BOARD No. 02929290Commonwealth of Massachusetts Department of Industrial Accidents
Filed: December 31, 1997
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and Levine)
James N. Ellis, Jr., for the employee.
Donald E. Hamill, Jr., Esq., for the insurer.
The employee appeals from a decision in which an administrative judge awarded a closed period of partial incapacity benefits for an industrial injury that occurred on June 8, 1990. The employee argues that the judge erred by failing to adjust his average weekly wage to reflect the employee’s additional wages earned while “leased” to another employer. We recommit the case for further findings on that issue.
We reiterate only the facts relevant to the issue on appeal. In the fifty-two week period prior to the employee’s June 1990 accident, while working for S F Concrete, he also had worked on several occasions for another company, International Concrete Floors Corporation (“International Concrete”). (Dec. 10, 11.) The employee offered as evidence a wage statement from International Concrete that indicated wages paid to the employee by that company. (Employee Ex. 2.) The employee also introduced in evidence copies of cancelled checks, undated paystubs and a W-2 form for 1989 from International Concrete. (Employee Exs. 3-5.) On these subsidiary findings of fact, the judge concluded that the employee failed to show that he was concurrently employed at the time of his June 8, 1990 industrial injury at S F Concrete. (Dec. 12.)
The employee claims error. We point out at the outset that the employee’s claim for an adjustment to his average weekly wage was based not on concurrent employment under § 1(1) , but, instead, on the “leased” employee theory that is within the provisions of § 18. (Employee’s Hearing Brief, incorporated by reference, Dec. 11.) Because there was evidence adduced at the hearing that could be taken as support for a claim of “leased” employment, we recommit the case for further findings on that issue.
The evidence on the record relative to the question of a “leased” employee arrangement between S F Concrete and International Concrete is as follows: The employee, who never applied for work at International Concrete, was occasionally sent there from the S F Concrete office where he had reported to work. (Tr. 20, 21.) He went to International Concrete with other workers from S F Concrete, sometimes in personal cars, sometimes in company cars. (Tr. 25.) The employee earned wages from International Concrete in the year prior to his injury. (Tr. 24.) Moreover, the employee testified as to the direction of a supervisor at S F Concrete, and that the employee and others were being sent to work at International Concrete. The employee testified: “I used to go to work to the office every day like always, and then they used to send the workers when they needed it. The person in charge, Joe Montero used to send me —” (Tr. 21.) “[T]hat morning when we are going to — we go to the office, they said, `Almeida you are going to work with International Concrete . . .'” (Tr. 24-25.) Although the insurer argues that this testimony was properly excluded by the judge, we find error. The statements that the employee recounted were those of an agent of S F Concrete, concerning a matter within the scope of his employment, made during the existence of the agency relationship. Such statements are vicarious admissions of the employer/insurer, who is held to have responsibility for the statement. See Liacos, Massachusetts Evidence § 8.8.6 (6th ed. 1994). On recommittal, the judge should consider and weigh all of the evidence of a “leased” employee arrangement.
The law on “leased” employees combines common law and statutory elements. When an employee is “leased” by his employer to another employer, the primary employment relationship between the “lessor” employer and the employee continues uninterrupted, unless the employee assents to becoming the employee of the new employer. The employee’s willingness to perform work for the new employer is not decisive to the analysis. Sargentelli’s Case,331 Mass. 193, 195 (1954), citing Abbott v. Link-Belt Co.,324 Mass. 673, 677 (1949) (“to become the servant of the man to whom he is lent, the servant must assent to the change in his employer”); see Brooks’s Case, 338 Mass. 692, 694 (1959) (citingSargentelli’s Case and the § 1(4) definition of employee: one who enters into a contract of employment, express or implied, with the new employer). In Sargentelli’s Case, at 195, the court affirmed a board decision finding the employee to be a “leased” employee, noting that the board found that “the employee when either asked, requested, told, or ordered to work on the [lessee employer’s] job, did not assent to becoming an employee of [that lessee employer] by complying therewith.” The board also had found that the employee punched in at the lessor employer’s shop when working for the new employer. Id. at 194.
It is of historical interest that other decisions designate the control and direction of the primary employer as an additional consideration in the factual question of whether an employee should be considered “lent.” “`The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired.'”Galloway’s Case, 354 Mass. 427, 430 (1968), quoting Langevin’sCase, 326 Mass. 43, 47 (1950). The court also pointed out that it is not decisive which employer actually paid the employee. Id.
The question of how to evaluate a “leased” employee case became somewhat easier to answer in 1969, when the Legislature amended G.L.c. 152, § 18, to include the provision on “general” and “special” employers. See supra, n. 3, as well as the § 1(5) definition of “employer.” See St. 1969, c. 755, §§ 1 and 2. The case law since those amendments is clear in its treatment of the “leased” employee problem as being within the scope of the general/special employer relationship addressed in §§ 1(5) and 18. See Ramsey’s Case, 5 Mass. App. Ct. 199, 202-204 (1977) (pointing out that the 1969 amendments to §§ 1(5) and 18 minimized the use of common law criteria of control over and assent by the employee by imposing primary liability on the general employer); Numberg v.GTE Transport, Inc., 34 Mass. App. Ct. 904 (1993) (rescript op.).
Finally, the specific issue argued by the employee in this case, the inclusion of wages from “leased” employment in the average weekly wage based on an injury at the primary employment, was addressed by the reviewing board in Glennon v. Beacon ConstructionCo., 6 Mass. Workers’ Comp. Rep. 185 (1992), a decision we find controlling here. We first noted in Glennon that the applicable inquiry was based on the § 18 general/special employer provision.Id. See Ramsey, supra; Numberg, supra. We then determined that the judge failed to make adequate findings as to the existence of the “leased” employment relationship, and that it was appropriate to recommit the case to ascertain the effect that such a relationship, if found, would have on the employee’s average weekly wage. Id. at 186-187. We also pointed out, consistent withSargentelli’s Case, supra at 195, that the insurer had the burden of proving that the employee was not the employee of its insured when he worked for the alleged “lessee” employer. Glennon, at 187. See Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 623 (1990) (“A presumption exists that an employee remains in the employ of his original principal, in absence of evidence to the contrary”). With these considerations in mind, we recommit the case to the administrative judge for further findings.
____________________________ Sara Holmes Wilson Administrative Law Judge
____________________________ Carolynn N. Fischel Administrative Law Judge
____________________________ Frederick E. Levine Administrative Law Judge
Filed: December 31, 1997
`Average weekly wages’, the earnings of the injured employee during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two; . . . In case the injured employee is employed in the concurrent service of more than one insured employer or self-insurer, his total earnings from the several insured and self-insurers shall be considered in determining his average weekly wages.
In any case where there shall exist with respect to an employee a general employer and a special employer relationship, as between the general employer and the special employer, the liability for the payment of compensation for the injury shall be borne by the general employer or its insurer, and the special employer or its insurer shall be liable for such payment if the parties have so agreed or if the general employer shall not be an insured or insured person under this chapter.
The word, `employer’ shall include both the general employer and the special employer in any case where both relationships exist with respect to an employee.