Kenneth R. Wood v. Kenneth R. Wood, Sole Prop., etc ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
KENNETH R. WOOD
MEMORANDUM OPINION * BY
v. Record No. 0470-99-3 JUDGE JAMES W. BENTON, JR.
DECEMBER 7, 1999
KENNETH R. WOOD, SOLE PROPRIETOR,
t/a KRW TRUCKING,
COMMERCIAL UNION INSURANCE COMPANY,
NORTH AND SOUTH LINES, INC. AND
LEGION INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Roger A. Ritchie, Jr. (Roger Ritchie &
Partners, P.L.C., on brief), for appellant.
James G. Muncie, Jr. (Midkiff & Hiner, P.C.,
on brief), for appellees Kenneth R. Wood, t/a
KRW Trucking and Commercial Union Insurance
Company.
Nancy C. Auth (Mark S. Davis; Carr & Porter,
L.L.C., on brief), for appellees North and
South Lines, Inc. and Legion Insurance
Company.
The Workers' Compensation Commission ruled that Kenneth R.
Wood sustained a compensable injury by accident on February 16,
1997. Wood and KRW Trucking contend, however, that the commission
erred in finding that on the day of Wood's injury he was employed
by KRW Trucking, not by North and South Lines, Inc. Wood further
contends the commission erred in finding that he was not a
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
statutory employee of North and South and that his employments
with KRW Trucking and North and South Lines were dissimilar for
purposes of calculating his average weekly wage. For the reasons
that follow, we affirm the commission's award.
I.
Our standard of review is well established.
We do not retry the facts before the
Commission nor do we review the weight,
preponderance of the evidence, or the
credibility of witnesses. If there is
evidence or reasonable inference that can be
drawn from the evidence to support the
Commission's findings, they will not be
disturbed by this Court on appeal, even
though there is evidence in the record to
support contrary findings of fact.
Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d
507, 510-11 (1983). Thus, on appeal, we are required to view
the evidence in the light most favorable to the party who
prevailed at the commission. See Crisp v. Brown's Tysons Corner
Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
So viewed, the evidence proved that North and South is
engaged in the business of transporting freight by motor
vehicles. It owns tractors and trailers for hauling freight and
occasionally leases equipment for use in its business. Wood was
hired by North and South in 1991 as a truck driver. As a
driver, Wood was paid a fixed rate for each mile he drove the
truck. In 1994, North and South changed Wood's employment from
truck driver to dispatcher. As a dispatcher, Wood "spen[t] a
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considerable amount of time on the telephone talking to drivers,
solving problems, taking orders from customers, and assigning
loads" for all North and South trucks and other trucks leased to
North and South. He had a predetermined work schedule and was
paid a salary.
Shortly after becoming a dispatcher, Wood purchased a
truck, hired a driver, and began operating an entity known as
KRW Trucking. In that capacity, he entered into a contract with
North and South to lease his truck to North and South for a
specified rate per mile plus other costs. Although Wood hired
and fired KRW Trucking's drivers, North and South interviewed
those drivers and gave them drug tests. Under the lease
agreement, Wood had the responsibility to provide proof that his
drivers met all federal and state regulations and criteria.
Pursuant to Department of Transportation rules and regulations,
however, North and South maintained documents regarding all
drivers, including drivers of trucks it leased. KRW Trucking
had employed only two drivers, both of whom were paid by Wood.
North and South did not pay KRW Trucking's drivers.
In February 1997, Wood was still employed by North and
South as one of several dispatchers. The evidence also proved
that on several weekends in 1997, when Wood was not expected to
be on duty as a dispatcher, he drove North and South trucks to
earn extra money. When he drove the trucks, he was paid by
North and South a fixed rate per each mile he drove the truck.
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He received this pay in addition to his salary for work he
performed as dispatcher.
On February 16, 1997, Wood was on vacation leave from his
employment as a dispatcher at North and South. By prior
arrangement, he was in North and South's garage "to work on [KRW
Trucking's] truck" and to make cosmetic repairs, such as sanding
and priming in preparation for painting. Wood testified that
KRW Trucking has no garage or repair shop and that he was
repairing the truck in North and South's garage because North
and South allowed him to use the garage as a courtesy to him.
Wood performed no mechanical repair work for North and South.
After working on the truck, Wood swept and cleaned the area
he had used. He then turned off the lights, stepped on a roller
as he walked away, and fell. Wood injured his shoulder when he
hit the floor.
The commission found that Wood's injury did not arise out
of or in the course of his employment with North and South.
Therefore, the commission awarded Wood compensation against KRW
Trucking and ruled that his average weekly wage was to be
computed using only his earnings from KRW Trucking.
II.
To recover compensation, Wood bore the burden of proving
that his injury arose out of and in the course of his
employment. See Code § 65.2-101; Metcalf v. A.M. Express Moving
Systems, Inc., 230 Va. 464, 467, 339 S.E.2d 177, 179 (1986).
