Kirtley v. Joel Cooper & Amguard Ins. Co.

• Decision Date: 31 October 2017
• Docket Number: Record No. 0631-17-3
• Parties: ROBERT KIRTLEY, JR. v. JOEL COOPER AND AMGUARD INSURANCE COMPANY
• Court: Virginia Court of Appeals

ROBERT KIRTLEY, JR.
v.
JOEL COOPER AND AMGUARD INSURANCE COMPANY

Record No. 0631-17-3

COURT OF APPEALS OF VIRGINIA

OCTOBER 31, 2017

UNPUBLISHED

Present: Judges Chafin, O'Brien and Malveaux
Argued at Salem, Virginia

MEMORANDUM OPINION^* BY JUDGE MARY GRACE O'BRIEN

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Bradford M. Young (HammondTownsend, PLC, on briefs), for appellant.

Nicholas P. Marrone (Kalbaugh, Pfund & Messersmith, PC, on brief), for appellees.

Robert Kirtley, Jr. ("claimant") appeals a decision by the Workers' Compensation Commission ("the Commission") denying him benefits for a traumatic brain injury he sustained while working at a construction site in October 2014. Claimant asserts the Commission erred in determining that, at the time of the accident, he was an independent contractor, not an employee. We disagree and affirm the Commission's ruling.

Facts

This Court views the evidence in the light most favorable to Joel Cooper and AmGuard Insurance Company, the parties prevailing before the Commission below. See Dillon Constr. & Accident Fund Ins. Co. of Am. v. Carter, 55 Va. App. 426, 428, 686 S.E.2d 542, 543 (2009).¹ So

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viewed, Harrisonburg Townhomes, a general contractor, hired Joel Cooper, a sole proprietor, to work on the construction of seven residential units, known as the Bluestone Project. The project was to be completed in two phases during the summer and fall of 2014: phase one involved framing and roofing three units, and phase two involved framing and roofing the remaining four units.

Cooper hired claimant near the end of the first phase. Claimant, an experienced framer and roofer, brought two employees and his own equipment to work on the project. Cooper did not pay Medicare or payroll taxes for claimant or claimant's employees. Claimant submitted a "Contractor's Invoice" every two weeks, billing for the hours of work that he and his employees completed. Cooper paid claimant a lump sum, from which claimant then paid his employees. Claimant charged fifteen dollars an hour for his employees, paid them eleven dollars an hour, and retained the remaining four dollars for himself. Claimant set his own schedule and would occasionally leave the construction site to work on other jobs.

Prior to the Bluestone Project, claimant worked for Cooper on a separate roofing project. Claimant did not provide his own equipment for that job, nor did he submit invoices for payment. Instead, Cooper recorded claimant's hours and paid him accordingly. In May 2014, claimant left Cooper's employment to start his own business.

Claimant's first task with the Bluestone Project was to shingle a roof. He performed the work without any supervision or direction. During the second phase of the project, claimant usually met with Cooper's foreman, Justin Hannick, each morning to review blueprints and discuss the day's work. Hannick determined the order of task performance and allocated responsibilities. Cooper testified that claimant and Hannick were the most skilled workers on the project and they would jointly decide what construction would be completed each day. Hannick stated that as foreman, he gave "direction to everybody on the jobsite, including [claimant]," but his directions to

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claimant focused on the order of performing tasks. Hannick testified that claimant was a skilled framer who knew how to follow blueprints and was capable of framing walls without supervision or direction.

Cooper testified that although claimant fulfilled his framing tasks independently and did not need supervision, Hannick "had to answer to me, so [Hannick] would probably have more authority." Hannick also explained that although he had the ability to issue corrective instructions to claimant, he only needed to give claimant direction "a couple of times" and never for "anything serious." Cooper stated that he observed claimant advising his own employee how to correctly perform a task and that "I had nothing to do with it."

Analysis

"The Workers' Compensation Act covers employees but not independent contractors." County of Spotsylvania v. Walker, 25 Va. App. 224, 229, 487 S.E.2d 274, 276 (1997). "What constitutes an employee is a question of law; but, whether the facts bring a person within the law's designation, is usually a question of fact." Intermodal Servs., Inc. v. Smith, 234 Va. 596, 600, 364 S.E.2d 221, 224 (1988) (quoting Baker v. Nussman & Cox, 152 Va. 293, 298, 147 S.E. 246, 247 (1929)). Therefore, the decision whether an individual is an employee or an independent contractor "involves a mixed question of law and fact which is reviewable on appeal." Walker, 25 Va. App. at 230, 487 S.E.2d at 276.

The facts underlying the Commission's determination are binding on this Court if credible evidence supports them. See Staton v. Bros. Signal Co., 66 Va. App. 185, 194-95, 783 S.E.2d 539, 543 (2016). Under this standard, "the appellate court does not retry the facts, reweigh . . . the evidence, or make its own determination of the credibility of the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

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Appellant first assigns error to the Commission's determination that he was an independent contractor at the time of the accident. He argues that despite his framing expertise and ability to work unsupervised, Cooper maintained control over him, and therefore he was Cooper's employee.

A person seeking benefits under the Act has the burden of proving he is an employee within the definition of Code § 65.2-101. See Behrensen v. Whitaker, 10 Va. App. 364, 366, 392 S.E.2d 508, 509 (1990). "An independent contractor is not an employee for Act purposes." Creative Designs Tattooing Assocs. v. Estate of Parrish, 56 Va. App. 299, 307, 693 S.E.2d 303, 307 (2010).

A worker's status as either an employee or independent contractor is governed "not by any express provision of the [Act], but by common law." Id. at 308, 693 S.E.2d at 308 (quoting Hann v. Times-Dispatch Pub. Co., 166 Va. 102, 105, 184 S.E. 183, 184 (1936)). The status "must be determined from the facts of the particular case in the light of well settled principles." Hann, 166 Va. at 106, 184 S.E. at 184. The Supreme Court has defined an independent contractor as:

a

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