Barkley v. State Workmen's Compensation Com'r

• Decision Date: 27 May 1980
• Docket Number: No. 14735,14735
• Citation: 164 W.Va. 777,266 S.E.2d 456
• Court: West Virginia Supreme Court
• Parties: Ruth Madeline BARKLEY v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Reserve Life, Inc.

Page 456

266 S.E.2d 456

164 W.Va. 777

Ruth Madeline BARKLEY v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Reserve Life, Inc.

No. 14735.

Supreme Court of Appeals of West Virginia.

May 27, 1980.

Syllabus by the Court

1. "If the right to control or supervise the work in question is retained by the person for whom the work is being done, the person doing the work is an employee and not an independent contractor, and the determining factor in connection with this matter is not the use of such right of control or supervision but the existence thereof in the person for whom the work is being done." Syl. pt. 3, Myers v. Workmen's Compensation Commissioner, 150 W.Va. 563, 148 S.E.2d 664 (1966).

2. "To ascertain whether a workman is an employee or an independent contractor each case must be resolved on its own facts and ordinarily no one feature of the relationship is controlling, but all must be considered together." Syl. pt. 1, Myers v. Workmen's Compensation Commissioner, 150 W.Va. 563, 148 S.E.2d 664 (1966).

3. "In determining whether one is an employee or an independent contractor within the meaning of the workmen's compensation act, the act must be given a liberal construction in favor of the workman and any doubt is to be resolved in favor of his status as an employee, rather than an independent contractor." Syl. pt. 4, Myers v. Workmen's Compensation Commissioner, 150 W.Va. 563, 148 S.E.2d 664 (1966).

4. This Court will reverse findings of the Appeal Board if they are against a clear preponderance of the evidence.

5. The general rule in this State regarding workmen's compensation claims is that injuries which arise from the ordinary use of streets and highways are not compensable unless the employee's use of the highway in that instance is required in the performance of his duties of employment.

6. " 'This Court will not reverse a finding of fact made by the Workmen's Compensation Appeal Board unless it appears from the proof upon which the appeal board acted that the finding is plainly wrong.' Syllabus, Dunlap v. Workmen's Compensation Commissioner, 152 W.Va. 359 (163 S.E.2d 605)", Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 191 S.E.2d 497 (1972).

Coleman & Wallace, Robert J. Wallace, Buckhannon, for appellant.

Steptoe & Johnson, Carl F. Stucky, Jr., Charleston, for appellee.

CAPLAN, Justice:

In this appeal from a final order of the Workmen's Compensation Appeal Board, the claimant, Ruth Madeline Barkley, challenges the Appeal Board's decision affirming an order of the Workmen's Compensation Commission denying her compensation on the ground she was not injured in the course of her employment.

Until the early part of May 1977 the claimant worked as an office manager for Reserve Life Inc., an insurance company. That status ended on May 31, 1977 and the claimant was to begin work in June as a detached soliciting agent. It was on June 6, while traveling in her car from her home in Bemis to the Petersburg office of Reserve Life that claimant was involved in an automobile accident and sustained the injuries which are the subject of her claim.

The claimant had not intended to work the latter part of May and, having anticipated being on leave for this period, she had, on May 10, spoken with her district manager, Leroy Skiles, about the date of her return to work in June. She recalled Skiles telling her to come to the office in Petersburg on Monday morning, June 6, because there would be a sales drive that day. She testified, however, that she wasn't required to come back on that day but had picked the date herself because her leave had expired. Mr. Skiles' recollection of the May 10 conversation was that no mention was made of a specific return date or of a June 6 sales drive. Rather, he said the plan had been for claimant to let him know when she was ready to return. In fact, he testified that the office was closed on June 6.

The Commissioner initially ruled the claim compensable. The employer protested and after a hearing, the Commissioner reversed his earlier order and denied compensation. Claimant appealed and the Appeal Board concluded ". . . the claimant has failed to establish by proper and satisfactory proof that her injuries were suffered in the course of and as a result of her employment and has failed to establish that she was an employee as contemplated by the West Virginia Code."

In determining whether a workman is an employee or an independent contractor for purposes of workmen's compensation coverage, this State adheres to the "right to control test." The following appears as Point 3 of the Syllabus in Myers v. Workmen's Compensation Commissioner, 150 W.Va. 563, 148 S.E.2d 664 (1966):

"If the right to control or supervise the work in question is retained by the person for whom the work is being done, the person doing the work is an employee and not an independent contractor, and the determining factor in connection with this matter is not the use of such right of control or supervision but the existence thereof in the person for whom the work is being done."

To ascertain whether the right to control exists, each case must be resolved on its own facts. No single feature of the relationship is controlling and all factors must be considered. Syl. pt. 1, Myers, supra.

The record of this case reveals conflicting evidence on the question of whether this claimant was an employee or an independent contractor.

Soliciting agents work exclusively for Reserve Life. The company pays for the renewal of salesmen's licenses, provides free training material and conducts regular meetings for the purpose of instructing them on the proper methods for the performance of their job. Agents are required to report to district offices, and to meet individually and in groups with the manager. Failure to attend meetings or report daily sales activities to the district office results in discharge. All policies are subject to approval by the district office. Agents are paid on a commission basis only, with deductions from renewal checks for social security, federal and state withholding and hospitalization, a portion of which the company pays.

While the foregoing conditions of claimant's employment are generally indicative of employee status, the record also contains evidence consistent with independent contractor status. The company's own definition of a soliciting agent states that the company regards these persons as independent contractors, not employees subject to the right of control, and that the company's only interest is the result, not the manner of performance. Soliciting agents are provided with no offices, are paid no expenses and...