Robert Lee Thacker v. TNT Insulations Co. ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia
ROBERT LEE THACKER
MEMORANDUM OPINION* BY
v. Record No. 3111-99-4 JUDGE LARRY G. ELDER
JULY 11, 2000
TNT INSULATIONS COMPANY/ALICE JOAN THACKER AND
HARTFORD UNDERWRITERS INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Elliot P. DeMatteis (Suzanne B. Simpson;
Timothy J. McEvoy; Bean, Kinney & Korman, on
brief), for appellant.
S. Vernon Priddy III (Sands, Anderson,
Marks & Miller, on brief), for appellees.
Robert Thacker (claimant) appeals from a decision of the
Workers' Compensation Commission (commission) holding that he
was an independent contractor and was not entitled to disability
benefits from TNT Insulations Company and its insurer, Hartford
Underwriters Insurance Company. On appeal, he contends the
commission erred in concluding he was not a covered employee
within the meaning of the Workers' Compensation Act (the Act)
and in failing to reach three additional issues mooted by the
commission's ruling on his employee status. TNT includes two
issues for cross-appeal. First, if this Court adopts the deputy
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
commissioner's conclusion that claimant was covered under the
Act as a partner, TNT contends that claimant's lack of timely
notice to the insurer bars his recovery. Second, TNT contends
that the commission wrongly held the Act does not require a
claimant to specify the subsection of Code § 65.2-101 under
which he claims coverage. We hold that, in the absence of an
order from the commission or specific interrogatory from the
employer or insurer under Commission Rules 1.11 or 1.8
respectively, the Act does not require a claimant to specify the
portion of Code § 65.2-101 under which he claims coverage. We
also hold that claimant was an employee under that code section
as a matter of law. Therefore, we reverse the commission's
denial of benefits and remand for further proceedings consistent
with this opinion.
A.
DUTY TO ASSERT BASIS FOR CLAIM OF EMPLOYEE STATUS
As a threshold issue, the insurer contends claimant was
required before the deputy commissioner to specify the
particular subsection of Code § 65.2-101's definition of
employee (1(a) to (q)) under which he claimed employee status.
The commission held that such specification was not necessary,
and we agree. A claimant seeking benefits bears 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). However, nothing in that code section
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or any other portion of the Act requires the employee to elect
the subsection or subsections under which he claims coverage.
All the Act requires is that the claimant's evidence establish
an entitlement to coverage.
Commission Rule 1.11 permits the commission to "require a
prehearing statement by the parties as to the particulars of a
claim and the grounds of defense." Pursuant to Commission Rule
1.8(H), an employer or insurer is free to propound
interrogatories to a claimant seeking the basis for his claim
that he is a covered employee under Code § 65.2-101. However,
nothing in this record indicates that either the commission or
the insurer queried claimant about the subsection or subsections
of Code § 65.2-101 under which he claimed employee status.
Therefore, the commission did not err in holding the deputy
commissioner properly evaluated claimant's status as an employee
under all subsections.
B.
COVERAGE AS EMPLOYEE UNDER CODE § 65.2-101
The Act provides, in relevant part, that an employee
entitled to coverage under the Act includes "[e]very person,
including a minor, in the service of another under any contract
of hire or apprenticeship, written or implied, except . . . one
whose employment is not in the usual course of the trade,
business, occupation or profession of the employer." Code
§ 65.2-101. A claimant seeking benefits under the Act bears the
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burden of proving he is an employee within the definition of
Code § 65.2-101. See Behrensen, 10 Va. App. at 366, 392 S.E.2d
at 509. "'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, 152 Va. 293, 302, 147 S.E.
