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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOSEPH FREDERICK,

 

 Claimant-Below,

 Appellant,

v.

A-DEL CONSTRUCTION CO., 

INC.,

Employer-Below,

Appellee.

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C.A. No.: N19A-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’Neill P.A., 

Christiana, Delaware, Attorney for Appellant Joseph Frederick. 

John W. Morgan, Esquire, Heckler and Frabizzio, Wilmington, Delaware and 

Tracey A. Burleigh, Esquire, Marshall Dennehey Warner Colleman & Goggin, 

P.C., Wilmington, Delaware, Attorneys for Appellee A-Del Construction Co., Inc.

J. Scott
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Before this Court is Appellant Joseph Frederick’s (“Mr. Frederick”) appeal 

from the Industrial Accident Board’s (the “Board”) finding of a joint employment 

relationship at the time of Mr. Frederick’s injury, thereby disqualifying Mr. 

Frederick from third-party liability. For the following reasons, the decision of the 

Board is REMANDED for a rehearing.

Background

Mr. Frederick contends that he worked solely for Colonial Trucking, Inc. 

(“Colonial”) as a truck driver.1 On March 28, 2016, Mr. Frederick sustained 

injuries to his face, head, neck and back while driving a Colonial dump truck. Mr.

Frederick sought redress through a Workers’ Compensation 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. Frederick disagreed and argued 

that he was solely an employee of Colonial.3 On February 28, 2019, the Board held 

an evidentiary hearing to determine if Mr. Frederick was a joint employee of both 

Colonial and A-Del.4 The Board heard from two witnesses: (1) Mr. Frederick and 

 

1 Frederick v. A-Del Construction Co., Inc., IAB Hearing No. 1440955 (June 24, 

2019) at p. 1.

2

Id.

3

Id.

4

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

of A-Del. On June 24, 2019, the Board found the existence of a joint employment 

relationship at the time of Mr. Frederick’s injury (the “Board’s Decision”). In the 

Board’s Decision, the Board stated the following factual findings: 

1. Interchange in management with respect to the President of A-Del 

also serving as Vice President of Colonial;

2. A-Del and Colonial share the same business address of 10 Adel Drive, 

Newark, Delaware, 19702;

3. Colonial’s address on Mr. Frederick’s W-2 form and on the police 

report is 10 Adel Drive, Newark, Delaware 19702. 

4. A-Del and Colonial operate as distinct corporate entities. A-Del and

Colonial maintain separate income and expense records, as well as 

separate payroll-time records. 

5. A-Del and Colonial did not share the same employees with respect to 

the function of hauling.

6. Mr. Frederick only drove Colonial trucks under the Colonial name.

An A-Del employee would never drive a Colonial marked truck nor 

would a Colonial employee ever drive an A-Del marked truck. 

7. Under the business construct of Colonial, Colonial employees are 

under the simultaneous control of A-Del and of Colonial.

8. Under the 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 the office and out 

in the field. 
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10. A-Del bid for services of Colonial on Colonial’s behalf. Colonial did 

not solicit business. 

11. A-Del determined the projects with which Colonial was involved. ADel employees dispatched assignments to Colonial employees and 

served as supervisors of Colonial employees. 

12. Colonial had no managerial, accounting, or human resource 

departments – but instead relied on A-Del employees to perform such 

functions. 

13. A-Del bore the expense of Colonial’s insurance. 

14. A-Del could operate business independently of Colonial, but Colonial 

did not operate business independently of A-Del. 

15. A-Del is ultimately responsible for hauling. A-Del has its own trucks, 

but sometimes uses Colonial’s trucks or another company’s trucks for 

hauling.5

On June 24, 2019, Mr. Frederick filed his Notice of Appeal to this Court.

Parties’ Assertions

Mr. Frederick’s overarching contention is that he worked solely for Colonial

as a truck driver. Mr. Frederick argues that: (1) his case is distinguishable from 

established case law; and (2) the Board committed an error of law in finding the 

joint employment relationship at the time of the accident.

Specifically, Mr. Frederick claims that there was no simultaneous control 

over him and that the Board confused “interchangeability with dependency.”

Second, Mr. Frederick argues that the two companies are distinguishable for 

 

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Id. at 10-12.
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multiple reasons: (i) they are distinguished in their Zurich insurance policy, (ii) 

they do two different types of work, (iii) they have separate tax identification 

numbers, and (iv) Mr. Frederick received 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.

In their Response, A-Del and Colonial argue that the Board did not abuse its 

discretion or commit an error of law when it found that A-Del and Colonial were in 

a “joint service relationship” at the time of Mr. Frederick’s injury. A-Del and 

Colonial argue that the Board’s decision 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 for contracts. A-Del and Colonial further 

argue that the second element, simultaneous performance, is also satisfied here. ADel and Colonial contend that both companies share the same address, 

management, and A-Del’s accountant handles Colonials payroll. Finally, A-Del

and Colonial argue that the final element requiring a close similarity of work is 

likewise satisfied in the instant case. A-Del and Colonial contend that A-Del was 

under contract to remove concrete from the jobsite, which means A-Del was also 

responsible for the hauling of the removed concrete.
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In his Reply, Mr. Frederick argues that A-Del and Colonial’s argument 

must fail because A-Del and Colonial presented no evidence to support a finding of 

contractual relationship between the Mr. Frederick and A-Del. Mr. Frederick also 

reiterates his prior contention that none of the factors from A. Mazzetti are present 

in this case. Specifically, Mr. Frederick argues that he was not under the control of 

both companies and the two companies did not provide simultaneous services that 

were identical. Mr. Frederick also claims that there was no simultaneous control 

between A-Del and Colonial over him during the time of his injury. Further, Mr. 

