Opinion
C.A. No.: 03A-12-001-THG.
Submitted: May 7, 2004.
July 26, 2004.
Dear Counsel:
This is the Court's decision on William Hudson's ("Claimant") appeal of the Industrial Accident Board's ("Board") decision holding that Willie Davis ("Davis"), rather than Tyson Foods ("Tyson") was Claimaint's employer and denying Claimant's Petition to Determine Additional Compensation Due. The Board's decisions are reversed for the reasons set forth herein and the case is remanded for further proceedings in accordance with this verdict.
STATEMENT OF FACTS
Claimant worked as a chicken catcher for 25 years. Claimant worked for various chicken companies, most recently Hudson Foods and Tyson. In the early 1980s, Hudson Foods, Tyson's predecessor company, changed chicken catchers from employees to independent contractors. In 1997, Hudson Foods entered into a contract with Davis, hiring him as a weighmaster. Under this contract, Davis was deemed an independent contractor and was to provide all chicken catching crews as necessary, hire his own crew members and would be paid based on the number of chickens caught. The contract also provided that Davis would be responsible for supervising his crew, transporting his crew to the job site and providing liability and workers' compensation insurance for his crew.
In 1998, Tyson acquired Hudson Foods. Since the 1980s, Tyson had treated weighmasters as independent contractors. Tyson paid the weighmasters and the weighmasters paid the catchers. Tyson provided the tools and heavy equipment used by the chicken catchers. Tyson provided the crates and/or cages into which the chickens were put, the trucks on which the crates were loaded, the forklifts, the gloves, the dust masks, and other assorted items. Tyson specified who drove the trucks to pick up the chickens and the order in which trucks would be loaded. Tyson determined which chicken-catching crews would work each day and what time they'd arrive. Tyson provided a Live Haul Manager or Road Man to oversee the catchers and ensure that the chickens were caught and loaded into the trucks correctly. Tyson also oversaw the hiring of catchers.
Claimant occasionally worked on Davis' crew in 1998. When Claimant states he was injured, in June of 1999, Claimant was working steadily as an assistant crew leader under Davis. Under Davis, Claimant's duties including driving the van and setting up the chicken houses to get the chickens ready for live haul. Claimant would shake a jug used as a noisemaker to move the chickens. Claimant would shake the jug continuously as the crew moved through the chicken house. The average chicken house took about three and a half hours to clear and Claimant would have used the shaker or held it for most of that time. Claimant would primarily use his right hand to shake the jug, though he would sometimes switch hands. Claimant would use the shaker for six to eight hours a day.
Claimant stated that in 1998 he complained of tingling in his right upper extremity but that the symptoms did not require medical treatment at that time. Claimant later began to notice problems in his right and left arms in April 1999. He experienced a tingling sensation which sometimes ran up his arm to his neck. He was diagnosed in April 1999 as having arthritis in his hand Despite being given medication, Claimant continued to experience pain.
In June 1999, Claimant's thumb froze and would not move. Claimant returned to his doctor who sent him to an orthopaedic specialist. Claimant underwent an EMG nerve conduction test which found that Claimant was suffering from bilateral carpal tunnel and needed a trigger release of his thumb. On September 15, 1999, Claimant underwent surgery. Claimant was not prescribed physical therapy though he received cortisone shots into his hand However, Claimant continued to have weakness, numbness and tingling in his right hand Claimant's doctors believed he needed a repeat EMG and/or another surgery.
In July 2000, Claimant saw another orthopaedic specialist, Dr. Andrew Robinson ("Dr. Robinson"), who testified on Claimant's behalf by deposition. The earlier diagnosis of bilateral carpal tunnel syndrome was confirmed and Claimant was also diagnosed as having cubital tunnel syndrome, or ulnar neuropathy at the elbow. Dr. Robinson's opinion was that there was a "high probability" that Claimant's repetitive work environment contributed to his symptoms. He based this opinion on Claimant's history of working as a chicken catcher for many years and how the mechanism of injury correlated to his physical findings.
