Hoffman v. Carter
| Decision Date | 14 August 2007 |
| Docket Number | Record No. 2839-06-2.,Record No. 2828-06-2. |
| Citation | 50 Va. App. 199,648 S.E.2d 318 |
| Parties | Aaron A. HOFFMAN, t/a Hoffman Construction Company v. James Milton CARTER, Jr. Uninsured Employer's Fund v. James Milton Carter, Jr. |
| Court | Virginia Court of Appeals |
Irving M. Blank (ParisBlank LLP, on brief), Richmond, for appellant Aaron A. Hoffman, t/a Hoffman Construction Company.
Kathryn Spruill Lingle (Midkiff, Muncie & Ross, P.C., on brief), Richmond, for appellant Uninsured Employer's Fund.
Jamie L. Karek (Geoffrey R. McDonald & Associates, P.C., on briefs), Richmond, for appellee.
Present HUMPHREYS, CLEMENTS and McCLANAHAN, JJ.
HUMPHREYS,
In these consolidated appeals, Aaron A. Hoffman, t/a Hoffman Construction Company ("Hoffman"), and the Uninsured Employer's Fund ("the Fund") appeal the Virginia Workers' Compensation Commission's award of temporary total disability benefits to James M. Carter, Jr. ("Carter"). Hoffman and the Fund argue that (1) Hoffman is not subject to the Virginia Workers' Compensation Act ("the Act") because it regularly employs fewer than three employees, (2) Carter did not sustain a compensable injury by accident, and (3) Carter is not disabled. For the following reasons, we affirm the commission's findings that Hoffman was subject to the Act and that Carter sustained a compensable injury by accident, but we reverse the commission's finding that Carter suffered a continuing disability.
On appeal, we view the evidence in the light most favorable to Carter, the party prevailing below. See R.G. Moore Bldg Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990). So viewed, the evidence established the following:
A. Carter's Exposure to Dust
On June 30, 2005, Carter was performing demolition work on plaster walls inside a house in Weems, Virginia. Carter worked as a laborer and carpenter's apprentice for Hoffman at the time and had done so for approximately one year. One window and at least two doors were open, and a fan was operating as well.1 Nevertheless, when Carter and his co-worker Barry Fletcher ("Fletcher") began to tear down the walls, "it got really cloudy in [the house] from the dust," because "the stuff was really thick in the air." Although respiratory masks were available, Carter chose not to wear one. After working three to four hours, Carter noticed "a lot of dust and stuff in [his] nostrils[,]" and he began "coughing the stuff up pretty much." The following day, Carter continued "coughing up [] milky phlegm[,]" and left work at 1:00 p.m.
Carter was unable to speak with his doctor's office until the following Tuesday, when he learned that they would require an $85 payment for a consultation. Unable to make this payment, Carter went to the emergency room at Rappahannock General Hospital on July 6, 2005, where he saw Dr. Virginia Gale ("Gale"). Gale noted a normal chest x-ray, prescribed medications, and reported that Carter had experienced "shortness of breath and coughing for the last five days" after being exposed to plaster walls and asbestos.2 Gale also noted that Carter had coughed up sputum, sometimes tinged with blood, for the past several days and that Carter experienced chest pains, which worsened when Carter breathed or coughed. Gale attributed Carter's condition to "chemical inhalation," and recommended that he take five days off work.
Carter again saw Gale on July 13, 2005. Gale noted a second normal chest x-ray, advised Carter to take an additional five days off from work, and suggested Carter follow up by seeing his family doctor, as well as a pulmonary consultant.
Carter next sought treatment at the Northern Neck Free Health Clinic ("the Clinic") on July 21, 2005. Carter again complained of a severe cough, stating that he sometimes coughed up blood-tinged phlegm. The treating physician noted exposure to asbestos, plaster, and sheet rock, and diagnosed chemical pneumonitis. Feeling no improvement, Carter returned to the Clinic on August 4, 2005. The Clinic excused Carter from work throughout this period. The Clinic continued to excuse Carter from work until a subsequent visit on May 2, 2006, in which Clinic personnel recommended in writing: "No work until condition resolves (may be permanent)."3 Carter's medical records last indicate that he received a medical examination on August 23, 2005. The last entry in Carter's records was made on August 24, 2005, indicating that Clinic staff reviewed Carter's records on that date.
Nurse practitioner Christina Slavin ("Slavin") of the Clinic stated on a questionnaire dated December 12, 2005 that Carter's respiratory condition was "possibly" caused by the incident on June 30, 2005, but a pulmonary consultation was necessary to be certain.4 She also confirmed his inability to work. Gale opined in a written statement dated February 17, 2006, that "from all of the information presented to [her], it certainly seems that [Carter's] condition was caused by the work situation."
