W & L Construct., etc. v. Herchel Sullivan ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia
W & L CONSTRUCTION & PAVING, INC.
and PENNSYLVANIA MANUFACTURERS'
ASSOCIATION INSURANCE COMPANY MEMORANDUM OPINION * BY
JUDGE SAM W. COLEMAN III
v. Record No. 2764-96-3 MAY 27, 1997
HERCHEL FRANK SULLIVAN, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James G. Muncie, Jr. (Kathryn Spruill Lingle;
Midkiff & Hiner, P.C., on brief), for
appellants.
Gerald F. Sharp (Browning, Lamie & Sharp,
P.C., on brief), for appellee.
W & L Construction & Paving, Inc. and its insurer appeal the
decision of the Workers' Compensation Commission granting Herchel
Frank Sullivan (claimant) temporary total disability benefits.
The commission held that the claimant was a statutory employee of
W & L Construction and that the claimant was temporarily totally
disabled for psychiatric reasons. Finding no error, we affirm
the commission's decision.
Viewed in the light most favorable to the claimant as the
prevailing party, the evidence established that the claimant was
employed by MMS Trucking at the time of his injury. MMS Trucking
is a trucking company owned and operated by Myra Sullivan, the
claimant's sister-in-law. MMS Trucking owned one dump truck,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
which was driven by the claimant and had one employee, the
claimant. Myra Sullivan negotiated and entered into a contract
with W & L Construction, a general contractor, to haul asphalt
and gravel to various construction job sites.
STATUTORY EMPLOYEE
In order to recover, the claimant had the burden of proving
that he was an employee of MMS Trucking, which was a
subcontractor of W & L Construction. See Craddock Moving &
Storage Co. v. Settles, 16 Va. App. 1, 3, 427 S.E.2d 428, 430
(1993), aff'd, 247 Va. 165, 440 S.E.2d 613 (1994); Code
§ 65.2-302. "'What constitutes an employee is a question of
law'; however, whether a specific person falls within that
definition 'is usually a question of fact.'" Metropolitan
Cleaning Corp. v. Crawley, 14 Va. App. 261, 264, 416 S.E.2d 35,
37 (1992) (en banc) (citation omitted).
In determining whether an individual is an employee, we
consider four elements: 1) selection and engagement of the
servant; 2) payment of wages; 3) power of dismissal; and 4) power
of control of the servant's action. Hamilton Trucking/Hamilton
Terminal Corp. v. Springer, 10 Va. App. 710, 715, 396 S.E.2d 379,
381 (1990) (citation omitted). "[T]he first, second and third of
these elements are not essential to the relationship. . . . The
'power of control' is the most significant element bearing on the
question." Id.; see also Richmond Newspapers, Inc. v. Gill, 224
Va. 92, 98, 294 S.E.2d 840, 843 (1982); Behrensen v. Whitaker, 10
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Va. App. 364, 366-67, 392 S.E.2d 508, 509-10 (1990).
The right of control inherent in an employer
and employee relationship is the power to
control the means and methods by which the
result sought is to be accomplished. An
employer retains power to direct "the means
and methods" by which an employee performs
his or her work. Furthermore, "it is not the
actual exercise of control, but the right to
control," that is determinative.
James v. Wood Prods. of Virginia, 15 Va. App. 754, 757, 427
S.E.2d 224, 225 (1993) (citations omitted).
In this case, the evidence proves that Myra Sullivan had the
right to control the means and methods by which the claimant
performed his work. She delegated the authority and
responsibility for conducting the claimant's day to day duties to
W & L Construction under the contract. The nature of the hauling
contract with W & L Construction made it unnecessary for Ms.
Sullivan to directly control the claimant on a daily basis. Ms.
Sullivan negotiated the contracts for hauling, with the exception
of the occasional weekend hauling for individuals who contacted
the claimant directly. She received all payments for hauling,
both from W & L Construction and from private individuals. The
claimant did not pay for use of the truck, rather, he was paid to
operate it. The fact that he was paid a percentage of the gross
receipts is of no consequence. See Hill City Trucking, Inc. v.
Christian, 5 Va. App. 106, 111, 360 S.E.2d 867, 869 (1987), rev'd
on other grounds, 238 Va. 735, 385 S.E.2d 377 (1989). Ms.
Sullivan withheld all state and federal taxes from the claimant's
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paycheck and paid his Social Security taxes. She was solely
responsible for all maintenance, insurance, and operating
expenses relating to the dump truck. She retained the power to
control the claimant and how he performed his work and as such he
was an employee of MMS Trucking.
Because MMS Trucking did not have three or more regular
employees at the time of claimant's injury, it is not subject to
the Workers' Compensation Act. Code § 65.2-101(2)(h). However,
since MMS was engaged in the same trade, business, or occupation
as W & L Construction, the claimant was a statutory employee of
that corporation. Code § 65.2-302. Thus, the commission did not
err in finding that the claimant was a statutory employee of
W & L Construction.
TOTAL DISABILITY
Upon appellate review, the commission's findings of fact
will be upheld when supported by credible evidence in the record.
Stancill v. Ford Motor Co., 15 Va. App. 154, 158, 421 S.E.2d
872, 874 (1992). Here, the commission found that the claimant
was totally disabled as of February 27, 1996 as a result of
post-traumatic stress disorder and anxiety depressive syndrome.
Dr. McKnight, a psychiatrist who was treating the claimant, and
Dr. Kanwal, an internist, both opined that, while the claimant
had recovered from his physical injury and was physically able to
work, he was totally disabled by the post-traumatic stress
disorder and anxiety depressive disorder caused by the accident.
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This uncontradicted evidence constitutes sufficient credible
evidence for the commission to have found that the claimant was
temporarily totally disabled as a result of the accident.
Accordingly, we affirm the decision of the commission.
Affirmed.
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