Better Home Services, Inc. v. Isabel Medrano ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Senior Judge Cole
BETTER HOME SERVICES, INC.
MEMORANDUM OPINION*
v. Record No. 1776-00-4 PER CURIAM
NOVEMBER 21, 2000
ISABEL MEDRANO AND
UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John J. O'Donnell, Jr., on brief), for
appellant.
(Arturo Hernandez, on brief), for appellee
Isabel Medrano.
No brief for appellee Uninsured Employer's
Fund.
Better Home Services, Inc. ("BHS") contends that the
Workers’ Compensation Commission erred in finding that Isabel
Medrano (claimant) was its employee rather than an independent
contractor at the time of her compensable injury by 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.
"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
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
must be determined from the facts of each case, with the burden
upon the person seeking benefits under the Act to prove the
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 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
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."
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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 BHS, the commission found as follows:
Both parties point to different
documents designating the claimant either as
a subcontractor or an employee. BHS notes
that the claimant signed a subcontractor
agreement with BHS in 1993. The claimant
points out that [Yvonne] Elton[, BHS's
owner,] represented the claimant as an
employee on the claimant's green card
applications.
While these documents are indicative of
the parties' intent, and the intent of the
parties is a factor to be considered, it is
not determinative. The parties cannot
merely designate or agree to a legal status
in derogation of the relationship as
established by the facts of a particular
case, but the Commission must look behind
the agreement to determine the actual
relationship and the "status in fact."
* * * * * * *
Ms. Elton did more than just solicit
the cleaning work. In addition, to
solicitation, Ms. Elton determined each
day's work schedule by providing the
addresses of the houses and the order in
which to clean the houses. [BHS] paid
homeowners for any damage and Ms. Elton
would charge each worker. Ms. Elton was the
primary contact point. If a homeowner had a
problem, the homeowner would contact Ms.
Elton and Ms. Elton would try to remedy it.
It is of little moment that Ms. Elton
remedied the problem by enlisting the help
of the supervisors. Ms. Elton had complete
control over the supervisors by determining
which worker would be promoted to
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supervisor. The relationship was not one of
cooperation but of subordination.
(Footnote omitted.)
The commission's findings are amply supported by credible
evidence in the record. Claimant's testimony proved that Yvonne
Elton hired claimant in 1993 to clean houses. At that time,
Yolanda, a driver/supervisor employed by BHS, trained claimant.
In 1995, Elton made claimant a driver/supervisor. Claimant held
this position at the time of her accident.
In her position as a driver/supervisor, BHS gave claimant a
list of houses to clean each day. Claimant was then required to
pick up the other workers and drop them off at the specific
houses while driving a BHS van. The van was leased from BHS
Leasing, a company owned by Elton's husband, to claimant.
Claimant testified that in 1996, Elton took her and other
drivers to get insurance on the vehicles. The named insured on
the policy of insurance on the vehicle being driven by claimant
at the time of her accident was "Izabel Medrano DBA BHS Vehicle
Leasing." Claimant believed that the vans were leased to BHS.
Claimant was responsible for training the workers and for
making sure the houses were properly cleaned. Claimant
testified that BHS provided vacuums, brooms, and mops, which
claimant picked up each morning and returned at the end of the
day. She stated that at times, BHS provided cleaning supplies
and at times, the homeowner provided the cleaning supplies.
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For housecleaning, BHS paid claimant thirty-five percent of
the fee charged to the homeowner. For driving, BHS paid
claimant $500 every two weeks. She was not paid for travel
between homes. She and the other workers were given 1099 forms,
and BHS did not withhold any taxes or social security from their
earnings.
During the time claimant worked for BHS, she did not work
for anyone else and she did not clean houses on her own,
believing this was prohibited by BHS. She had to ask Elton for
permission to miss a day of work. Elton admitted that she fired
claimant after her accident, because claimant refused to sign a
document stating that she was a subcontractor.
Mirna Villalta, another BHS worker, testified that claimant
was her supervisor and trained her. She stated that claimant
drove the van and checked the work. At that time, there were
twenty-four to twenty-five people working for BHS. Villalta
testified that she did not work for anyone else and she was
required to inform Elton if she was going to miss work,
otherwise Elton would be "very upset." Villalta stated that if
she broke something while on the job, Elton would be notified
and she would charge Villalta for the broken item. Villalta
agreed that Elton provided vacuum cleaners and other equipment
and sometimes provided cleaning supplies.
The testimony of claimant and Villalta support the
commission's findings. Contrary to employer's contention, the
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use of a system of supervisors to accomplish the work did not
change the relationship between BHS and claimant from one of
employer/employee to an independent contractor relationship.
Based upon this evidence, the commission could reasonably
conclude that BHS exercised the requisite control over claimant
to make her its employee. For these reasons, we affirm the
commission's decision.
Affirmed.
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