1

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JOSEPH FREDERICK ,

Claimant

- Below, Appellant,

v. A

- DEL CONST R UCTION CO., INC. , Employer

- Below,

Appellee

. ) ) ) ) ) ) ) ) ) ) ) C.A. No.: N19 A

- 07

- 009 CLS

Date Decided: November 30 , 2020

Upon Consideration of Appellant Joseph Frederick’s Appeal from the Industrial Accident Board REMANDED

. ORDER

Jonathon B. O’Neill , Esquire, Kimmel, Carter, Roman, Peltz & O’N e ill P.A., Christiana, Delawa re, Attorney for Appellant Joseph Frederick. John W. Morgan, Esquire, Heckler and Frabizzio, Wil mington, D elaware and Tracey A. Burleigh, Esquire, Marshall Denne hey Warner Colleman & Goggin, P.C., Wilmington, Delaware, Attorney s for Appellee A

- Del Constr uction Co., Inc.

J. Scott2

Before thi s Court is Appellant Joseph Frede rick’s (“ Mr. Frederick ”) appeal
from the Industrial Accident Board ’ s ( the “ B oard ” ) finding of a joint employment relationship at the time of Mr. Frederick ’ s injury, thereby disqual ifying Mr.
Frederick from third

- party liability. For the following reaso ns, the decision of the
B oard is REMANDED for a rehearing.
B ackground
M r. Frederick contends that he worked solely for Colonial Trucking, Inc. ( “ Colonial ” ) as a truck driver. 1 On Marc h 2 8 , 2016, Mr. Frederick sustained injuries to his face, head, neck and bac k while drivi ng a Co l onial dump truck

. Mr.
Frederick sought redress through a W orkers’ C ompensation claim against
Colonial

. Mr. Frederick later joined A

- Del Construction (“A

- Del”) as a third

- party defendant.
Most relevant here , Colonial and A

- Del together alleged that Mr. Frederick was a joint employee of A

- Del and Colonial

. 2 Mr. Freder ick disagreed and argued that he was solely an employee of Colonial. 3 On February 28, 2019, the Bo ard held an evidentiary hearing to determine if Mr. F rederick was a joint em ployee o f both
Colonial and A

- D e l. 4 The Board heard from two witnesses : (1) Mr . Frederick and

1 Frederick v. A

- Del Construction Co. , Inc. , IAB Hearing No. 1440955 (June 2 4, 2019) at p. 1. 2 Id

. 3 Id. 4 Id.3

(2) Edward Charles Fairer (“Mr. Fairer”) , the risk control officer and vice president
of A

- Del. On June 24, 2019, the Board f ound the existenc e of a joint employ ment rel ationship at the time o f Mr . Frederick ’ s injury ( the “ Board ’ s Dec ision ” )

. In t he
Board ’ s Decision, th e Board stated the following factual findings:
1. Interchange in manageme nt with respect to the Presiden t of A

- Del also serving as Vice Pres ident of Colonia l; 2. A

- Del and Colo nial sh a re the same business address of 10 Adel Drive, Newark, Delaw are, 19702 ; 3. Colonial ’ s address on Mr. Frederick ’ s W

- 2 form and on the police report is 1 0 Adel Drive, Newark, Delaware 19702

. 4. A

- Del and Colonial operate as disti nc t corporate entities . A

- Del and Colonial maintain separate income and expense records , a s well as separate payroll

- time records. 5. A

- Del and Colonial did not share the same employee s with respect to the function of hauling. 6. Mr. F rederick only drove Colonial trucks under the Colonial name

. An A

- Del employee would never dr ive a Colonial marked truck nor would a Colonial employee ever drive an A

- Del marked truck. 7. Under the business con struct of Colonial, Col onial empl oyees are under the simultaneous control of A

- Del and of Colonial. 8. Under t h e business construct of Colonial, Colonial employees ultimately performed services simultaneously for A

- Del and Colonial. 9. A

- Del and Colonial shared the same management in th e office and out in the field.4

10. A

- Del bid for ser vices o f Colonial on Colonial ’ s b ehal f. Colonial did not solicit business. 11. A

- Del determined the projec ts with which Co lonial was involved. A

Del employees dispatched assignments to C olonial employees and served as supe rvisors of Colonial employees. 12. Col onial had no managerial, acco un t ing, or human resource departme nts

– but ins tead relied on A

- Del employees to perform such functions. 13. A

- Del bore the expense of Colonia l ’ s insuran ce. 14. A

- Del could operate business independently of Colonial , but Colonial d id not operate business indepen d ently of A

