William L. Casper v. Commercial Interior ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
WILLIAM L. CASPER
MEMORANDUM OPINION *
v. Record No. 3012-97-2 PER CURIAM
MAY 12, 1998
COMMERCIAL INTERIOR CONTRACTING, INC.
AND
NATIONWIDE MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(William L. Casper, pro se, on brief).
(Benjamin J. Trichilo; Trichilo, Bancroft,
McGavin, Horvath & Judkins, on brief), for
appellees.
William L. Casper contends that the Workers' Compensation
Commission erred in finding that he was an independent
contractor. Casper argues that Commercial Interior Contracting,
Inc. was his employer at the time of his June 28, 1995 industrial
accident. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So
viewed, the evidence proved that Casper was a drywall finisher
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
with twenty-eight years of experience. Casper testified that
Commercial hired him to perform "piece work," assigned him a
particular task, and did not supervise his work. Casper provided
his own tools and stilts. Commercial provided ladders and
scaffolding. On June 28, 1995, after completing drywall
finishing work, Casper agreed to perform extra work involving
firetaping on a wall at a height in excess of ten feet. As
Casper was standing on a stepladder positioned on a scaffold, he
fell and injured his left hip and left wrist.
Casper testified that Commercial paid him a flat fee for all
drywall finishing work he performed at a ten foot or lower level.
He also testified that Commercial agreed to pay him by the hour
for the firetaping he agreed to perform on June 28, 1995. Casper
admitted that he filed federal income tax forms as a
self-employed drywall finisher for calendar years 1993 through
1995.
Gary LeBlanc and Stephen Creeden, the co-owners of
Commercial, testified that Casper was hired as a subcontractor on
three small drywall projects in May and June 1995. Although they
directed Casper to the location of the work, they did not
supervise Casper's work in any manner. Commercial paid Casper a
flat fee for each job he completed and paid Casper a total of
$1,200 for his work without deduction for taxes or Social
Security. Commercial issued Casper a federal income tax Form
1099 for all monies paid to him during the calendar year 1995.
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LeBlanc and Creeden testified that on June 28, 1995, Commercial
agreed to pay Casper $450 for drywall finishing work and $50 for
the firetaping work Casper agreed to perform.
"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." Baker v. Nussman, 152 Va. 293, 298,
147 S.E. 246, 247 (1929). Generally, an individual "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. The power of
control is the most significant indicium of the employment
relationship." 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 only if the power to control includes the
result to be accomplished and the means and methods by which the
result is to be accomplished. See Behrensen v. Whitaker, 10 Va.
App. 364, 367, 392 S.E.2d 508, 509-10 (1990). Unless we can say
as a matter of law that Casper's evidence sustained his burden of
proving that he worked for employer as an employee rather than an
independent contractor, the commission's findings are binding and
conclusive upon us. See Tomko v. Michael's Plastering Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In holding that an employee/employer relationship did not
exist between Casper and Commercial, the commission found that
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Casper, an experienced drywall finisher, retained complete
control over the manner in which he performed his work. In
addition, the commission found the testimony of LeBlanc and
Creeden more persuasive than Casper's testimony regarding the
manner in which Commercial paid Casper for the firetaping work.
Based upon this record, the commission could reasonably
conclude that Commercial did not exercise the requisite control
over Casper to make him its employee. In addition, in its role
as fact finder, the commission was entitled to accept the
testimony of LeBlanc and Creeden and to reject Casper's testimony
regarding the manner in which Commercial agreed to pay Casper for
the June 28, 1995 firetaping work. It is well settled that
credibility determinations are within the fact finder's exclusive
purview. See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App.
374, 381, 363 S.E.2d 433, 437 (1987). The record amply supports
the commission's finding that Casper was not an employee under
the Workers' Compensation Act.
For these reasons, we affirm the commission's decision.
Affirmed.
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