Frederick argues that he did not perform services simultaneously for each 

employer and the services performed were not the same or closely related.

Standard of Review

In considering an appeal from an IAB decision, this Court’s only function is 

“to determine whether or not there was substantial competent evidence to support 

the finding of the board, and, if it finds such in the record, to affirm the findings of 

the board.”6 Substantial evidence is considered as “such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.”7 This Court is 

not to “sit as a trier of fact with authority to weigh the evidence, determine

questions of credibility, and make its own factual findings and conclusions.”8

 

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Johnson v. Chrysler Corp., 59 Del. 48, 66 (Del. 1965).

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Id.

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Id.
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Discussion

A. Joint Employment Test in A. Mazetti 

Delaware Workers’ Compensation Act § 2354(a) allows an employee to 

recover compensation from two or more employers if the employee 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. Mazzetti & Sons, Inc. v. Ruffin10 to 

determine if a joint employment relationship exists: 

[A] joint employment relationship 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 both employers; and

2. performs services simultaneously for both employers; and

3. the services performed for each are the same or closely related.11

1. “Under Contract With”

The first determination made is whether the employee is “under contract 

with” both employers. In the A. Mazzetti case, there was no dispute that the 

employee was under contract with both employers. In the present case, substantial

evidence has not been provided which suggests Mr. Frederick was under contract 

with both Colonial and A-Del at the time of his injury. The Board did not state on 

the record whether or not 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 (emphasis added). 
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employment paperwork is contradicted by Mr. Frederick’s statement that he signed 

Colonial employment paperwork. As a result, on remand, the Board should inquire 

into whether Mr. Frederick was “under contract with” both Colonial and A-Del and 

whether any evidence, such as employment paperwork, is discoverable and 

supports their decision.

2. Simultaneous Control

Under A. Mazetti, the next inquiry is whether Mr. Frederick was also under 

simultaneous control of both Colonial and A-Del. The Board found that Mr. 

Frederick was under the simultaneous control of A-Del and of Colonial. The Board 

sets forth a large list of factors, but does not specify which of the factors support its 

finding that Mr. Frederick was under the simultaneous control of A-Del and of 

Colonial. As a result, on remand, the Board should indicate which factors support 

its finding that Mr. Frederick was under the simultaneous control of A-Del and of 

Colonial.

3. Simultaneous Performance

Under A. Mazetti, the third inquiry is whether Mr. Frederick performed 

services simultaneously for both Colonial and A-Del. It is not clear precisely which

of the many factors considered by the Board allowed the Board to find that Mr. 

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

Mr. Frederick performed services simultaneously for both Colonial and A-Del. 

4. Same or Closely Related Services Performed

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 closely 

related. The Board found that the services Mr. Frederick performed simultaneously 

for both A-Del and Colonial are closely related. However, it is not clear precisely 

which of the many factors considered by the Board allowed the Board to find that 

the services Mr. Frederick performed simultaneously 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. Remedy

19 Del. C. § 2350(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 include a 

typewritten 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 remanded to the Board for a 

rehearing, the procedure and the rights of all parties to such cause shall be 

the same as in the case of the original hearing before the Board.12

 

12 19 Del. C. § 2150(b) (emphasis added). 
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According to 19 Del. C. § 2350(b), this Court must either (1) reverse, affirm 

or modify the award of the board or (2) remand the cause to the Board for a 

rehearing. 

Mr. Frederick stated that he filled out Colonial trucking paperwork.13 A-Del 

and Colonial’s witness, Mr. Fairer, contested Mr. Frederick’s claim here and stated 

that the application that Mr. Frederick filled out has “A-Del 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 regards to the 

“contract” or application that Mr. Frederick signed. The Board should also identify

the factual findings that support each portion of the A. Mazetti four-part test. 

Additionally, another inquiry that the Court would like the Board to make is 

whether the case could be heard under § 2354 since the parties have indicated that 

there’s only one insurance company and there does 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 Board’s record, the Court finds the Board 

overlooked a necessary element, “under contract with,” from A. Mazzetti. As a 

result, the record does not include substantial evidence to support the Board’s 

 

13 Tr. Frederick, at 51 (lns. 24-25).

14 Id. at 61 (lns. 4-7).

15 See 19 Del. C. § 2354. 
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finding that a “joint employment” relationship existed. For the forgoing reasons,

the decision of the Board is REMANDED to the Board for a rehearing. 

IT IS SO ORDERED.

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The Honorable Calvin L. Scott, Jr.