The Uninsured Employers' Fund v. John Mayfield etal ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
THE UNINSURED EMPLOYERS' FUND
v. Record No. 0328-95-2 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
JOHN MAYFIELD, NOVEMBER 7, 1995
SCOTT DIXON t/a AMERICAN RETROFIT MANAGEMENT,
ARMADA-HOFFLER CONSTRUCTION COMPANY and
FARMINGTON CASUALTY CO.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Christopher D. Eib, Assistant Attorney General
(James S. Gilmore, III, Attorney General; Richard
L. Walton, Jr., Senior Assistant Attorney General;
John J. Beall, Jr., Senior Assistant Attorney
General, on brief), for appellant.
C. Ervin Reid (Wright, Robinson, McCammon,
Osthimer & Tatum, on brief), for appellees
Armada-Hoffler Construction Company and Farmington
Casualty Co.
No brief or argument for appellees John Mayfield
and Scott Dixon t/a American Retrofit Management.
In this workers' compensation case, the Uninsured Employers'
Fund (Fund) appeals the commission's award of benefits to John
Mayfield (claimant) for injuries suffered while working for
American Retrofit Management (Retrofit), an uninsured sole
proprietorship. The Fund contends that the commission erred in
finding that (1) Retrofit employed regularly in service three or
more employees, and (2) Armada-Hoffler Construction Co. (Armada-
Hoffler) was not liable under the Workers' Compensation Act as
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the statutory employer because claimant did not have a reasonable
excuse for failing to provide Armada-Hoffler with timely notice
of the claim. We affirm the commission's award.
I.
Code § 65.2-101 ("Employee") 2.h excludes from the
definition of employees covered by the Act "[e]mployees of any
person, firm or private corporation, including any public service
corporation, that has regularly in service less than three
employees in the same business within this Commonwealth". In
determining whether the employer has three or more employees
regularly in service, the commission focuses on "the character of
the business" rather than "the character of the employment
relationship." Cotman v. Green, 4 Va. App. 256, 259, 356 S.E.2d
447, 448 (1987). On appeal, this Court will sustain the
commission's findings of fact when supported by credible
evidence, even if the record contains evidence supporting
contrary findings. See Crisp v. Brown's Tysons Corner Dodge,
Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1985).
In the present case, Armada-Hoffler, the general contractor,
subcontracted to Retrofit to remove old pipes from a building
Armada-Hoffler was renovating. The contract was the first and
only job Retrofit performed for Armada-Hoffler. After obtaining
the contract, Retrofit hired two full-time employees to serve as
supervisors and contracted with a personnel agency to provide
temporary laborers. Retrofit paid the personnel agency for the
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laborers and the agency in turn paid the workers as their
employees. Although the temporary laborers were employees of the
personnel agency and the agency chose which workers it sent to
the jobsite, Retrofit could reject any of the workers. Also,
when the laborers were on the job, they were subject to the
control and direction of Retrofit. The agency generally provided
Retrofit with six or seven temporary workers each day.
Credible evidence supports the commission's finding that
Retrofit "required the continuous presence of at least six, and
usually more, employees" to carry out its operations. See
Cotman, 4 Va. App. at 259, 356 S.E.2d at 448 (stating that "[t]he
number of persons used to carry out the established mode of
performing the work of the business is determinative even though
the work may be recurrent instead of constant"). The fact that
the laborers were provided by a personnel agency and paid by the
agency does not prevent their being the employees of Retrofit.
