Associated Aluminum Prods. & Builders Mut. Ins. Co. v. Elvira-Menez
| Decision Date | 16 September 2014 |
| Docket Number | Record No. 2301-13-2 |
| Court | Virginia Court of Appeals |
| Parties | ASSOCIATED ALUMINUM PRODUCTS AND BUILDERS MUTUAL INSURANCE COMPANY v. SILVESTRE ELVIRA-MENEZ, RONNIE JENKINS, VIRGINIA FARM BUREAU, RODNEY BLAIR AND UNINSURED EMPLOYER'S FUND |
UNPUBLISHED
Present: Judges Humphreys, Alston and Decker Argued at Richmond, Virginia
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. Vernon Priddy, III (Michael L. Goff, Jr.; Two Rivers Law Group, P.C., on briefs), for appellants.
E. Wayne Powell (Christian A. Parrish; The Parrish Law Group, P.C., on brief), for appellee Silvestre Elvira-Menez.
Michael P. Del Bueno (Amber L. Ford; Whitt & Del Bueno, P.C., on brief), for appellees Ronnie Jenkins and Virginia Farm Bureau.
No brief or argument for appellees Rodney Blair and Uninsured Employer's Fund.
Associated Aluminum Products ("AAPCO") challenges the commission's award of temporary total disability benefits to Silvestre Elvira-Menez (claimant). AAPCO contends that the commission erred in holding that claimant suffered a compensable injury that arose out of and in the course of his employment. AAPCO also alleges that the commission erred in finding AAPCO was claimant's statutory employer and, thus, liable for claimant's work-related injury. Finding no error in the commission's award, we affirm.
On appeal from the commission, "we view the evidence in the light most favorable to the party prevailing below." Tomes v. James City Fire, 39 Va. App. 424, 429-30, 573 S.E.2d 312, 315 (2002) (citing R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990)).
So viewed, the evidence indicated that Rodney Blair worked for a time as a subcontractor for AAPCO, performing roofing work on home remodeling projects. However, when Blair's insurance lapsed in September 2010, his direct relationship with AAPCO ceased. As a matter of company policy, AAPCO only subcontracted work to contractors carrying liability and workers' compensation insurance. Blair, however, was permitted to continue working on AAPCO projects so long as he "work[ed] with someone else" who was properly insured.
Blair subsequently pursued that option. At first, Blair worked for his stepson, who "had all the licenses and insurances to work for [AAPCO]." Under his stepson's company's name, Blair resumed subcontracting with AAPCO. Just as before, AAPCO contacted Blair directly with available roofing projects; but, when those projects were completed, AAPCO issued a check for the completed work to Blair's stepson, who then paid Blair.
Blair later entered into a similar arrangement with Ronnie Jenkins. Jenkins testified that he made the arrangement with Blair at AAPCO's request. As Jenkins understood the situation, "[Blair] had some issues with paperwork" and AAPCO needed Blair "to do a couple jobs in [Jenkins'] name until [Blair and AAPCO] got [the issue] straight in [AAPCO's] system."Jenkins testified that he never directed Blair's work, visited Blair's jobsites, inspected Blair's work, or agreed to provide workers' compensation insurance for Blair.
As was the case when Blair worked under his stepson, AAPCO contacted Blair directly about available roofing projects. Blair explained that Jenkins did not "know that a job was started or finished until he [received] a check" from AAPCO. Under their arrangement, Jenkins retained ten percent of every check AAPCO paid for work Blair performed. Jenkins testified that he was taxed "for every dollar that . . . [was] in [his] name," including Blair's work, and that he retained ten percent of Blair's pay to cover such taxes. Jenkins testified that he "didn't profit from" the ten percent he retained from each of Blair's checks. Jenkins delivered the remaining cash value of every check to Blair.
AAPCO characterizes Jenkins' arrangement with Blair in a different light. Marvin Cravin, AAPCO's production manager at the time Blair began working under Jenkins' name, testified that Jenkins agreed to provide the insurance Blair needed to continue his construction work with AAPCO. Indeed, Cravin testified that before AAPCO permitted Blair to work under Jenkins' name, AAPCO required Jenkins to submit a certificate of insurance. Cravin described the certificate as permitting "[Blair] to do jobs" and for "[Jenkins] to have as many crews as he wanted, under his insurance, under his name, that could work on [AAPCO] jobs." Cravin added that, while he did not "know what the figures were," Jenkins kept "a percentage of [each check]" to cover the costs of insuring Blair. Accordingly, Cravin testified that AAPCO considered Blair an employee of Jenkins, and not an AAPCO subcontractor.