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Where the evidence establishes merely a "relationship of
reciprocal gratuity, . . . involving no specific employment
obligations, . . . and no right of control over the performance
of claimant's work," the evidence fails to establish employment.
Behrensen v. Whitaker, 10 Va. App. 364, 367, 392 S.E.2d 508, 510
(1990).
The commission found as follows:
Both [Wood] and North and South perceived
that there was an oral contract in existence
for KRW [Trucking] to buy the truck at the
time that [Wood] was performing cosmetic
repairs on February 16, 1997. This is
consistent with the fact that [Wood] asked
for time off from work with North and South
and his performing repairs on the truck that
KRW [Trucking] was purchasing, an activity
he never performed for North and South but
did routinely perform for KRW [Trucking].
This shows [Wood] believed that the truck
was his, as did North and South. [Wood]
perceived that KRW [Trucking] was a separate
entity than North and South, as did North
and South. We find that the evidence
supports their beliefs and also supports the
Deputy Commissioner's finding that [Wood]
had two distinct jobs and that he was acting
as an employee of KRW [Trucking] at the time
of his accident.
The evidence supports these findings because the evidence
clearly proved that KRW Trucking and North and South Lines, Inc.
were two distinct business entities. Wood was the sole owner
and an employee of KRW Trucking. Separate from his status as
owner of KRW Trucking, Wood was also employed by North and South
as a dispatcher. On February 16, however, Wood had obtained
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vacation leave from North and South and was working on a truck
KRW Trucking had agreed to purchase from North and South.
The evidence also proved that North and South had removed
the truck from its use. Wood testified that the truck "was
property owned by KRW Trucking and was . . . to be utilized for
[KRW Trucking] business." North and South did not employ Wood
as a mechanic and did not pay him for the work he performed on
his truck. Indeed, Wood has never been employed by North and
South to perform mechanical work.
Proof that North and South gratuitously allowed Wood to use
its garage to make cosmetic repairs on a truck that KRW Trucking
had agreed to purchase and considered its own was insufficient
to prove Wood was employed at that time by North and South.
Wood was on vacation leave from his employment with North and
South, was not conducting the affairs of North and South, and
was not paid by North and South. Thus, credible evidence proved
Wood was solely employed by KRW Trucking when he suffered his
injury. Accordingly, we affirm the commission's ruling that he
was.
III.
Wood also contends that the evidence proved he was a
statutory employee of North and South. We disagree.
In pertinent part, Code § 65.2-302 provides as follows:
When any person (referred to in this section
as "owner") undertakes to perform or execute
any work which is a part of his trade,
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business or occupation and contracts with
any other person (referred to in this
section as "subcontractor") for the
execution or performance by or under such
subcontractor of the whole or any part of
the work undertaken by such owner, the owner
shall be liable to pay to any worker
employed in the work any compensation under
this title which he would have been liable
to pay if the worker had been immediately
employed by him.
As the Supreme Court held in Intermodal Services, Inc. v.
Smith, 234 Va. 596, 364 S.E.2d 221 (1988), the purpose of this
statute is to insure compensation coverage for employees of
independent contractors and subcontractors, but "not the
subcontractor himself." Id. at 603, 364 S.E.2d at 225. Thus,
the commission did not err in ruling that Wood was not a
statutory employee of North and South.
IV.
"[T]he [dissimilar employment] rule is alive and well in
workers' compensation law." Uninsured Employer's Fund v.
Thrush, 255 Va. 14, 21, 496 S.E.2d 57, 60 (1998).
In determining whether two jobs are
"substantially similar," we look to the
following: (1) "the duties and skills" of
each job, and (2) "the primary mission" of
the employee on each job. [Frederick Fire
and Rescue v. ]Dodson, 20 Va. App. [440,]
444-45, 457 S.E.2d [783,] 785 [(1995)]. "In
every situation where the commission is
asked to determine whether two or more jobs
are substantially similar, the commission
must consider not only the particular duties
of each job, but also the general nature or
type of employment of the two jobs."
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Mercy Tidewater Ambulance v. Carpenter, 29 Va. App. 218, 224,
511 S.E.2d 418, 421 (1999) (quoting Creedle Sales Co. v.
Edmonds, 24 Va. App. 24, 28, 480 S.E.2d 123, 125 (1997)).
Credible evidence in the record supports the commission's
findings "that the only common skill [Wood employed for both TRW
Trucking and North and South] was that of driving, . . . that
[this common skill] was performed only infrequently for North
and South . . . [, and that] the other skills did not overlap in
the two employments." Wood's primary employment with North and
South was dispatching the trucks to and from various
destinations in service of North and South's customers. His
employment with KRW Trucking did not include that function.
Thus, his duties with both entities were so unrelated that we
cannot say the commission erred in concluding they were not
substantially similar.
For these reasons, we affirm the commission's award.
Affirmed.
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