Claimant underwent further surgery in January 2001. After the surgery, Claimant showed dramatic improvement and underwent physical therapy. Claimant developed a hematoma near his elbow, which was drained in February 2001, and which resolved three or four months after the surgery. As of May 1, 2001, Claimant was no longer totally disabled.
On March 1, 2000, Claimant filed a Petition to Determine Compensation Due. On March 23, 2003, Claimant requested a hearing on the threshold issue of who was the proper employer. On July 2, 2003, the Board conducted a hearing to determine Claimant's employment status. The Board released its decision on June 22, 2003, determining that Claimant was an employee of Davis, not Tyson, at the time of his industrial accident.
On November 18, 2003, the Board heard Claimant's Petition to Determine Compensation Due. The Board, on December 2, 2003, denied this Petition. The Board stated that they could not conclude that the events which caused the carpal tunnel syndrome arose from Claimant's work while employed by Davis or that the injury was causally related to the work performed for Davis.
STANDARD OF REVIEW
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence. Johnson v. Chrysler Corp., 312 A.2d 64, 66-67 (Del. 1965); General Motors v. Freeman, 164 A.2d 686, 688 (Del. 1960), and to review questions of law de novo, In re Beattie, 180 A.2d 741, 744 (Del.Super.Ct. 1962). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.), app. dism., 515 A.2d 397 (Del. 1986). "Weighing evidence, determining the credibility of witnesses, and resolving any conflicts in testimony are functions reserved exclusively for the [Board]." Klenk v. Med. Ctr. of Delaware, 702 A.2d 926 (Del. 1997). The Court merely determines if the evidence is legally adequate to support the agency's factual findings. 29 Del. C. § 10142(d).
DISCUSSION
A. The Board's Decision that Claimant's Employer was Davis and not Tyson is Reversed
By statute, an employer-employee relationship must be established before a claim for workmen's compensation disability benefits may be granted. Carvo v. Mills Transportation, 1998 WL 90509 (Del.Super.Ct.); White v. Gulf Oil Corp., 406 A.2d 48 (Del. 1979). The question of whether an employer-employee relationship exists is generally a question of fact. Carvo, 1998 WL 90509.
In Lester C. Newton Trucking Company v. Neal, 204 A.2d 393 (Del. 1964), the question before the Delaware Supreme Court was which of two possible employers was the decendent's employer at the time of his death. The Court then set forth four elements to take into consideration when answering the question of whether or not the relationship of employer and employee exists between two parties. "These are (1) who hired the employee; (2) who may discharge the employee; (3) who pays the employee's wages, and (4) who has the power to control the conduct of the employee when he is performing the particular job in question." Lester C. Newton Trucking Company, 204 A.2d at 395. "[W]hether or not an employer-employee relationship exists is always determined by the particular facts and determined by the fact of which possible employer has the right to control and direct the activities of the employee in the performance of the act which caused his injury." Id. This right to control is the most predominant and important fact in the determination of whether or not an employee-employer relationship exists. White, 406 A.2d at 51.
The Board found that Davis was Hudson's employer. The Board found that Davis paid Claimant, as well as deducted taxes, union dues and child support from those pay checks. The Board also found that Davis had the power to fire Claimant, as per the 1997 Contract between Davis and Tyson. Furthermore, the Board found that Davis admitted he was Claimant's employer and knew that he was to provide workers' compensation insurance for Claimant. The Board also saw the agreement between Davis and the Teamsters Union as evidence of Davis being the employer rather than Tyson.
However, the most important, determinative factor under Newton is the power to control the employee. The record reflects an insufficient analysis of this element. The Board simply stated that, "Willie Davis also had the power to control Claimant's conduct while working," but failed to state any findings of fact to support this statement. The Board seemingly failed to consider that Davis did not hire Claimant, rather he worked for Hudson before it was acquired by Tyson; that Tyson employees were on site to check on the crews; that Tyson trained the crews; that Tyson determined what days the crews worked; and that Tyson had at times directed who could be hired and who could not. (Board's Decision dated July 22, 2003, page 8).
