Uninsured Employer's Fund v. Jeffreys
| Decision Date | 26 April 2016 |
| Docket Number | Record No. 1676-15-3 |
| Court | Virginia Court of Appeals |
| Parties | THE UNINSURED EMPLOYER'S FUND v. CHARLIE JEFFREYS |
UNPUBLISHED
Present: Judges Petty, O'Brien and AtLee
Argued at Lexington, Virginia
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Matthew J. Griffin (David A. Obuchowicz; Midkiff, Muncie & Ross, P.C., on briefs), for appellant.
James B. Feinman (James B. Feinman & Associates, on brief), for appellee.
The Uninsured Employer's Fund ("the Fund") appeals a decision of the Workers' Compensation Commission awarding benefits to Charlie Jeffreys ("claimant"). The Fund argues that: (1) The Commission erred when it found that the Fund waived its argument that claimant was not an employee of Missionary Baptist Church, or any other named defendant, even though the Fund timely filed a request for review and written statement, which both explicitly asked the Commission to find that claimant was not an employee of any named defendant; (2) the Commission erred when it declined to address the issue of whether William Johnson was an independent contractor, even though the Fund explicitly argued that William Johnson was an independent contractor; (3) the Commission erred when it found that claimant was an employee of Mount Lebanon Missionary Baptist Church, or any other named defendant, despite the fact that there was no evidence that any of those defendants ever contacted or instructed claimant in any way over the course of his job performance; (4) the Commission erred when it found thatclaimant was not an independent contractor; and (5) the Commission erred when it held that the Fund waived and abandoned any argument that claimant was not a statutory employee of Missionary Baptist Church or any other named defendant and that the Church was not involved in the trade, business, or occupation of construction. Claimant submits an assignment of cross-error asserting that the Commission erred in finding Annie Mosby was not an employer of claimant.
Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite below only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
On October 31, 2012, claimant was injured while helping to reconstruct the Harvey Colored School building on Annie Mosby's land. The evidence established that the school building itself was owned by Mosby. Mosby was President of the Harvey School Historical Society, an organization with the goal of restoring the school. In 2003, the Historical Society became an auxiliary of Mount Lebanon Missionary Baptist Church.
On January 15, 2014, claimant filed a claim for benefits, naming the Historical Society of Mount Lebanon Baptist Church as employer. On August 27, 2014, another claim for benefits was filed, adding Mosby and the Church itself as employers. A hearing before the deputy commissioner was held on May 7, 2015. The Uninsured Employer's Fund defended the claim, arguing, among other things, that claimant was an independent contractor rather than an employee of the named defendants. On June 17, 2015, the deputy commissioner issued an opinion, finding that claimant was an employee and not an independent contractor because another construction worker, William Jerome Johnson, had hired claimant and was in charge onthe jobsite. The deputy commissioner nevertheless found that Mosby was claimant's employer because Johnson had to receive permission from Mosby to hire claimant and Mosby provided funds for wages and supplies. Moreover, the deputy commissioner found that Mosby was acting as an agent for the Historical Society, which was a part of the Church. Therefore, the deputy commissioner ultimately found that the Church was claimant's employer. An award for claimant was entered against the Church, to be paid by the Fund if not satisfied.
The Fund filed a request for review, alleging seven assignments of error, and an accompanying written statement. In its review opinion, the Commission reversed the deputy commissioner's finding that Mosby was claimant's employer, but affirmed the finding that the Church was claimant's employer on the grounds that that determination had not been appealed. The Fund filed a request for reconsideration, which the Commission denied. The Fund now appeals.
We first address claimant's assignment of cross-error asserting that the Commission erred in finding that Mosby was not claimant's employer.
"A claimant seeking benefits under the Workers' Compensation Act bears the burden of establishing that he is an employee as that term is defined in Code § 65.2-101." Creative Designs Tattooing Assocs. v. Estate of Parrish, 56 Va. App. 299, 307, 693 S.E.2d 303, 307 (2010). "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." Id. (quoting Intermodal Servs., Inc. v. Smith, 234 Va. 596, 600, 364 S.E.2d 221, 224 (1988)). "The determination as to whether an individual is an employee, or an independent contractor, accordingly, 'involves a mixed question of law and fact which is reviewable on appeal.'" Id. at 308, 693 S.E.2d at 308(quoting Cty. of Spotsylvania v. Walker, 25 Va. App. 224, 230, 487 S.E.2d 274, 276 (1997)). On appeal, legal questions are subject to de novo review. Rusty's Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999) (en banc). However, factual findings made by the Commission are binding on this Court if supported by evidence. Id.
"Whether the existing status is that of an employee or an independent contractor is governed, not by any express provision of the workmen's compensation law, but by common law." Creative Designs, 56 Va. App. 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)). Id. (quoting Hann, 166 Va. at 105-06, 184 S.E. at 184).
"Generally, 'a person is an employee if he works for wages or a salary and the person who hires him reserves the power to fire him and the power to exercise control over the work to be performed.'" Intermodal, 234 Va. at 601, 364 S.E.2d at 224 (quoting Richmond Newspapers v. Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843 (1982)). "The right of control is the determining factor in ascertaining the parties' status in an analysis of an employment relationship." Id.
Richmond Newspapers, 224 Va. at 98, 294 S.E.2d at 843 (emphasis added) (quoting Craig v. Doyle, 179 Va. 526, 531, 19 S.E.2d 675, 677 (1942)).
With these principles in mind, we review the Commission's decision that claimant was not an employee of Mosby.
Claimant argues that the Commission erred because the evidence established that Mosby had the power to control the worksite. Claimant contends that Mosby applied for the building permit, paid for the materials, drove the workers to and from work when she was in town, bought lunch for the workers, paid the workers individually, and instructed the workers to follow building codes.
However, we defer to the Commission's factual findings regarding the relationship between claimant and Mosby. There was abundant evidence to support the Commission's holding that claimant was not an employee of Mosby. Contrary to claimant's assertions, the Commission found that Mosby merely authorized Johnson to reconstruct the school. Mosby lived in California while claimant and Johnson were working on the reconstruction in Virginia. Mosby did not give specific instructions to Johnson on how to reconstruct the school, and Mosby and Johnson did not have regular contact with each other. Mosby provided the money for labor and materials, but Johnson decided what materials were needed and purchased them. Thus, while Mosby prescribed the "result" of the work done—the reconstruction of the school—she did not prescribe the "means and methods" by which that result was to be achieved.
And, despite the fact that Mosby paid claimant for his work, Mosby did not "control the work" or maintain any authority over claimant. Mosby gave Johnson permission to hire a helper on the jobsite, however Mosby did not know claimant's name and she denied having any employees working for her. Claimant never met or spoke to Mosby before the accident. Mosby indirectly paid claimant through her sister, who gave claimant the money. It was Johnson, notMosby, who tracked the hours that claimant was to be paid for, supervised claimant on the jobsite, and told claimant what to do each day.
These facts indicate that although Mosby asked that the schoolhouse be reconstructed, she did not have the power to control the means by which claimant assisted in reconstructing the schoolhouse. Accordingly, we affirm the Commission's decision that claimant was not an employee of Mosby.
Next, we address together the Fund's first and fifth assignments of error, both of which assert that the Commission erred in...
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