Following a contested case hearing held in ______, Texas, on December 1, 1995, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, _______________, resolved the sole disputed issue by determining that on _________, the appellant (claimant) was not an employee of The Ridgemont Company (employer) but rather was the employee of an independent contractor (IC). Claimant’s appeal challenges the sufficiency of the evidence to support the conclusion that she was not a “borrowed servant” of the employer. In essence, her position is that since she fell from a ladder provided by the employer, she became the borrowed servant of the employer. The respondent (carrier) urges that the evidence is sufficient to support the determination that claimant did not become the borrowed servant of the employer.
DECISION
Affirmed.
It was the theory of claimant, who had the burden of proof on the issue, that she became the borrowed servant of the employer under “common law” principles. In evidence was the carrier’s Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21), dated February 16, 1995, which state several grounds for denying the claim including the ground that claimant was “a sub contractor [sic] of [Ms. R] who has no insurance.”
Claimant testified that before she was injured on _________, when she fell off a ladder while working, she had worked for approximately 11 years as a part-time employee for LR (Ms. R) who owned a building cleaning service which limited its service to cleaning office suites after new construction, remodeling, expansion and so forth; that when Ms. R would obtain a job, she would call claimant and tell her when and where to go to do the job; that, normally, Ms. R participated in the work and supervised it; that Ms. R provided the rags, buckets, squeegees, paint remover, polish, razor blades, vacuum and other supplies required to do such jobs; and that Ms. R paid claimant weekly by check at an agreed hourly rate for whatever hours claimant had worked. Claimant further testified that on _________, Ms. R called her that morning and told her to go clean a doctors’ office suite which had been expanded and that Ms. R was not going to be present due to a schedule conflict. Claimant said that she, along with her daughter and another woman, then drove to Ms. R’s house, picked up the supplies, and drove to the office suite. Claimant said that, upon arriving, KA (Mr. A), a supervisor for the contractor who had performed the expansion work, met her and told her “what needed to be doing,” such as the “windows, floors, bases” and so forth, and he gave her an eight-foot ladder for use in washing the windows since claimant did not have a ladder. She said Mr. A then left the site and did not return before her fall. Claimant further testified that about three hours later, while cleaning a bathroom fixture, she fell from the ladder and was injured. Claimant further testified that Mr. A did not tell her how to do the cleaning tasks and that she had been doing such work for 11 years and knew what to do. She said that usually Ms. R worked with her and the other employees on these jobs, which could last anywhere from a day to two weeks, and would decide for the crew when they would arrive and depart, and about lunch and other breaks, and that since Ms. R was not present, claimant made such decisions for herself.
Ms. R testified that she owned the cleaning business, that she employed claimant and the other employees on a part-time basis and paid them weekly, that she brings to the jobs the supplies and equipment necessary to do the clean up work, and that, on occasion, they have to ask about the extent of the job. She said that if she is not present at a job, claimant is experienced and knows what to do.
In evidence was a Joint Agreement to Affirm Independent Relationship for Certain Building and Construction Workers (Interim TWCC-83 (4-91)), signed on April 27, 1992, by Ms. R, as the IC, and by a person on behalf of the Employer, as the “hiring contractor,” providing in part that the employer and Ms. R declare that Ms. R meets the qualifications of an IC under Article 8308-3.06 (now Sections 406.141 though 406.146 of the 1989 Act) and is not an employee of the employer and that Ms. R and her employees shall not be entitled to workers’ compensation coverage from the employer. Claimant contended that this agreement was ineffective to establish that she was the employee of an IC both because the statute which provides for such agreement only applies to “construction type jobs,” which Ms. R and her employees were not engaged in, and because the agreement was outdated. The carrier, having introduced the document, did not appear to rely on it to establish claimant’s status as an employee of an IC. We note that Section 406.142 provides that the subchapter applies “only to contractors and workers preparing to construct, constructing, altering, extending or demolishing: (1) a residential structure; (2) a commercial structure that does not exceed three stories in height or 20,000 square feet in area; or (3) an appurtenance to a structure described by Subdivision (1) or (2).” There was no evidence about the size of the structure. Also noted is the provision in Section 406.145(e) that a joint agreement such as the one in evidence applies to each hiring agreement between the hiring contractor and the IC “until the first anniversary of its filing date, unless a subsequent hiring agreement expressly states that the joint agreement does not apply.”