Furthermore, the Board should have considered whether or not Davis himself was an an independent contractor or an employee of Tyson. In light of the Superior Court's opinion in Carvo v. Mills Transportation, the Board should have made the determination as to whether Davis was a mere employee of Tyson rather than an independent contractor, as that determination will have an impact when deciding who was Clamaint's employer. In making the determination as to whether Davis was an independent contractor, the Board should have considered the fourpart test set forth in Newton as well as "other well recognized and fairly typical indicia of the status of independent contractors; that is, a contractor's obligation to furnish his tools, supplies, and materials used in the work, the element of time of said employment, the method of payment, whether the work is a part of the regular business of the employer, and whether or not the employer has the privilege to terminate the same at his convenience or command . . . [T]he test most indicative of whether or not a person is an independent contractor, or an employee, lies in the control of the work which is reserved by the employer. It is not necessarily the exercise of control or interference by the employer, but the existence of the right of control or to interfere, which renders one an employee rather than an independent contractor." Weiss v. Security Storage Company, 272 A.2d 111, 114 (Del.Super.Ct. 1970), citing Gooden v. Mitchell, 21 A.2d 197 (Del. 1979).
Thus, the Court remands this case to the Board for a determination of whether Davis was acting as an employee of Tyson and hired Claimant in furtherance of Tyson's business or whether Davis was an independent contractor. Once that determination is made, the Board should then consider who was Claimant's employer, Davis or Tyson, applying the factors as set out in Newton and White. B. The Board's Decision that Claimant's Injury was Not Compensable is Reversed
Under Delaware's Workers' Compensation law, a compensable injury is one that arises out of and in the course of the employment, covering an employee engaged in, on or about the premises where the employee's services are being performed, which are occupied by, or under the control of, the employer. 19 Del. C. § 2301 (15). Whether a claimant's injuries occurred in the course and scope of his employment is a mixed question of law and fact. Histed v. E.I. Du Pont de Nemours Co., 621 A.2d 340, 341 (Del. 1993). In an appeal from the Industrial Accident Board, the Court must examine the record for any errors of law in applying Delaware's Workers' Compensation law and determine if substantial evidence supports the Board's findings. Id. When factual determinations are at issue, the Court must take due account of the experience and specialized competence of the Board and of the purposes of our workers' compensation law. 29 Del. C. § 10142(d). "Inherent in these considerations is that the Board's action must be consistent with the purposes of the Act, and in the absence of actual fraud, that its factual findings are supported by substantial evidence on the record." 29 Del. C. § 10142(d).
The Board accepted that Claimant suffered from carpal tunnel syndrome, however the Board did not conclude that the events causing Claimant's injuries arose from the work Claimant provided while employed by Davis. Further, the Board found that Claimant was unable to meet his burden of proof as to causation. The Board stated that neither Claimant nor Dr. Robinson offered testimony to causually relate the injury to the work he performed while working for Davis. Rather, Dr. Robinson stated that Claimant had performed the type of work that caused his injuries over many years. Claimant also testified that he could not identify when the pain began or who was his employer at the time. Further, Claimant stated that he experienced tingling in his right upper extremity in 1998, which was prior to his employment on Davis' crew.
However, in light of the decision to reverse the Board's decision as to Davis being Claimant's employer rather than Tyson, the causation determination is moot. Should the Board find that Tyson is Claimant's employer, the focus of causation may not be limited to June 1999. As the Board previously could not conclude that Claimant's injuries were related to work done in 1999 for Davis due to tingling Claimant experienced in 1998, should the Board on reargument find that Tyson is Claimant's employer the window for injury is enlarged, as Claimant was working for Tyson in 1998. Thus, if the Board finds that Tyson was Claimant's employer, Claimant will not be limited to linking his injuries' causation to the six month period he worked for Davis. Further, the Board's decision on causation did not include Tyson but only Davis. On remand, Tyson should have the opportunity to cross-examine Dr. Robinson as well as introduce its own witnesses.
CONCLUSION
Based on the foregoing, the Court concludes that the Board's decision that Claimant's employer was Davis and not Tyson and that Claimant's injury was not compensable are Reversed and Remanded.