                                 Cite as 2014 Ark. App. 536

                 ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                       No. CV-14-110


                                                  Opinion Delivered   October 8, 2014
ESTATE OF FREDERICK BOGAR
(DECEASED)
                    APPELLANT                     APPEAL FROM THE ARKANSAS
                                                  WORKERS’ COMPENSATION
V.                                                COMMISSION [NO. G11081]


WELSPUN PIPES, INC.
                                 APPELLEE         AFFIRMED



                           JOHN MAUZY PITTMAN, Judge

       Appellant appeals from the Arkansas Workers’ Compensation Commission’s decision

that appellant’s decedent, Frederick Bogar, was jointly employed by Welspun Pipes, Inc., and

Prime Industrial Recruiters (a/k/a Elite Services) at the time of his injury and death, thus

entitling Welspun to protection from a tort suit for wrongful death. Also injured in this

accident was Mr. Bogar’s co-worker, William Durham. Mr. Durham’s appeal, involving

issues that are essentially identical to those presented herein, was disposed of in a companion

case, Durham v. Prime Industrial Recruiters, Inc., 2014 Ark. App. 494, ___ S.W.3d ___.

       The dual-employment doctrine was explained in the Arkansas Supreme Court case of

Daniels v. Riley’s Health & Fitness Centers, 310 Ark. 756, 840 S.W.2d 177 (1992), as follows.

Citing Charles v. Lincoln Construction Co., 235 Ark. 470, 361 S.W.2d 1 (1962), and 1C Arthur

Larson, The Law of Workmen’s Compensation § 48.00 (1962), the court held that, when a

general employer lends an employee to a special employer, the special employer becomes
                                 Cite as 2014 Ark. App. 536

liable for workers’ compensation only if (a) the employee has made a contract for hire, express

or implied, with the special employer; (b) the work being done is essentially that of the special

employer; and (c) the special employer has the right to control the details of the work.

Daniels, supra.   When all three of the above conditions are satisfied in relation to both

employers, both employers are liable for workers’ compensation. Id. The Daniels court also

said:

        [T]he solution of almost every such case finally depends upon the answer to the basic,
        fundamental and bedrock question of whether as to the special employees the
        relationship of employer and employee existed at the time of the injury. If the facts
        show such relationship, the existence of a general employer should not change or be
        allowed to confuse the solution of the problem.

Id. at 759–60, 840 S.W.2d at 178 (quoting Stuyvesant Corp. v. Waterhouse, 74 So. 2d 554 (Fla.

1954)).

        The sole issue presented in this appeal is whether the Commission erred in finding that

there was an implied contract for hire between Welspun and appellant’s decedent. Appellant

argues that the Commission’s finding of such an implied contract was erroneous because (1)

the Commission employed an erroneous standard in determining whether such an implied

contract existed; and (2) the Commission “arbitrarily ignored” evidence favorable to appellant.

        Appellant first asserts that the Commission erroneously conflated the elements of dual

employment, finding that (a) there was an implied contract for hire with Welspun solely

because (b) the work being done was essentially Welspun’s and (c) Welspun had the right to

control the details of the work. This is an oversimplification of the Commission’s findings

and is without merit. The existence of an implied contract for hire is a fact question to be


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determined based on the totality of the circumstances surrounding the relationship of Welspun

and appellant’s decedent. Dixon v. Salvation Army, 86 Ark. App. 132, 160 S.W.3d 723 (2004)

(citing Schneider v. Salvation Army, 14 N.W.2d 467 (Minn. 1944) (totality test); Arkansas State

Police v. Davis, 45 Ark. App. 40, 870 S.W.2d 408 (1994) (fact question)). The Commission’s

opinion did not merely consider that the work being done at the time of the injury was

Welspun’s and that Welspun had the right to control the details of the work; instead, it clearly

analyzed the issue based on the totality of the circumstances concerning the relationship:

                The undisputed testimony in this case indicates that Elite Services recruits
       employees for Welspun. However, once the employees go to work at the Welspun
       facility, Welspun dictates the hours they work, sets their rate of pay, can discipline the
       individuals and can terminate the individuals. Once Elite Services hires and supplies
       an employee to Welspun, Elite Services’ primary function is to process payroll.
       Because Elite Services has an exclusive market contract with Welspun in Little Rock,
       if Welspun fires an Elite Services employee, that employee has nowhere else to go
       with Elite Services. This examiner can think of no greater indications of an implied
       employment contract than the ability to determine a worker’s weekly hours, his rate
       of pay, his discipline, and his termination, combined with the right to control the work
       being performed.