Retrofit's contract was to remove pipes, and the laborers were
required as employees of Retrofit in its usual business to
perform its contract. See Smith v. Hylton, 14 Va. App. 354, 356,
416 S.E.2d 712, 714 (1992); Cotman, 4 Va. App. at 259, 356 S.E.2d
at 448; see also Hoffer Bros. v. Smith, 148 Va. 220, 226, 138
S.E. 474, 476 (1927) (stating that "[t]he test is the nature of
the employment and not the nature of the contract"). Although
the personnel agency paid the laborers' wages, Retrofit paid the
agency based on the number of laborers it used on the job. But
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more significant was Retrofit's ability to control the laborers
on the job, which was in furtherance of the usual business of
Retrofit, and Retrofit's ability to discharge the employees by
rejecting the laborers sent by the agency. The right to control
how a worker performs the job and the right to discharge a worker
are significant indicia in determining whether an employer-
employee relationship exists under the Act. Richmond Newspapers,
Inc. v. Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843 (1982);
Behrensen v. Whitaker, 10 Va. App. 364, 366, 392 S.E.2d 508, 509
(1990); see Code § 65.2-101 ("Employee") 1.a. Accordingly, the
commission did not err in holding that Retrofit regularly
employed in service three or more employees.
II.
An injured employee who fails to notify his employer of an
accident within thirty days of its occurrence is barred from
recovering against that employer unless the commission finds that
the employee had a reasonable excuse for failing to provide
timely notice and that the failure to give timely notice did not
prejudice the employer. Code § 65.2-600(D); C. Richard Bogese
Builder, Inc. v. Robertson, 17 Va. App. 700, 706, 440 S.E.2d 622,
626 (1994). Code § 65.2-600 requires that statutory employers as
well as actual employers receive notice of the claim. Race Fork
Coal Co. v. Turner, 237 Va. 639, 644, 379 S.E.2d 341, 343-44
(1989); Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 896-97,
407 S.E.2d 32, 36 (1991). Here, claimant suffered the injuries
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giving rise to his claim on May 31, 1993, but Armada-Hoffler did
not receive notice of the claim until November 1993. The
commission found that claimant did not have a reasonable excuse
for failing to provide Armada-Hoffler with notice of the claim
within the statutory period.
A claimant can establish a reasonable excuse for failing to
give timely notice if he "can show that he was unaware of the
relationship [between the actual employer and the statutory
employer] and could not reasonably have known of it within the
30-day period." Race Fork, 237 Va. at 644, 379 S.E.2d at 344.
Examples of situations that have been held to be reasonable
excuses include an employee who failed to give the statutory
employer timely notice because the actual employer misled the
employee about the identity of the statutory employer and an
employee who failed to give timely notice because the actual
employer misled him about what actions he had to take to be
compensated for his injuries. See Bogese Builder, 17 Va. App. at
706-07, 440 S.E.2d at 626 (holding that the employee had a
reasonable excuse for failing to provide timely notice because
the actual employer provided the employee with the incorrect name
of the general contractor); Batal Builders, Inc. v. Hi-Tech
Concrete, Inc., 18 Va. App. 401, 405, 444 S.E.2d 555, 557 (1994)
(finding that the actual employer "informed claimant that he was
covered by their insurance policy and that notice to them was all
he had to do to be covered"). In the present case, Retrofit
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informed claimant that it would "take care" of his medical bills.
Retrofit did not indicate that he was covered by their
compensation coverage or would be paid compensation benefits.
There is no evidence that Retrofit misled claimant about the
identity of Armada-Hoffler or made any representations concerning
claimant's coverage under the Workers' Compensation Act.
Moreover, a sign at the jobsite gave notice that Armada-Hoffler
was the general contractor, and Armada-Hoffler maintained an
office at the jobsite. Accordingly, credible evidence supported
the commission's finding that claimant was aware that Armada-
Hoffler was the general contractor on the project. 1 We therefore
affirm the commission's determination that claimant did not have
a reasonable excuse for failing to provide Armada-Hoffler with
timely notice within thirty days of the accident.
Accordingly, we affirm the commission's award.
Affirmed.
1
Although claimant testified before the deputy commissioner
that he became aware that Armada-Hoffler was the general
contractor in the fall of 1993, more than thirty days after the
May 31, 1993 accident, "[t]he fact that there is contrary
evidence in the record is of no consequence if there is credible
evidence to support the commission's finding." Wagner
Enterprises, 12 Va. App. at 894, 407 S.E.2d at 35. This Court
"does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of the
witnesses." Id.
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