Uninsured Employer's Fund v. Kevin M Cornelius, et ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia
UNINSURED EMPLOYER'S FUND
MEMORANDUM OPINION* BY
v. Record No. 1901-02-1 JUDGE JERE M.H. WILLIS, JR.
MARCH 18, 2003
KEVIN M. CORNELIUS AND
15TH STREET AMUSEMENT PARK, L.L.C.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John J. Beall, Jr., Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Richard L. Walton, Jr., Senior Assistant
Attorney General, on brief), for appellant.
Stephen A. Strickler (Inman & Strickler, PLC,
on brief), for appellee Kevin M. Cornelius.
No brief or argument for appellee 15th
Street Amusement Park, L.L.C.
The Uninsured Employer's Fund (the Fund) appeals a decision
of the Workers' Compensation Commission awarding compensation
benefits to Kevin M. Cornelius (claimant). The Fund contends
the commission erred in holding that 15th Street Amusement Park,
L.L.C. (employer) regularly employed three or more employees
within the Commonwealth on the date of claimant's injury by
accident, thereby subjecting employer to the commission's
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
jurisdiction. See Code § 65.2-101 "Employee" (2)(h). Finding
no error, we affirm.
"The threshold jurisdictional issue
which the commission had to decide was
whether the employer regularly had in his
service three or more employees so as to
come within the coverage of the Act.
'"Employee" means . . . [e]very person
. . . in the service of another under any
contract of hire or apprenticeship, written
or implied, except . . . one whose
employment is not in the usual course of the
trade, business, occupation or profession of
the employer.' Both full-time and part-time
employees who are regularly employed to
carry out the trade or business of the
employer must be counted in determining the
number of employees 'regularly in service'
to the employer. 'Any person hired by the
employer to work in the usual course of the
employer's business is an "employee" under
the Act regardless of how often or for how
long he may be employed.' The number of
employees regularly in service of the
employer is the number 'used to carry out
the established mode of performing the work
of the business . . . even though the work
may be recurrent instead of constant.'"
Uninsured Employer's Fund v. Kramer, 32 Va. App. 77, 82, 526
S.E.2d 304, 306 (2000) (quoting Smith v. Hylton, 14 Va. App.
354, 356, 416 S.E.2d 712, 714 (1992) (citations omitted)).
In affirming the deputy commissioner's finding that the
employer was subject to the commission's jurisdiction, the
commission found as follows:
This employer had three or more
employees regularly in service during its
business season as an amusement park.
[Bruce] Mimran[, the operating owner of the
business,] testified that the employer
employed over 15 people in July 2000.
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Although most of the amusement park rides
were removed [on or about August 7, 2000]
after a dispute with the company that owned
them, the employer continued to operate
several booth games and a parking lot until
September 2000. These operations logically
required fewer employees as the season moved
to a close. After Labor Day 2000, the
claimant was the only employee left on the
payroll. He testified that he continued to
operate a game booth and a parking lot after
Labor Day, but that around the time of the
accident he only parked cars. In March
2001, the employer resumed its operations
with the requisite number of employees
needed to run an amusement park.
* * * * * * *
The employer's established mode of
business involved operating an amusement
park during the appropriate seasons, and it
admittedly and necessarily employed over
three employees to carry out this business.
The claimant's injury occurred while he was
breaking down a game setup at the end of the
season. The claimant's status as a covered
employee should not fluctuate merely because
his injury occurred at the end of the season
when the employer needed one employee on the
payroll, as opposed to during the height of
the amusement park season when it employed
well over three employees.
On appeal, we view the evidence in the light most favorable
to the party prevailing below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The
commission's factual findings are conclusive and binding on this
Court when those findings are based on credible evidence. See
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
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The testimony of Mimran and claimant supports the
commission's findings. "That evidence established that at
various times during the year preceding claimant's injury by
accident, employer '"used [three or more employees] to carry out
the established mode of performing the work of the business
. . . even though the work [might have been] recurrent instead
of constant."'" Kramer, 32 Va. App. at 83, 526 S.E.2d at 306
(citation omitted).
On direct examination, Mimran agreed that employer's
business was "to run an amusement park." He acknowledged that
when he opened the amusement park in July 2000, the business
employed fifteen to twenty-one people, including claimant. The
amusement park's rides were removed in August 2000 due to a
dispute between employer and the company that owned the rides.
The Fund argues that the removal of the rides terminated the
employer's operation of the business. However, the evidence
establishes that even after the removal of the rides, the
employer continued its business, operating games and the parking
lot.
The removal of the rides did not change employer's ongoing
need for three or more employees to run its amusement park when
fully operational. When employer resumed its amusement park
operation in March 2001, it employed well over three employees.
The seasonal nature of employer's amusement park business, which
caused fluctuations in its total number of employees, did not
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eliminate the commission's jurisdiction where, as here, credible
evidence proved that employer regularly had in service three or
more employees "'to carry out the established mode of performing
the work of the business [of an amusement park] . . . .'" Id.
at 82, 526 S.E.2d at 306 (citation omitted).
For these reasons, we affirm the commission's decision.
Affirmed.
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