Diversified Technology, LLC v. Steve Pancoast ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
DIVERSIFIED TECHNOLOGY, LLC AND
PRINCETON INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 1860-02-1 PER CURIAM
DECEMBER 10, 2002
STEVE PANCOAST
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(S. Vernon Priddy III; Mary Louise Kramer;
Sands Anderson Marks & Miller, on brief), for
appellants.
(Ann K. Sullivan; David N. Payne; Crenshaw,
Ware & Martin, P.L.C., on brief), for
appellee.
Diversified Technology, LLC ("Diversified Technology") and
its insurer contend the Workers' Compensation Commission erred
in finding that Steve Pancoast (claimant) was its employee at
the time of his compensable injury by accident on May 1, 2001.
Upon reviewing the record and the parties' briefs, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. Rule 5A:27. 1
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Diversified Technology raises five Questions Presented in
its brief. However, all of those questions address the sole
issue of whether claimant was Diversified Technology's employee
rather than an independent contractor. Accordingly, on appeal,
we address that sole issue, while taking into account the
various arguments made by Diversified Technology in its brief.
"The Workers' Compensation Act covers employees but not
independent contractors." County of Spotsylvania v. Walker, 25
Va. App. 224, 229, 487 S.E.2d 274, 276 (1997). This distinction
must be determined from the facts of each case, with the burden
upon the person seeking benefits under the Act to prove the
employer/employee relationship contemplated by the Act. Id. at
229-30, 487 S.E.2d at 276; see Code § 65.2-101. Although the
commission's factual findings are binding and conclusive on
appeal, when they are supported by credible evidence, see James
v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d
487, 488 (1989), a "[d]etermination of the [employer/employee]
relationship involves a mixed question of law and fact which is
reviewable on appeal." County of Spotsylvania, 25 Va. App. at
230, 487 S.E.2d at 276.
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.'"
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)).
[T]he right of control includes not only the
power to specify the result to be attained,
but the power to control "the means and
methods by which the result is to be
accomplished." An employer/employee
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relationship exists if the party for whom
the work is to be done has the power to
direct the means and methods by which the
other does the work. "[I]f the latter is
free to adopt such means and methods as he
chooses to accomplish the result, he is not
an employee but an independent contractor."
The extent of the reserved right of control
may be determined by examining the
performance of the parties in the activity
under scrutiny.
Intermodal Servs., Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d
221, 224 (1988) (citations omitted).
In holding that an employee/employer relationship existed
between claimant and Diversified Technology, the commission made
the following findings:
[T]he record established that Diversified
Technologies exercised a significant amount
of control over the claimant to make him an
employee. The Deputy Commissioner believed
the claimant's testimony regarding the means
and methods of the work he performed. This
testimony established that the claimant
worked for the employer, side by side with
[Jon] King at the job sites, and that King
instructed the claimant on the means and
methods of the work to be performed. King
also directed the claimant's work hours.
The claimant did not supply his own tools,
although he did have some of his own. The
evidence showed that King supplied the cable
and the essential tools for the job on which
the claimant worked. The evidence also
showed that King would correct any mistakes
in the work and solve any problems. All of
these factors support the Deputy
Commissioner's conclusion that the claimant
was an employee of Diversified Technologies.
Claimant's testimony constitutes credible evidence to
support the commission's finding that he was Diversified
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Technology's employee rather than an independent contractor. As
fact finder, the commission was entitled to weigh the
credibility of the witnesses, to accept claimant's testimony,
and to reject the contrary testimony of employer's witnesses.
It is well settled that credibility determinations are within
the fact finder's exclusive purview. Goodyear Tire & Rubber Co.
v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).
Claimant's testimony established that he had only limited
experience in the cable industry and that King agreed to provide
claimant with minimal training. Claimant's testimony also
proved that Diversified Technology hired him for an indefinite
period and not for any specific job. Claimant's testimony, as
well as King's testimony, established that Diversified
Technology agreed to pay claimant wages equal to a certain
percentage of the profits realized from the work performed.
Claimant's right to a share of the profits did not necessarily
make him an independent contractor, rather "[i]t merely
constituted the manner of payment and the measure of
compensation for his services . . . ." Jackson v. Haynie's
Adm'r, 106 Va. 365, 368, 56 S.E. 148, 149 (1907). Moreover,
"[p]ayment of wages, alone, is not the determinative factor."
Purvis v. Porter Cabs, Inc., 38 Va. App. 760, 773 n.4, 568
S.E.2d 424, 430 n.4 (2002).
Claimant's testimony also proved that King obtained the
work that he and claimant performed; King instructed claimant as
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to where and when to report for work; King supplied the
essential tools for the job; King obtained the supplies
necessary to complete the job; and King reserved the right to
exercise control over the means and methods by which claimant's
work was ultimately accomplished. Lastly, King admitted in his
deposition testimony that he could have had claimant removed
from the jobsite by the police if claimant did not perform his
assigned duties in a manner that was acceptable to King. 2 Thus,
credible evidence supports the commission's finding that
Diversified Technology exercised the requisite control over
claimant to make him its employee.
Contrary to Diversified Technology's contention, claimant's
work history before he began working for Diversified Technology
and/or his relationship to other entities in the past were not
relevant factors to the commission's determination of claimant's
relationship with Diversified Technology. See Intermodal, 234
Va. at 601, 364 S.E.2d at 224; Behrensen, 10 Va. App. at 367,
392 S.E.2d at 509-10. In addition, Diversified Technology's
assertion that claimant's refusal to sign the "Subcontractor
Agreement" supported an inference that, by his silence, he
acquiesced to the terms of the agreement does not logically
follow. To the contrary, claimant testified that he never read
2
The deputy commissioner admitted the depositions of
claimant and King into evidence at the October 22, 2001 hearing.
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the agreement before his injury and that he had no intention of
signing it. Furthermore,
in the worker's compensation context, the
existence of the master servant
relationship . . . "does not depend upon how
the parties designate each other in their
contract." Rather, the individual's status
in relation to the alleged employer is to be
determined from all the facts and
circumstances adduced by the evidence,
including the provisions of any written
agreement.
Virginia Employment Comm'n v. A.I.M. Corp., 225 Va. 338, 347,
302 S.E.2d 534, 539 (1983) (citations omitted).
For these reasons, we affirm the commission's decision.
Affirmed.
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