Wade Michael Sheldon v. Spirits Restaurant ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia
WADE MICHAEL SHELDON
MEMORANDUM OPINION *
v. Record No. 0655-98-4 BY JUDGE WILLIAM H. HODGES
JANUARY 12, 1999
SPIRITS RESTAURANT, A/K/A
J.J. NIKITAKIS & COMPANY,
INC. AND VIRGINIA HOSPITALITY
GROUP SELF-INSURANCE ASSOCIATION,
LANDIN, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Peter A. Cerick for appellant.
R. Ferrell Newman (Anne M. Dobson; Thompson,
Smithers, Newman & Wade, on brief), for
appellees.
Wade Michael Sheldon ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that he
was an independent contractor rather than an employee of Spirits
Restaurant ("employer") at the time of his January 14, 1996
injury by accident. Because we find as a matter of law that the
evidence was sufficient to prove that claimant was an employee
rather than an independent contractor, we reverse the
commission's decision.
This appeal does not present a case of
conflicting evidence or a dispute concerning
the commission's findings of fact. When the
issue is the sufficiency of the evidence and
there is no conflict in the evidence, the
issue is purely a question of law. This
Court is not bound by the legal
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
determinations made by the commission. "[W]e
must inquire to determine if the correct
legal conclusion has been reached."
Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416
S.E.2d 708, 711 (1992) (quoting City of Norfolk v. Bennett, 205
Va. 877, 880, 140 S.E.2d 655, 657 (1965)) (other citations
omitted), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993).
James Nikitakis testified that he is the president of a
corporation which runs a restaurant business, including the
Grapevine Restaurant. The building which houses the Grapevine
Restaurant and some attached apartments was damaged by fire and
smoke. Nikitakis directed Johnnie Green to oversee and complete
the renovation and repair of the building. Green worked for
Nikitakis as a salaried employee, managing some of the
corporation's restaurants and performing maintenance and
renovation work. Green and his helper, Scotty Cox, began
performing the repair work on the apartments.
Shortly thereafter, claimant, an experienced carpenter,
sought work from Nikitakis. Nikitakis sent claimant to talk to
Green about working on the repair and renovation job. Claimant
stated that he went to the worksite and that Green organized what
he wanted claimant to do. Claimant's primary duties involved
installing a window and a closet. Claimant also helped to change
sheet rock and assisted the electrician. Green showed claimant
how he wanted the window installed with pressure treated wood up
against the brick and then trimmed with 1 x 1's on the outside
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and framed. Green also told claimant how he wanted some old
doors put in a closet. At times, Nikitakis was present on the
jobsite and gave instructions to Green and claimant. Upon
completion of the job, if no more work was available, claimant
would have sought work elsewhere. Claimant was paid $13 per hour
with no taxes withheld, as had been the practice when he had
worked for Nikitakis in the past. Claimant did not receive a W-2
Form or a 1099 Form.
Green testified that he gave claimant instructions on the
material to use for the window sill and the trim. Green told
claimant how he wanted the window to look when completed.
Nikitakis provided the materials for the job, but claimant
furnished his own tools. Green viewed himself as claimant's
supervisor. Nikitakis would have made any decision regarding
whether to fire claimant.
Claimant and Green stated that their work hours were set by
Green. Green had a key to the building and provided claimant
with access into the building at the start of the workday.
Claimant stayed on the job until Green locked up and left at the
end of the day. Green also decided when he and claimant took a
break or had lunch.
It was undisputed that on January 14, 1996, claimant
sustained a near amputation of his left thumb while working on
the repair and renovation of the apartments.
Generally, an individual "'is an employee if he works for
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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. The power of control is the most significant indicium
of the employment relationship.'" Behrensen v. Whitaker, 10 Va.
App. 364, 367, 392 S.E.2d 508, 509-10 (1990) (quoting Richmond
Newspapers, Inc. v. Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843
(1982)). See also Stover v. Ratliff, 221 Va. 509, 512, 272
S.E.2d 40, 42 (1980). The employer-employee relationship exists
if the power to control includes not only the result to be
accomplished, but also the means and methods by which the result
is to be accomplished. See Behrensen, 10 Va. App. at 367, 392
S.E.2d at 510. However, "'it is not the actual exercise of
[this] 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, 226 (1993) (quoting Hann v.
Times-Dispatch Publ'g Co., 166 Va. 102, 106, 184 S.E. 183, 185
(1936)).
It was undisputed that employer paid claimant wages by the
hour and reserved the power to fire him. When employer hired
claimant, Nikitakis did not negotiate with claimant for him to
perform the job. Rather, Nikitakis told claimant to report to
Green, who then gave claimant instructions and supervised
claimant on the job. Green provided access to the jobsite for
claimant. Green set claimant's work hours and break times.
Green instructed claimant on how he wanted the window and closet
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completed, and Nikitakis provided the materials.
The testimony of claimant, Green, and Nikitakis was
sufficient to prove as a matter of law that employer retained the
right to control "the means and methods" by which claimant
performed his work. "[W]ithout rejecting the testimony before
it, the commission could not have concluded that [claimant] was
an independent contractor. Because the commission did not reject
the testimony, we must conclude that its decision rests upon the
incorrect conclusions of law it expressed and that it erred in
denying [claimant] compensation." Id. at 758, 427 S.E.2d at 226.
For these reasons, the commission's decision is reversed.
Reversed.
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