- D el. 15. A

- Del is ultimately responsible for hauling. A

- Del has its own trucks, but sometimes uses Colonial ’ s trucks or anot her company ’ s t rucks for hauling. 5 On June 24, 2019, Mr. F rederick filed his Notice of Appe al to this Court.
Parties’ Asserti o ns Mr. Frederick ’ s overarching contention is that he worked solely for Colonial
as a truck driver. Mr. Frederick a rgues that : (1) his case is di stinguishable from
established case law ; and (2) the B oard committed an erro r of law in finding the joint empl o yment relationship at the time of the accident. Specific ally, Mr. Frederick claims that there was no simu ltaneous control
over him a nd that the B oard confused “interchangeability with dependency

. ”
Seco nd, Mr. Frederick ar gues that the two companies are d istinguishable for

5 I d. at 10

- 12.5

multiple reasons: (i) they are distinguished in their Zurich insurance policy, ( ii) they do two different types of wor k, (iii) t hey have separate tax identification numbers, and ( iv) Mr. Frederick receive d a paycheck only from Colonial

. Finally,
Mr. Frederick claims that he worked exclusively for Colonial and his employment was not interchangeable between the two businesses.
I n the ir Response , A

- Del and Colonial argue that the Board did not abuse its
discr etion or commit an error of law when i t found that A

- Del and Colonial were in a “joint service relationship ” at the time of Mr. F rederick ’ s injury. A

- Del and
Colonial argue that t he Boar d ’ s decis ion follows the A. Mazzetti precedent because
both Colonial and A

- Del had simultaneous control over the Mr. Frederick

. A

- Del
and Colonial argue that Colonial has no managerial, accounting , or human resources departments, and does not bid fo r contracts. A

- Del and Colonial furth er
argue that th e second element, simul taneous performance, is also satisfied here

. A

Del and Colonial contend that both c ompanies share the same address, management, and A

- Del’s accountant handles Colonials payroll. Fi nally, A

- Del
and Colonial argue that the final eleme nt requiring a close sim ilarity of work is
likewise satisfied in the instant case. A

- Del and Colonial contend that A

- Del w a s under contract to remove concrete from the jobsite, which means A

- Del was also responsible for the hauling of th e removed concrete.6

In h is R eply, Mr. Fred erick argues that A

- Del and Colonial ’ s argument must fail because A

- Del and Colonial presented no evidence to support a f inding of contractual relationship between the Mr. Frederic k and A

- Del

. Mr. Frederick also
reiterates his prior contention that none of the factors from A. Mazzett i are present in this case. Specifically, Mr. Frederick argues that he was not under the control of both companies an d the two companies did not provide simultaneous services that
were identical

. Mr. Fred erick also claims that t here w as no simultaneous control
between A

- Del and Colonial over him during the time of his injury. Further, Mr.
Frederick argues that he did not perfo r m services simultaneously fo r each employe r and the services performed were not the same or closely rela ted.
St andard of Review
In conside ring an appeal from a n IA B decision, this Court’s only function is “to determine w hether or not there was substantial competent evidence to suppor t the findin g of the board , and, if it finds such in the record, to affirm t he findings of the board.” 6 Substantial evidence is considered as “such relev ant evidence as a
reasonabl e mind might accept as ad equate to support a conclusion.” 7 This Court is

no t to “sit as a trier of fact with autho r ity to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions.” 8

6 Johnson v. Chrysler Corp. , 59 Del. 48, 66 (Del. 1965 ). 7 Id. 8 Id.7 Discussion
A. Joint Employment Test in A. Mazetti
Delaware Worker s ’ Compensa tion Act § 2354(a) allows an employee to

recov er compensation from two or more employers if the em p loy ee is in the joint service of two or more employers at the time of the accident. 9 The Delaware Supreme Court outlined a four

- part test in A. Mazzet ti & Sons, Inc. v. Ruffin 10 to det ermine if a joint e mployment relationship exists: [A] joint employment r e la tionship exists between a single employee and two employers when he or she is under contract with both employers and the employee: 1. is also under the simultaneous control of bot h employers; and 2. performs services simultaneously for both employers; a nd 3. the services performed for each are the same or closely related. 11
1. “ Under Contract With ”
Th e first determination made is whether the employee is “ under contract
with ” both emp loyers. In the A. Mazzetti case , there was no dispute that the employee w a s under contract wit h both employ ers . In the present case, substantial
evidence has not been provided which suggests Mr . Frederick was under contract
with both Colonial and A

- Del at t he time of his injury. The Board di d not state on the record whether or n ot Mr. Frederick was under contract with both employers

