Dog Face Management v. William T. Usher ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
DOG FACE MANAGEMENT, INC.,
t/a TONY ELLIOTT BAND and
ANTHONY D. ELLIOTT
MEMORANDUM OPINION * BY
v. Record No. 0530-97-1 JUDGE RICHARD S. BRAY
NOVEMBER 18, 1997
WILLIAM T. USHER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Karen M. Rye for appellants.
C. Allen Riggins (Parker, Pollard & Brown, on
brief), for appellee.
Dog Face Management, Inc., t/a Tony Elliott Band, and
Anthony D. Elliott (collectively Elliott) appeal a decision of
the Workers' Compensation Commission awarding benefits to William
J. Usher (claimant). On appeal, employer complains that the
commission erroneously concluded that claimant was not an
independent contractor but, rather, an employee entitled to
benefits under the Workers' Compensation Act (Act). We disagree
and affirm the award.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to
disposition of the appeal.
"The [Act] covers employees but not independent
contractors." County of Spotsylvania v. Walker, 25 Va. App. 224,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
229, 487 S.E.2d 274, 276 (1997). The distinction must be
determined from the facts of each case, with the burden upon a
claimant to prove an employer/employee relationship contemplated
by the Act. Id. at 229-30, 487 S.E.2d at 276; see Code
§ 65.2-101. Although factual findings of the commission,
supported by credible evidence, are binding and conclusive on
appeal, James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515,
382 S.E.2d 487, 488 (1989); see Code § 65.2-706, a
"[d]etermination of the relationship involves a mixed question of
law and fact 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, 509-510 (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).
[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
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
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but an independent contractor.'
Intermodel Servs., Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d
221, 224 (citations omitted).
Here, the evidence disclosed that Anthony Elliott,
self-described "leader" of the "Tony Elliott Band," 1 hired
claimant, a professional musician, to play guitar with the group
at an agreed weekly salary of $300. Claimant was expected to
provide and maintain equipment necessary to his performance in
accordance with instructions from Elliott. Elliott directed the
time, place, and duration of band rehearsals and approved
engagements for the band, together with attendant dress
2
requirements, musical style and selections. In early June,
1995, Elliott terminated claimant, with the understanding that he
remain for a final performance in Raleigh, North Carolina.
On the evening of June 10, 1995, while preparing for this
engagement, claimant fell from steps leading to the stage,
suffering head, back, and neck injuries. Claimant, nevertheless,
performed as agreed, drove himself back to Virginia, and sought
treatment at Riverside Emergency Trauma Center the following day.
Diagnosed with scalp contusions and back muscle spasms, the
attending physician ordered claimant from work for two days.
Dr. James F. Allen, a neurosurgeon, also treated claimant and
1
Later incorporated as Dog Face Management, Inc.
2
Employer's argument that the band was actually controlled
by its "agent," Cellar Door, is belied by the record.
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restricted his work activity to "brief sessions" and "jobs
locally" for a period of two weeks. Dr. Allen ultimately
discharged claimant from his care on July 28, 1995.
Such evidence clearly established that claimant was hired
and fired by Elliott, serving in the interim, including the time
of injury, under Elliott's direction and control for an agreed
salary, circumstances which defined claimant as an employee
entitled to benefits of the Act in accordance with the
commission's decision.
Employer also appealed to the commission the deputy's
finding that claimant's response to Elliott's request for
admissions did not limit his disability entitlement to the
"period 6/10/95 through 6/30/95." Although such issue was again
appealed, briefed and argued before this Court, it was not
expressly decided by the commission. We, therefore, remand this
question for resolution by the commission, with an appropriate
award of related benefits.
Affirmed and remanded.
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