246, 249 (1929)). The commission's findings of fact on this
issue are binding and conclusive upon us if supported by
credible evidence. See Tomko v. Michael's Plastering Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970). However, if
claimant's evidence proved as a matter of law that he was an
employee of TNT rather than an independent contractor at the
time of his accident, we must reverse. See id."[W]hether a person is an employee or independent
contractor 'is governed not by any express provision of the
[workers'] compensation law, but by the common-law.'" Richmond
Newspapers v. Gill, 224 Va. 92, 97, 294 S.E.2d 840, 843 (1982)
(quoting Hann v. Times-Dispatch Pub. Co., 166 Va. 102, 105, 184
S.E. 183, 184 (1936)). "[F]our elements . . . are considered:
(1) Selection and engagement of the servant; (2) payment of
wages; (3) power of dismissal; and (4) the power of control of
the servant's action." Crowder v. Haymaker, 164 Va. 77, 79, 178
S.E. 803, 804 (1935). The power of control which is
determinative is the power to control not only the result to be
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obtained but also "the means and methods by which the result is
to be accomplished." Gill, 224 Va. at 98, 294 S.E.2d at 843.
If the alleged employee "is free to adopt such means and methods
as he chooses to accomplish the result, he is not an employee
but an independent contractor." Virginia Employment Comm'n v.
A.I.M. Corp., 225 Va. 338, 347, 302 S.E.2d 534, 540 (1983).
"The extent of the reserved right of control," the critical
factor in assessing employee status, "may be determined by
examining the performance of the parties." Smith, 234 Va. at
601, 364 S.E.2d at 224. Where the record fails to establish
that the employer had any right to dictate how claimant would
accomplish the desired result, claimant has failed to meet his
burden of proof. See Stover v. Ratliff, 221 Va. 509, 512, 272
S.E.2d 40, 42 (1980).
Here, although Mrs. Thacker did not, in fact, dictate
precisely how or during what hours claimant was to obtain and
complete insulation jobs, the evidence as a whole establishes
indicia of a retained power of control sufficient to compel the
conclusion that claimant was an employee as a matter of law.
Claimant had no employment contract, placing him in the legal
status of an at-will employee who could be fired at any time for
any reason or no reason. See Gill, 224 Va. at 100, 294 S.E.2d
at 844. That claimant was Mrs. Thacker's husband and perhaps
not likely to have been fired is not dispositive of his legal
status in relation to the company. Further, the commission
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noted the uncontradicted evidence that claimant was paid wages
for his work. TNT withheld taxes from these wages, paid
claimant's workers' compensation premiums and union dues, and
issued claimant a W-2 Form for each tax year.
Finally, the evidence indicated other ways in which TNT
retained control over the means by which the result would be
achieved. Unlike the independent contractor in Gill, who
purchased and delivered newspapers to customers in whatever
manner he saw fit, see 224 Va. at 99, 294 S.E.2d at 844, TNT
provided claimant with a vehicle in which to perform his work,
and TNT, not claimant, insured the vehicle. Unlike Gill, who
bought his own supplies, see 224 Va. at 101, 294 S.E.2d at 845,
claimant purchased supplies in the name of TNT, and the supplies
were charged to TNT's account. Mrs. Thacker included the cost
of these supplies on the Schedule C Statement of Profit and Loss
for the company, which she filed with her income taxes each
year. TNT, via owner Mrs. Thacker, received payment for all
work done by claimant on TNT's behalf, and unlike Gill, 224 Va.
at 99, 294 S.E.2d at 844, the record contains no evidence that
claimant bore any risk of loss from a customer's non-payment.
Finally, claimant testified that when he worked for another
company, he gave the payment he received to Mrs. Thacker for
deposit in the TNT company account.
Although Mrs. Thacker may have been unfamiliar with the
finer details of insulation work, the above evidence belies the
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commission's conclusion that she had no power of control over
the means by which the result sought by the company was to be
accomplished. Her mere inability to exercise certain aspects of
her power based on lack of knowledge is insufficient to rebut
the indicia of retained power demonstrated by the factors
outlined above. Therefore, under the facts of this case, we
hold, as a matter of law, that claimant was an employee within
the meaning of Code § 65.2-101.
Because we hold claimant was a covered employee, we need
not consider the parties' remaining assignments of error. We
reverse the commission's decision denying benefits and remand
for further proceedings consistent with this opinion.
Reversed and remanded.
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