Hoffman hired a physician named Dr. Michael D. Mandel ("Mandel") to review Carter's medical records and provide a written opinion of Carter's condition. Mandel concluded that it was impossible to diagnose Carter with chemical pneumonitis based on the information available to his treating physicians at the time. Mandel stated that a pulmonologist would need to perform more tests in order to properly make this diagnosis. Mandel further concluded that based on Carter's normal chest x-rays, and the negative results of other tests done in the emergency room, Carter in fact did not have chemical pneumonitis.
B. Hoffman's Employment Practice
Dennis Bebe ("Bebe") was Carter's supervisor at the Weems job site on June 30, 2005, and Carter worked with Bebe "every day from the time [he] began." Hoffman was also present at the site on most days during Carter's employment. Martin Ward ("Ward"), another carpenter's helper, worked for Hoffman as an employee during the month of June 2005. During Ward's employment, Hoffman hired three subcontractors, "so it was a total of [] eight people."5 At the time of the incident on June 30, 2005, Fletcher, Carter's co-worker, had worked for Hoffman for approximately eight months.
Bebe described himself as a freelance carpenter who frequently works for Hoffman Construction. Hoffman described Bebe as an independent contractor, not his employee.
C. Procedural History
Carter filed a claim for workers' compensation benefits with the commission. Hoffman filed numerous defenses, including: (1) Hoffman was not subject to the Workers' Compensation Act because it did not regularly employ three or more individuals, (2) Carter did not sustain a compensable injury by accident, and (3) Carter was not disabled. Because Hoffman did not carry workers' compensation insurance, the Fund joined with Hoffman and asserted the same defenses against Carter. The presiding deputy commissioner rejected Hoffman and the Fund's defenses, and awarded Carter temporary total disability benefits from July 6, 2005 through February 28, 2006, and beginning May 2, 2006, continuing until Carter's condition improves. The full commission, by opinion dated October 20, 2006, affirmed the deputy commissioner's decision. Hoffman and the Fund now appeal.
Hoffman and the Fund argue, as they did to the commission, that (1) Hoffman is not subject to the Workers' Compensation Act because it does not regularly keep three or more employees in its service, (2) Carter did not sustain a compensable injury by accident, and (3) Carter is not disabled.
In reviewing a judgment of the Workers' Compensation Commission, we "`determine whether credible evidence supports the [c]ommission's finding . . . and, if such evidence exists, [we] sustain the finding.'" Perry v. Delisle, 46 Va.App. 57, 63-64, 615 S.E.2d 492, 495 (2005) (en banc) (quoting Celanese Fibers Co. v. Johnson, 229 Va. 117, 121, 326 S.E.2d 687, 690 (1985)) (omission in original). As a result, "we do not judge the credibility of witnesses or weigh the evidence on appeal." Id. at 64, 615 S.E.2d at 495 (internal quotation marks omitted). Furthermore, we are bound by the commission's factual findings supported by credible evidence, despite the fact that there may be evidence to support a contrary finding. See Watkins v. Halco Eng'g. Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983).
Hoffman and the Fund first argue that Hoffman is not subject to the Act because Hoffman does not regularly keep three or more employees in its service.6
All employers and employees in Virginia are "conclusively presumed to have accepted the provisions of [the Act]." Code § 65.2-300(A). Excluded from this presumption, however, are "[e]mployees of any person, firm, or private corporation . . . that has regularly in service less than three employees in the same business within this Commonwealth. . . ." Code § 65.2-101. In other words, if an employer has three or more employees "regularly in service," it is subject to the Act and responsible for providing workers' compensation benefits to qualifying employees. If an employer has fewer than three employees "regularly in service," it is not subject to the Act and has no obligation to provide its employees with workers' compensation benefits. See id. Therefore, an employer can defeat a claim for workers' compensation if it is able to prove, by a preponderance of the evidence, that it "has regularly in service" fewer than three employees in Virginia. Craddock Moving & Storage Co. v. Settles, 16 Va.App. 1, 3, 427 S.E.2d 428, 430 (1993).
However, we have held that "an employer [who] regularly employs three or more persons to carry out the established mode of performing the work of the business, [] should remain subject to the provisions of the Act even if . . . the number of his employees temporarily falls below three." Cotman v. Green, 4 Va.App., 256, 259, 356 S.E.2d 447, 449 (1987). An employer is considered...
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