To be eligible for benefits under the Act, the IE must have been an employee of an employer that carries workers' compensation insurance coverage at the time the work-related injury occurred. Section 406.031. [Cross reference. Course and Scope of Employment (C00)]. A dispute about an IE's employment status is one of compensability and is subject to judicial review under TLC Section 410.301(a). Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514 (Tex. 2007). An employee is a person in the service of another under a contract of hire, whether expressed or implied, or oral or written. TLC Section 401.012(a). An employer is a person who makes a contract of hire, employs one or more employees, and has workers' compensation insurance coverage. The term includes a governmental entity that self-insures, either individually or collectively. TLC Section 401.011(18). The IE has the burden of proof to establish that he or she was an employee of the employer for purposes of the Texas Workers' Compensation Act at the time the injury occurred. APD 000538.
In general, an independent contractor is not an employee for purposes of the Texas Workers' Compensation Act. TLC Section 401.012(b)(2). Whether an IE is an employee or independent contractor is a question of fact for the ALJ to resolve, and is determined in part by considering right to control. APD 032530. It must be determined whether the claimed employer has the right to control the IE in the details of the work to be performed. Texas Employers Insurance Association v. Bewley, 560 S.W.2d 147 (Tex. Civ. App.-Houston [1 st Dist.] 1977, no writ); APD 93110. Right of control is a factual question for the ALJ to resolve. APD 92039. In addition to right of control, TLC Section 406.121(2) sets out the factors to be considered when determining an IE's employment status. Each factor in TLC Section 406.121(2) need not be established in order to find that an IE is an independent contractor. APD 93110.
An IE can have more than one employer for the same injury for purposes of the Texas Workers' Compensation Act. In Wingfoot Enterprises D/B/A Tandem Staffing v. Alvarado, 111 S.W.3d 134 (Tex. 2003), the Supreme Court held that an IE could have more than one employer where a temporary agency furnished a worker to a client that controlled the details of the work at the time of the injury and where there was no written agreement between the temporary agency and the client as to workers' compensation coverage.
Texas courts have recognized that a general employee of one employer may become the borrowed employee of another employer. APD 021771. The determinative question is which employer had the right of control of the details and manner in which the employee performed the necessary services at the time of the injury. Carr v. Carroll Co., 646 S.W.2d 561 (Tex. App.-Dallas 1982, writ ref'd n.r.e.) In Richmond v. L.D. Brinkman & Co. (Texas) Inc., 36 S.W.3d 903 (Tex. App.-Dallas 2001, pet. denied), the court determined that the common law borrowed servant right-of-control test is not superseded by Texas Labor Code Chapter 92 entitled Temporary Common Worker Employers. However, the Staff Services Leasing Act (now known as the Professional Employer Organizations Act), Texas Labor Code Chapter 91, does supersede the common law borrowed servant right-of-control test in determining employer status of leased employees for workers' compensation purposes. Texas Workers' Compensation Ins. Fund v. DEL Industrial, Inc., 35 S.W.3d 591 (Tex. 2000); APD 021771. See also APD 101718.