(Emphasis added.) Here, the Commission considered not only the right to control the work

but also the relationship between the general and special employers; the role of the general

employer after supplying an employee to the special employer; the nature of the market

contract between the general and special employers; and the effect of that market contract

upon an employee’s prospects for continued employment with the general employer if

terminated by the special employer. In the following paragraph, the Commission recited that

another employee injured in the accident, Mr. Durham, testified that:

       [H]e understood that if he was hired by Elite Services that he would be working in the
       Welspun plant because Elite Services only supplied employees to the Welspun plant.

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       Mr. Durham also understood that Welspun could fire him. Mr. Durham felt like he
       was more of an Elite Services employee, but that he was also a Welspun employee.

Noting that the parties had stipulated that the facts testified to by Mr. Durham also applied

to the situation involving appellant’s decedent, the Commission considered Mr. Durham’s

testimony together with all of the evidence recited above in finding that an implied contract

for hire existed.

       We cannot say, on this record, that the Commission employed an erroneous standard

by failing to consider the totality of the circumstances concerning the relationship between

appellant’s decedent and Welspun in finding that there was an implied contract for hire. Nor

can we say that evidence of mutual assent or obligations was lacking or that the Commission

failed to consider these elements. Assent to the terms of the employment by Welspun is to

be found in Mr. Durham’s testimony. Mutuality of contract simply means that an obligation

must rest on each party to do or permit to be done something in consideration of the act or

promise of the other; thus, neither party is bound unless both are bound. Tyson Foods, Inc.

v. Archer, 356 Ark. 136, 147 S.W.3d 681 (2004). Consideration is any benefit conferred or

agreed to be conferred upon a promisor to which he is not lawfully entitled, or any prejudice

suffered or agreed to be suffered by a promisor other than such as he is lawfully bound to

suffer. McIlroy Bank & Trust Co. v. Comstock, 13 Ark. App. 13, 678 S.W.2d 782 (1984).

Here, mutual obligation is to be found in the evidence, also recited by the Commission, that

Welspun reimbursed Elite Services for payments made by Elite to employees for work

performed at Welspun: the decedent’s obligation to perform work for Welspun was balanced

against the obligation of Welspun to provide reimbursements for Elite’s payments for that

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work. We hold that the findings underlying the determination of an implied contract for hire

are supported by substantial evidence.

        Next, appellant argues that the Commission erred by arbitrarily regarding “dispositive

evidence” in the form of documents evincing the agreement between Welspun and Elite, and

evidence that Elite employees were treated differently than Welspun employees. We do not

agree that this evidence was either arbitrarily disregarded or dispositive. Although it is true

that the Commission may not arbitrarily disregard evidence, the Commission’s failure to

specifically discuss conflicting evidence does not mean that it was arbitrarily disregarded where

there is substantial evidence to support its decision, Raulston v. Waste Management, Inc., 2012

Ark. App. 272, 411 S.W.3d 711, and we have already held that the finding of an implied

contract for hire is supported by substantial evidence. Furthermore, even if the Commission

had been persuaded by the evidence that appellant mentions to find that Bogar was an Elite

employee, this would not preclude a finding that Welspun was a special employer. See

National Union Fire Insurancev. Tri-State Iron & Metal, 323 Ark. 258, 914 S.W.2d 301 (1996).

        Affirmed.

        WALMSLEY and HIXSON, JJ., agree.

        Paul Byrd Law Firm, PLLC, by: Paul Byrd; and Brian G. Brooks, Attorney at Law, PLLC,

by: Brian G. Brooks, for appellant.

        Friday, Eldredge & Clark, LLP, by: James M. Simpson, Guy Alton Wade, and Phillip M.

Brick, Jr., for appellee.




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