Blair similarly described his arrangement with Jenkins. Blair testified that "[Jenkins] was going to supply the . . . insurance and [Blair] would do the work." Blair further testified that he "maybe" considered himself Jenkins' employee, but added that Jenkins did not pay him benefits, place him on the company payroll, or supervise him in any way. Blair also reaffirmed thatAAPCO contacted him directly about potential roofing jobs, noting that Jenkins first learned of completed projects upon receipt of a check from AAPCO.
For the job at issue in this case (herein referred to as the "Lane Project"), AAPCO contacted Blair directly because the project was "primarily a roofing job." AAPCO's "crew sheet" for the Lane Project, which identified the crews assigned to the project, listed both Blair and Jenkins. But Bill Bartone, an AAPCO production manager, testified that he knew that Blair would perform the work because Jenkins did not perform roofing work "at that point." Indeed, Bartone testified that it was a "fair assumption" that he included Blair's name on the crew sheet to distinguish it from work performed by Jenkins. Moreover, in a separate AAPCO form, Bartone identified the crew on the Lane Project as Blair's.
Claimant began working for Blair approximately six months before suffering his work-related injuries. His job duties at that time included roofing and carpentry work. On the day of his injury, claimant rode to the jobsite with Blair, used tools Blair provided, and received instruction from Blair regarding what tasks to complete. Specifically, Blair instructed claimant to "remove the old roof" and then "put the new one on."
Claimant testified that he was placing new shingles on the roof when the accident occurred. He does not recall what caused him to fall from the roof. Claimant only recalls "react[ing]" after "[he] was already at the hospital." Claimant did testify, however, that there was nothing unique about the roof compared to those on which he normally worked.
Wilson Pacheco worked with claimant on the Lane Project, helping to remove "the [old] shingles" and preparing to re-shingle the roof. Pacheco was standing approximately eight feet from claimant when claimant fell from the roof. Through his interpreter, Pacheco testified about claimant's accident. At times in his testimony, Pacheco seemed to suggest that he observed claimant fall from the roof, but that he did not observe what caused claimant to fall.
Q. [S]o you heard a slide?
A. Yes.
Q. What, what did you, could you describe what you heard?
A. I didn't, his, I heard how he screamed when he falled [sic].
However, at other times during his testimony, Pacheco stated unequivocally that he observed claimant slip while working on the roof.
Q. [B]ut you could see the accident happen?
A. Yes, he only just slid down and fall [sic].
Q. Okay. So you saw him, you saw him fall?
* * * * * * *
A. Yes.
Q. But you heard him scream?
A. When he falled [sic], yes.
Q. Is that what caused you to turn around?
A. No I saw him, I saw him (unintelligible). I saw him when he slipped . . . .
Pacheco also testified in greater detail about what caused claimant to fall. Pacheco described how claimant slipped and "lost his balance" while trying to "put the shingles [down]." Pacheco testified that he "was sure [claimant] slipped" because "[Pacheco] could see in theshingle where [claimant] slipped," i.e., Pacheco "could see" where claimant's shoe "rubbed off" or scuffed the shingle. Pacheco added that claimant "wanted to hang on," but claimant did not have anything to hang onto because the men were not given a harness.
As a result of his fall, claimant suffered a concussion and lacerations to his head and right arm. Shortly thereafter, claimant filed a claim for benefits naming AAPCO as his employer.
The deputy commissioner held a hearing on claimant's claim for benefits on November 2, 2012. AAPCO, Jenkins, and Blair were joined as defendants in that case. Because Blair did not have workers' compensation insurance, the Uninsured Employer's Fund was also made a party to the action. AAPCO and Jenkins both raised as a defense against the claim that claimant's injury did not arise out of or in the course of his employment. AAPCO also raised as a defense that Jenkins was claimant's "initial statutory employer" and thus liable for any compensable injury suffered by claimant. Jenkins denied AAPCO's contention.
On March 4, 2012, the deputy commissioner entered an award of temporary total disability benefits for claimant. The deputy commissioner reasoned that, although claimant could not recall what caused him to fall, Pacheco's testimony - that claimant slipped on a shingle while in the process of re-shingling a roof - "provided the evidence necessary to prove that . . . claimant's accident arose out of his employment" with Blair.
The deputy commissioner also concluded that Blair was "effectively a subcontractor of AAPCO." In reaching that finding, the deputy commissioner concluded that all of the parties - Blair, Jenkins, and AAPCO - understood that Blair would...
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