Opinion
No. 78-318-A
April 26, 1979
William C. Dorgan, Providence, for petitioner.
Roberts & Willey Inc., Bruce G. Tucker, Providence, for respondent.
In this workers' compensation case the respondent, Nursery Originals, Inc. (Originals), appeals from a decree of the appellate commission that affirms in part and denies in part a decree of a trial commissioner granting Louis R. Lupo's original petition for compensation benefits.
In April 1975, Originals, a lamp manufacturer, was sustaining unexplained inventory losses. Concerned about the adequacy of its plant security, Originals sought advice from the well-known detective agency, Pinkerton's Inc. Following a meeting between representatives of the two companies, it was agreed that Pinkerton's would conduct an undercover surveillance at Originals' plant.
Pursuant to that agreement, Lupo, a Pinkerton investigator, applied for a job at Originals' Central Falls plant, was interviewed in the same manner as was customary for other job applicants, and was hired as a shipping department laborer. While performing the duties of that job for Originals, Lupo, in his capacity as Pinkerton's Agent 777, was constantly on the lookout for any possible dishonesty on the part of his fellow employees. In addition, after leaving Originals' plant at the end of each working day, Lupo submitted to Pinkerton's written reports which included his opinions of plant employees, security, and other relevant observations. He received a weekly paycheck from Originals for his work in the stockroom and warehouse and, pursuant to his arrangement with Pinkerton's, retained that payment. In addition, Pinkerton's paid him for his undercover work.
On April 16, 1975, Lupo, while working at Originals, lifted a carton and felt a severe pain in his left biceps; his arm became swollen and turned red. The injury, however, did not become disabling until October 1975, when he was hospitalized. By that time, his undercover work at Originals had been completed and he had engaged in other surveillance assignments for Pinkerton's. After a short stay in the hospital, he returned to light work, but soon thereafter he again had to stop working. He then entered into a preliminary agreement with Pinkerton's pursuant to which he has been receiving full compensation benefits from Pinkerton's insurance carrier ever since.
Not long after the preliminary agreement became operational, Lupo filed this petition, wherein he seeks like benefits from Originals. Relying on our decision in Gehring v. Nottingham Lace Works, Inc., 82 R.I. 190, 106 A.2d 923, rehearing denied, 82 R.I. 197, 108 A.2d 514 (1954), the full appellate commission affirmed a decree of the trial commissioner granting Lupo's petition and the case is now here on Originals' appeal.
In Gehring, an employee of two Rhode Island lace companies was killed in an airplane accident while on a trip to Europe to buy lace and lace designs and patterns for both employers, with each employer paying him independently for his services to it. We held that Gehring died as a result of a personal injury arising out of and in the course of his employment, and that because his contracts of employment with the two lace companies were concurring, as opposed to joint, his dependents could recover the maximum compensation death benefit from each employer.
Applying the Gehring case here, the commission found that Lupo was a concurrent employee of Pinkerton's and Originals and that, consequently, he was entitled to recover full compensation benefits from Originals, even though he was already receiving such benefits from Pinkerton's insurer. If that decision stands, Lupo will collect tax-free weekly compensation benefits totaling $306.69, based on average weekly taxable earnings of only $192.36 when he became incapacitated.
Because the Gehring case distinguishes between concurrent and joint contracts of employment and permits double recovery only in the former, the arguments on appeal have largely focused on the nature of Lupo's contracts with Pinkerton's and Originals and whether they were joint or concurrent. It seems to us, however, that those arguments would have been of greater assistance had they been directed toward explaining why an employee working for multiple employers under concurrent contracts should be allowed to recover full compensation benefits from each employer and be limited to but a single recovery if employed under joint contracts, or indeed the root question of why anything more than the maximum benefits should be recovered in any event.
The Gehring decision furnished a fertile ground for that debate because it offered little guidance in distinguishing between the two kinds of contracts. A leading commentator explains the difference between the two as follows:
"Joint employment occurs when a single employee, under contract with two employers, and under the simultaneous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or is closely related to, that for the other."
"Dual [concurrent] employment occurs when a single employee, under contract with two employers, and under the separate control of each, performs services for the most part for each employer separately, and when the service for each employer is largely unrelated to that for the other." 1B Larson, Workmen's Compensation § 48.40 at 8-253 (1978).
In considering those questions, we are mindful that to follow the Gehring decision to its logical conclusion would permit an incapacitated employee in the service of several employers under concurrent contracts of employment to recover as many awards of full compensation as he has employers. To permit recovery of multiple compensation benefits in that situation, however, runs completely counter to the philosophy of the compensation act which, although designed to compensate an injured worker for an impairment or diminution of earning capacity, rather than for the disability itself, Peloso, Inc. v. Peloso, 103 R.I. 294, 297, 237 A.2d 320, 323 (1968); Weber v. American Silk Spinning Co., 38 R.I. 309, 315, 95 A. 603, 605 (1915), is not intended to permit a worker to "reap a financial bonanza * * * because of his unique employment situation." Geigy Chemical Corp. v. Zuckerman, 106 R.I. 534, 542, 261 A.2d 844, 849 (1970). Furthermore, the payment of compensation benefits is not merely designed to aid an injured worker during his incapacity, "but also to rehabilitate him and get him back to work." Izzi v. Royal Electric Corp., 100 R.I. 380, 384, 216 A.2d 363, 365 (1966); Warwick Brass Foundry Co. v. Universal Winding Co., 97 R.I. 474, 479, 199 A.2d 29, 32 (1964). Yet to pay an injured worker more for not working than for working solely because his contracts of employment are concurrent would create a temptation to malinger, thereby delaying a prompt return to work. Nothing in our compensation act supports a result that so frustrates fundamental workers' compensation principles, and nothing that we said in the Gehring case, or that the parties said in arguments to us, provides a reasonably sound basis for permitting Lupo to recover maximum benefits from both Pinkerton's and Originals. We conclude, therefore, that Lupo, already having been awarded maximum benefits from one employer, is precluded from recovering benefits from the other.
In many states a contrary result is dictated by the legislature as, for example, in our neighboring state of Massachusetts, where the statute provides:
"When an employee employed in the concurrent service of two or more insured employers receives a personal injury compensable under this chapter while performing a duty which is common to such employers, the liability of their insurers under this chapter shall be joint and several. Each insurer or self-insurer liable under this section shall pay compensation according to the proportion of the wages paid by its insured in relation to the concurrent wage which the employee received from all insured employers." Mass.Gen.Laws Ann. ch. 152, § 26B (West 1958).
Alternative schemes for reaching comparable results are found in Connecticut [ Conn.Gen.Stat.Ann. § 31-311 (West 1972)] and New Hampshire [N.H.Rev.Stat.Ann. § 281:30 (West 1977)].
In this case we do not decide whether Pinkerton's insurer has a right of contribution against Originals, but leave that question to another time.
This court in Gehring v. Nottingham Lace Works, Inc., 82 R.I. 190, 106 A.2d 923 (1954), relied almost entirely on Shelby Mfg. Co. v. Harris, 112 Ind. App. 627, 44 N.E.2d 315 (1942). Discussing those cases, Larson says that a complete double recovery "is impossible except in a few rare fact combinations" and that it was possible in the Shelby Mfg. Co. case, because the employee was "killed while performing services simultaneously for two employers located in two different states under circumstances making both states' statutes apply." 4 Larson, Workmen's Compensation § 85.70 at 16-30 (1979).
The respondent's appeal is sustained, the decree appealed from is reversed, and the case is remanded to the Workers' Compensation Commission.