AP Decision Manual: Existence of Coverage
The Division of Workers’ Compensation publishes and maintains the appeals panel decision manual. The manual is prepared under the supervision of the Appeals Panel. It serves as a guide for use by the Appeals Panel in deciding appeals of hearing officer’s contested case hearing decisions.
The primary purpose of the guide is to help the Appeals Panel achieve consistency in its decisions and to inform its customers of the legal principles it expects to follow in deciding appeals. Due to the changing nature of the law, the manual is supposed to be updated frequently.
The Division describes the decision manual as an abbreviated summary of selected aspects of Texas workers’ compensation law. An accurate understanding of the law covered in the manual will almost always require reading the Act, rules, and cases referenced. The content of the manual does not constitute official DWC policy. Use of the manual is not intended to be a substitute for obtaining legal counsel or advice.
Flahive, Ogden & Latson does not always agree with the Division’s interpretation of the law, as described in the manual. However, the AP Decision Manual is frequently a beginning point for independent legal research.
In this article, we highlight the decision manual’s comments on the existence of the employment relationship.
Existence of Employment Relationship (C02)
To be eligible for benefits under the Act, the IW 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 IW’s employment status is one of compensability and is subject to judicial review under 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. 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. Section 401.011(18). The IW has the burden of proof to establish that he or she was an employee of the employer for purposes of the Act at the time the injury occurred. APD 000538.
Independent Contractors. In general, an independent contractor is not an employee for purposes of the Act. Section 401.012(b)(2). Whether an IW is an employee or independent contractor is a question of fact for the HO 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 IW 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 to be resolved by the HO. APD 92039. In addition to right of control, Section 406.121(2) sets out the factors to be considered when determining an IW’s employment status. Each factor in Section 406.121(2) need not be established in order to find that an IW is an independent contractor. APD 93110.
Multiple Employers. An IW can have more than one employer for the same injury for purposes of the Act. In Wingfoot Enterprises D/B/A Tandem Staffing v. Alvarado, 111 S.W.3d 134 (Tex. 2003), the Supreme Court held that an IW 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.
Borrowed Servant. 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, 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.
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