Linda A. Cosgrove v. Curtis R. Sowers ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
LINDA A. COSGROVE
MEMORANDUM OPINION*
v. Record No. 1337-00-3 PER CURIAM
OCTOBER 3, 2000
CURTIS R. SOWERS AND MARK A. SOWERS,
A PARTNERSHIP, HUCKLEBERRY DAIRY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Deborah W. Dobbins; Robin J. Kegley; Gilmer,
Sadler, Ingram, Sutherland & Hutton, on
brief), for appellant.
(Kendall O. Clay, on brief), for appellee.
Linda A. Cosgrove (claimant) contends that the Workers'
Compensation Commission erred in finding that it lacked
jurisdiction to consider claimant's claim on the ground that
Curtis R. Sowers and Mark A. Sowers, A Partnership, Huckleberry
Dairy (employer) did not regularly have in service more than two
full-time employees at the time of claimant's June 28, 1997
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.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
It was undisputed that at the time of claimant's accident,
employer had two full-time employees, claimant and Fred Weddle.
The issue in dispute was whether either Jason Conner or James
Vest, both high school students at the time, were full-time
employees of employer. The commission held that Conner and Vest
were not full-time employees, and, therefore, employer did not
regularly have in service more than two full-time employees in
the operation of its dairy farm. In so ruling, the commission
found as follows:
[C]laimant testified that she and Weddle
worked approximately 91 hours per week each.
She stated that she received a salary,
housing provisions, vacation time, and sick
leave. By comparison, Conner and Vest
generally worked less than 40 hours per week
each. They were paid by the hour and
received no benefits. There was no evidence
that either Conner or Vest was required to
work a set number of hours. Instead, Conner
testified to his fluctuating schedule,
varying hours, and irregular
responsibilities. He thought of himself as
a part-time employee. The claimant
described Conner as someone who "filled in"
on the weekends. Vest testified that he
considered himself to be part-time, based on
his full-time commitment to school. [Mark]
Sowers confirmed that Vest worked on an
irregular basis depending upon available
jobs. Conner, Vest, and [Adam] Lowe all
attended school full-time; thus, it was
impossible for the employer to utilize them
in a full-employment capacity.
Code § 65.2-101(2)(g) provides that a farm worker is not a
covered "employee" under the Workers' Compensation Act "unless
the employer regularly has in service more than two full-time
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employees." In Lynch v. Thomas E. Lee & Sons, 12 Va. App. 933,
406 S.E.2d 423 (1991), we recognized that "'full-time
employment' imports a sense of permanence coupled with a
commitment between the employer and employee whereby the
latter's normal employment capacity is essentially utilized."
Id. at 934, 406 S.E.2d at 424. "'The Commission's findings of
fact are binding on appeal where supported by credible
evidence.'" Lynch v. Lee, 19 Va. App. 230, 234, 450 S.E.2d 391,
393 (1994) (citation omitted).
The commission's factual findings are supported by credible
evidence, including the testimony of claimant, Vest, Conner, and
Sowers. In addition, employer's documentation reflecting its
employees' hours and wages during the relevant time period also
constitutes credible evidence to support the commission's
findings. Thus, those findings are binding upon us on appeal.
See id. Based upon those factual findings, the commission could
infer that no "sense of permanence" existed in the relationship
between employer, Conner, and Vest and that because Conner and
Vest were full-time students, employer could not have utilized
their normal employment capacity. Credible evidence proved that
employer, Conner, and Vest all understood that Conner and Vest
were full-time students who worked as their school and
school-related activities permitted and as the needs of employer
required given the seasonal nature of farm work. Accordingly,
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the commission did not err in holding that it did not have
jurisdiction over claimant's claim because employer did not
regularly have in service more than two full-time employees.
For these reasons, we affirm the commission's decision.
Affirmed.
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