Court of Appeals of Texas, Beaumont.

Geraldine THORN, Appellant,

v.

EXPRESS SERVICES, INC., d/b/a Colorado Express Services, Inc., Appellee.

No. 09-99-549 CV.

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Submitted June 26, 2000.

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Delivered Aug. 17, 2000.

Before WALKER, C.J., BURGESS and STOVER, JJ.

OPINION

PER CURIAM

*1 Gerldine Thorn sued Express Services, Inc., d/b/a Colorado Express Services, Inc., for a receptitive trauma injury she sustained while working as a telemarketer at Muscular Dystrophy Association. The trial court granted the motion for summary judgement filed by Express Services, and Thorn appealed. The sole issue presented on appeal asks, “Did the trial court err in granting summary judgement against plaintiff by finding that Express Services was plaintiff’s employer and that suit against defendant was barred?”

Thorn’s petition alleged Express Services failed to provide a safe place to work, required Thorn to work in an unsafe manner, required her to work under unsafe conditions, failed to warn her of hazardous conditions, failed to exercise reasonable care in the inspection and maintenance of equipment, and failed to exercise with reasonable care its retained control over her work. Express Services filed a motion for summary judgment, alleging the exclusive remedy provisions of the Texas Labor Code precluded Thorn’s suit for negligence because at the time of her injury Thorn was the employee of Express Services and covered by its policy of workers compensation insurance. See Tex.Lab.Code Ann. § 408.001 (Vernon 1996).

In support of its motion for summary judgment, Express Services submitted Thorn’s employment application with Express Personnel Services¹ and a Policies and Procedures Statement, signed by Thorn, that included the statements, “I understand and agree that as an Express associate assigned to a client organization, I am the employee of Express Personnel Services and not the client” and “I understand that I am subject to discharge only by Express and not a client company and that the completion of an assignment or release by a client, even for failure to meet performance standards, is not a termination of employment with Express Personnel Services.” Express Services produced its payroll checks to Thorn. Express Services also submitted its workers’ compensation insurance policy, the employer’s First Report of Injury on Thorn’s injury filed by Express Personnel-Beaumont, the decision of the Texas Workers’ Compensation Commission (denying Thorn’s workers’ compensation claim against Express Services’s insurer, on the grounds that Thorn failed to establish that she sustained the compensable injury alleged), and the decision of the Workers’ Compensation Commission appeals panel (affirming the decision of the hearing officer, stating the hearing officer “resolved the disputed issues by finding that the appellant’s [claimant] job duties with Express Services, Inc. [employer] did not cause her to sustain an injury….”) The motion for summary judgment also included Thorn’s petition, filed in the 136th District Court, against the Insurance Company of The State of Pennsylvania, which stated, “your plaintiff was on the payroll of Express Services, Inc., performing work at the direction of its client Muscular Dystrophy Association, which employer had at all times been issued a policy of Texas Workers’ Compensation Insurance by defendant which covered your plaintiff against industrial accidental injuries and injury to her body while in the course of her employment for said employer….”

*2 For purposes of the Texas Workers’ Compensation Act, an “employer” is one who “makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage.” Tex.Lab.Code Ann. § 401.011(18) (Vernon Supp.2000). Thorn argues Express Services is not her “employer” because Muscular Dystrophy Association controlled the details of the particular work in which she was engaged at the time of her injury, making Thorn the “borrowed employee” of MDA. See Exxon Corp. v. Perez, 842 S.W .2d 629 (Tex.1992). Evidence of MDA’s control over the details of Thorn’s work consisted of Thorn’s deposition testimony that she was shown an orientation video when she arrived at MDA, that she was given a list of telephone numbers and a telephone, and an MDA employee would tell her what hours to work.

Express Services concedes MDA had some right of control over Thorn’s work, but contends that merely established that MDA is a co-employer with Express Services because Express Services retained direction and control over Thorn and provided workers’ compensation insurance. In support of its argument that it retained the right of control over Thorn’s work, Express Services produced a document, signed by Thorn, that expressly acknowledged that she was the employee of Express Personnel, not the client to whom she was assigned, and that she would be subject to discharge only by Express Services, not the client.

Express Services relies upon Brown v. Aztec Rig Equipment, Inc., 921 S.W.2d 835 (Tex.App.-Houston [14th Dist.] 1996, writ denied), for the proposition that the staff leasing company and the temporary employer may be co-employers under the Texas Workers’ Compensation Act. The summary judgment evidence in Brown included the agreements expressly providing that the companies would be co-employers for purposes of workers compensation. Id. at 844. Here, the employment agreement between Thorn and Express Services states Express Services is her sole employer, so the issue is whether the fact that MDA exercised some control over Thorn creates a fact issue that Express Services was not Thorn’s employer.

We recently reversed and rendered judgment for an independent contractor who provided workers’ compensation insurance for a worker injured on the premises of the contracting party. Texas Indus. Contractors, Inc. v. Ammean, 2000 WL 365665, *1 (Tex.App.-Beaumont April 6, 2000, no pet. h.). We held, “the worker’s common law claim is barred by the Act’s exclusive remedy provision, even if control over the details of the work is in the hands of the other company with which that company has contracted.” Id. (citing Chapa v. Koch Refining Co., 985 S.W.2d 158, 161 (Tex.App.-Corpus Christi 1998), rev’d on other grounds, 11 S.W.3d 153 (Tex.1999)). Unlike Thorn, the injured worker in Texas Indus. Contractors actually received workers’ compensation benefits. Thorn’s compensation claim was denied because of a finding of no compensable injury, rather than a finding that she was not covered under Express Services’s insurance policy. Such was the case in Brown; the court held the exclusivity provision of the Texas Workers’ Compensation Act barred recovery. Brown, 921 S.W .2d at 837-38. In this case, Thorn sued Express Services’s insurer, seeking workers’ compensation benefits as an employee of Express Services, then sued Express Services for negligently exercising its retained control over her work. As the injury for which she sued was a negligently inflicted work-related repetitive trauma injury, Thorn’s sole remedy was under the Texas Workers’ Compensation Act. Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985).

*3 The trial court did not err in granting summary judgment. We overrule the issue presented and affirm the trial court’s judgment.

AFFIRMED.

	Footnotes
1		Express Personnel Services is the agent of Express Services, Inc.