The carrier introduced into evidence without objection a “Final Release Agreement” signed by claimant on September 2, 1994, which provided that in consideration of the sum of $2,500.00, claimant released employer “from any and all claims and causes of action of any kind whatsoever, at common law, statutory, or other wise, . . . . ” Again however, the carrier did not appear to rely on the release as a basis for deciding the issue against the claimant. Also in evidence was a copy of claimant’s Employee’s Notice of Injury or Occupational Disease and Claim for Compensation (TWCC-41), dated February 2, 1995, upon which was a handwritten notation stating in part, “[Ms. R] no comp.” The carrier also had admitted a February 15, 1995, letter from an officer of the employer which stated: “[Claimant is not, and never has been an employee of [employer]. Our payroll & tax records will verify this.”
The hearing officer found that on _________, Ms. R furnished the necessary supplies and materials for claimant to perform the cleaning services for employer, that Ms. R was free to determine the manner in which the service of cleaning was performed, including the hours of labor and the method of payment to claimant, and that claimant possessed the skills required for the specific service of cleaning for the employer. Based on these factual findings, the hearing officer concluded that on _________, Ms. R was an IC performing service for the employer, that as an employee of Ms. R claimant was an IC, that claimant was not a borrowed servant of the employer, and that claimant was not an employee of the employer. Claimant appeals from the borrowed servant conclusion asserting that the ladder was provided by the employer, that claimant “was on the ladder pursuant to instructions given her by an employee of [employer], who was the only supervisor on site,” and that “the details of claimants’ employment at the time of her injury were being controlled by the [employer].” Thus, posits the claimant, “[c]laimant was a borrowed servant of the [employer] when she sustained her injury.”
Since the appeal is narrowly focused on the issue of whether claimant became a borrowed servant, we need not discuss the evidence and law pertinent to the findings that Ms. R was an IC and that claimant, as the employee of an IC, was herself an IC. For definitions of and provisions relating to ICs, see Subchapter G, Coverage of Certain Building and Construction Workers, and Subchapter F, Coverage of Certain Independent Contractors, 1989 Act, and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE §§ 112.101, 112.200-112.203 (Rules 112.101, 112.200-112.203).
In Pederson v. Apple Corrugated Packaging, Inc., 874 S.W. 2d 135 (Tex. App.- Eastland 1994, writ denied), the court referenced the 1989 Act and stated that “[f]or workers’ compensation purposes, the party with the `right to control’ the employee at the time of the injury is the `employer.’ [Citation omitted.]” In Thompson v. Travelers Indemnity Co. of Rhode Island, 789 S.W.2d 277, 278-279 (Tex. 1990), the Texas Supreme Court, observing that the same test applies whether a claim arose under the common law or under workers’ compensation, stated as follows:
The test to determine whether a worker is an employee or an [IC] is whether the employer has the right to control the progress, details, and methods of operations of the employee’s work. [Citation omitted.] . . . The employer must control not merely the end sought to be accomplished, but also the means and details of its accomplishment as well. [Citation omitted.] Examples of the type of control normally exercised by an employer include when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of the work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result. [Citation omitted.]
Whether or not claimant became the borrowed servant of the employer was a question of fact for the hearing officer, as the trier of fact, to resolve. The hearing officer is the sole judge of the relevance, materiality, weight and credibility of the evidence. (Section 410.165(a)). As an appellate reviewing body we will not disturb a hearing officer’s factual findings unless they are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We are satisfied that the challenged conclusion of law is based upon factual findings sufficiently supported by the evidence. The evidence indicated that the only involvement of Mr. A in the performance of claimant’s work was to indicate the area to be cleaned and furnish a ladder because claimant did not have one tall enough to reach the windows. In Ms. R’s absence, claimant determined when she and her two coworkers started work, took breaks, and ended work, and it was Ms. R who provided all the supplies and equipment for the job except for the ladder. Claimant has not cited us to any authority, nor are we aware of any, for the proposition that the provision of one item of equipment by a hiring contractor, without more, converts an IC to a borrowed servant.
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Elaine M. Chaney – Appeals Judge