from claimant in the appeals file and there is no appeal by claimant in regard to the length of disability.
DECISION
We affirm.
Claimant was hired by (hiring employer) in early 1998. When he was hired, claimant signed several forms with hiring employer, among them one that said “I understand that my employer is (employer), doing business as (JOBS) and that JOBS has complete control and charge of my day to day assignments.” (Emphasis as written.) In contrast to this statement in the form signed by claimant for hiring employer, an agreement between hiring employer and site employer is quiet as to right to control assignments, much less as to the right to control the manner of doing the work. The contract between the employers dealt with compliance with various laws as to work environment, prohibition to operate vehicles except forklifts, payment of invoices, notice by site employer to hiring employer of any injury, when an employee may be hired, penalty to be paid by site employer for hiring an employee prior to a certain period, prohibition of “switching” an employee to another temporary agency, and attorney’s fees.
Claimant testified that after he was hired by hiring employer, he was sent to site employer. He said he was given a job description by hiring employer as to what he would do, custodial work, for site employer, but that site employer had him doing “five or six different things that wasn’t in the job description that [hiring employer] had told me.” He also said that he was told by hiring employer that his hours would be 7:30 a.m. to 4:30 p.m. but that site employer changed those hours, requiring claimant to arrive earlier. Claimant said he arrived each morning earlier than his supervisor, Mr. S, another employee of site employer, who provided a list of things he was to do, which claimant began when he started work each day.
Claimant testified that on _______, he was operating a forklift, between 10:30 a.m. and 12:00, and had placed a pallet of material on a high rack when he struck something, causing a crate to fall upon the forklift. He said that the forklift had a cage but the falling crate broke his thumb; he went on to say that the crate held a heavy industrial fan. Claimant stated that he left the forklift and someone told him his hand was bleeding. He then “looked down” and saw “where the bone was out. I took it on my own and took it with my finger and pushed the bone back in.” He said that was when his supervisor at site employer instructed another employee to take him to the doctor.
The history provided at the hospital raised questions of claimant’s credibility. The ER records showed that claimant was seen on _______, at 2:00 in the afternoon. On one form he was listed as “unemployed,” with that form stating that “something fell on patient,” but another form said that claimant reported “he dropped a transmission on his left thumb.” An x-ray showed a “spiral fracture . . . non anatomic alignment referred to ortho.” Another form also states “patient had automobile transmission dropped on left thumb at about 11:30 this morning.” Still another form relates the “transmission fell” but it also says that the fracture has one millimeter displacement with good alignment, as opposed to the other form which showed “nonanatomic alignment.” The thumb was placed in a splint (claimant said it was a “soft cast” with a hard cast later applied) and an antibiotic was given.
Claimant testified he told the ER personnel that something heavy like a transmission fell on his thumb, because he used to work with transmissions. Claimant also said that after the x-ray, “they reset it.” He also said, on cross-examination, that the lady at the ER asked if he had been there before, and he answered yes; she then asked if he was working and he said no, implying that he thought she was referring to the time he was seen before. Claimant agreed that he has been convicted of a felony, aggravated assault in 1985. He also agreed that he discussed a settlement with an employee of hiring employer. (There was evidence that hiring employer did not have workers’ compensation insurance.)
Mr. B, the president of site employer, provided a sworn statement in which he said that claimant “was not employed by [site employer].” He stated that “at no time has [site employer] been in the business of repairing, selling, warehousing or replacing any type of transmission.” He added that there were no transmissions in his warehouse. This statement did not say that claimant was not working at site employer on _______, did not dispute that site employer set claimant’s hours, did not dispute that claimant’s supervisor was an employee of site employer, did not say that claimant was not injured at site employer, did not say that site employer did not take claimant to the ER, and did not say that site employer did not have the right to control claimant’s work at site employer.
Another sworn statement was provided by Ms. H, personnel manager for site employer. She said that claimant was an employee of hiring employer and not site employer. She said that hiring contractor paid claimant, provided benefits, and paid taxes. She attached a copy of the contract, previously summarized, between hiring employer and site employer. There was no statement provided by claimant’s supervisor or by any other employee of site employer.
A sworn statement was provided by Ms. G, manager and owner of hiring employer. She said she “oversees” the employee benefit plan. She added that claimant was hired on April 13, 1998, that he “agreed” that his employer was hiring employer, that “at the time of [claimant’s] alleged injury, he was an employee of [hiring employer].” She addressed payment of wages and taxes. She cited the contract with site employer in which hiring employer was agreed to be the employer. She did not say that there was any reference to “right to control” in the agreement between site employer and hiring employer; she did not say that hiring employer exercised any right to control claimant while he worked at site employer; she did not say that site employer did not control claimant’s work; and she did not say that site employer did not, and could not, change claimant’s hours of work.
The hearing officer is the sole judge of the weight and credibility of the evidence. See Section 410.165. He could credit claimant’s testimony as to how the accident happened, even though he may have questioned claimant’s history given to medical personnel on the day of the accident, especially in view of no evidence from carrier disclaiming that claimant was injured in a forklift accident at site employer on the day in question. The evidence was sufficient to support the determination that a compensable injury occurred at site employer, even though inconsistencies appeared in the medical records and claimant has been convicted of a felony.
The hearing officer specifically found that site employer had the right to control claimant’s work. This finding is sufficiently supported by the claimant’s testimony concerning his hours being changed by site employer, his work activities being changed by site employer, his daily job tasks being set forth by a supervisor from site employer, the absence of evidence of control of claimant’s work by hiring employer, the absence of any right of control provided for in the contract between hiring employer and site employer, and the nature of claimant’s work as not that of a highly skilled or professional worker. The question of right to control is generally determinative of whether an employee has become a borrowed servant. See Texas Workers’ Compensation Commission Appeal No. 971310, decided August 25, 1997. That case also states that whether an employee becomes a borrowed servant is a question of fact for the hearing officer. Also see Texas Workers’ Compensation Commission Appeal No. 92053, decided March 27, 1992. Compare Texas Workers’ Compensation Commission Appeal No. 980620, decided May 13, 1998. The finding of fact that site employer had the right to control claimant’s work and the evidence of record sufficiently support the determination that site employer is claimant’s employer in that claimant was a borrowed servant.
The evidence was sufficient to support the determination that claimant’s disability continued until his hard cast was removed from his thumb in November 1998.
Finding that the decision and order are sufficiently supported by the evidence and do not incorrectly apply the law, we affirm. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Joe Sebesta – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Elaine M. Chaney – Appeals Judge