Thought Leadership

The claimant alleged he was injured while doing demolition work on January 7, 2022. He initially filed a petition against Alliance Environmental Systems (Alliance), but Alliance denied that it was Mr. Yepes’ employer and suggested he was, instead, employed by a sub-contractor, T. Lomax and Associates (Lomax). When Lomax similarly denied that the claimant was an employee, an evidentiary hearing was scheduled to determine the correct employer.

At the hearing, the president of Alliance testified that he had reached an oral contract with a Lomax representative, Virgil Conway, to perform the work in question. The president of Lomax testified that they solely work in Pennsylvania. Mr. Conway testified that he arranges for workers to be provided to Alliance, sometimes for Lomax and sometimes for other companies. However, he would not provide workers from Lomax for a job in Delaware. The claimant testified that he had received a text from an Alliance employee to show up at the jobsite on the day he was injured. That is the usual way he and other co-workers were retained for a job with Alliance.

The Industrial Accident Board applied the Falconi test and utilized the Restatement of Agency factors to conclude that the preponderance of factors suggested Alliance was the employer for workers’ compensation purposes. Lomax could not be deemed the claimant’s employer and the petition against it was dismissed. Moreover, the Board noted that, even if Alliance was not deemed the claimant’s employer (and Lomax or Mr. Conway was), it was liable for his workers’ compensation benefits via operation of 19 Del. C. § 2311 because it was the general contractor and did not receive a valid Certificate of Insurance from either subcontractor.

_{What’s Hot in Workers’ Comp, Vol. 27, No. 1, January 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}