. Further, the testimony from Mr. Fairer that Mr. Frederick signed A

- Del

9 19 Del C

. § 2354 ( a ). 10 A. Mazzetti & Sons, Inc. v. Ruffin , 437 A.2d 1120 (Del . 1981). 11 Id. at 1123 (emp hasis added).8

employment paperwork is contradicted by Mr. Frederick ’ s statement that he signed Colonial employme nt paperwork

. As a result, on re mand, the B oard should inquire
in to whethe r Mr. Frederick was “ under contract with ” both Colonial and A

- Del an d
whether any evidence , such as empl oyment paperwork , is discoverable and supports their decision

. 2. Simultaneous Control
Under A. Mazetti , the n e xt inquir y is whether Mr. Frederick was also under
simultaneous control of both Colonial and A

- Del. The Board found that Mr.
Frederick was under the s imul taneo us control of A

- Del and of Colonial

. T he Board

s ets forth a large list of factors , but does not s pe cify which of the factors support its finding that M r. Frederick was under the simul taneous con trol of A

- Del and of
Colonial. As a result, on remand, the Board should indicate whic h factors support
its fi nding that Mr. Frederick was under t he simul taneo u s control of A

- Del and of
Co lonial.
3. Simultaneous Performance
U nder A. Mazetti , the third inquiry is whether Mr. Frederick performed
services simul taneously for both Colonial and A

- Del. It is not clear precisel y which of the many factors considered by th e B oard allowed th e Board to find that Mr. Frederick performed ser vices simul taneously for both A

- Del and Colonial. As a9

result, on remand, the Board should indicate which factors sup port its finding that Mr. Frederick performed services simul ta neously for bo th Colonial and A

- Del.
4. Same or C los ely R elated Service s Per form ed
Under A. Mazetti , the last inquiry is whether the services that Mr. Frederick performed simultaneously for both A

- Del and Colonial are the same or c lose ly
related. The Board found that t he services Mr. Frederick performed simult aneously
for both A

- Del and Colonial are cl osely rel ated. However, i t is not clear precisel y which of the many factors considered by the Boa rd allowed th e Board to find that
the services Mr. Frederick performed si m ul taneously for both A

- Del and Colonial

are closely related

. As a result, on remand, the Board should indicate which factors support its finding that the services that Mr. Frederick performed simultaneously
for both Colonial and A

- Del are closely related

. B. R emedy
19 Del. C. § 23 50(b) states in full: (b) In case of every appeal to the Superior Court the cause shall be determined by the Court from the record , which shall incl ude a typew ritten copy of the evidence and the finding and award of the Board, without the aid of a jury, and the Court may reverse, affirm or modify the award of the Board or remand the cause to the Board for a rehearing . In case any cause shall be remand ed to the B oard for a rehearing, the procedure and the rights of all parties t o such ca use shall be the same as in the case of the original hearing before the Board. 12

12 19 Del. C. § 2150 (b) (em phasis added).10

According to 19 Del. C. § 2350(b), this Court must either ( 1) reverse, affirm or modify the award o f the board or (2) remand the ca use to the Board for a
rehear i ng. Mr. F rede rick stated that he filled out Colonial trucking paperwork. 13 A

- Del
and Colonial ’ s witness, Mr. Fairer , contest ed Mr. Frederick ’ s claim h ere and stated that the application that Mr. Frederick fill ed out ha s “ A

- D el Construction on the top of it. ” 14 Since this concerns a factual dispute , and this Court may not engage in
factual undertakings, the Board should develop the record with reg ards to the

“ contract ” or application tha t Mr. Frede rick signed . The Board should also identify
the fa c tual findings that suppor t each portion of the A . Mazetti four

- part te st. Additionally, another inquiry that the Court would like the Board to make is
whether the case could be heard under § 235 4 since th e parties have indicated that
there ’ s only one insurance company and there d oes not appear to be substantial evidence in the record to demonstrate that these are two separate companies. 15
Conclusion
Based on the Court’s review of the Boar d ’ s record , the Cou rt finds the Board
overl ooked a n ecessary element , “under contract with , ” fr om A. Mazzetti

. As a

resu lt, t he record does not include substantial evidence to support the Board’s

13 Tr. Fre derick, at 51 ( lns . 24

- 2 5 )

. 14 Id. at 61 ( l ns . 4

- 7 )

. 15 See 19 Del. C. § 2354.11

finding that a “joint employment ” relationship existed

. For the forgoing reason s , the decision of t he Board is REMANDED to the Board for a rehearing

.

I T IS SO ORDERED.

_____________________ _ _____________ The Honorable Calvin L. Scott, Jr.