Alice Waggle v. John M. Lang & Susan A. Lang, etc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
ALICE E. WAGGLE
v. Record No. 0556-96-4
JOHN M. LANG & SUSAN A. LANG, t/a
KILLAHEVLIN
MEMORANDUM OPINION * BY
and JUDGE CHARLES H. DUFF
NOVEMBER 19, 1996
SHELLEY A. MARTIN
v. Record No. 0557-96-4
JOHN M. LANG & SUSAN A. LANG, t/a
KILLAHEVLIN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Jerry O. Talton (Nikolas E. Parthemos;
Prosser, Parthemos & Bryant, P.C., on
briefs), for appellants.
Dana L. Rust (John M. Oakey, Jr.; Matthew S.
Bryant; McGuire, Woods, Battle & Boothe,
L.L.P., on briefs), for appellees.
Alice E. Waggle ("Waggle") and Shelley A. Martin ("Martin")
appeal a decision of the Workers' Compensation Commission denying
their applications for compensation benefits. Waggle and Martin
contend that the commission erred in finding that they were not
employees of John M. Lang and Susan A. Lang, t/a Killahevlin
pursuant to the provisions of the Workers' Compensation Act ("the
Act"). Finding no error, we affirm the commission's decision.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
When Martin's and Waggle's accident occurred on May 25,
1994, they were working for the Langs. Their jobs involved
stripping paint from a tower wall on one of the buildings at
Killahevlin, a bed and breakfast owned by the Langs. Martin and
Waggle had been working on the tower for two days prior to May
25, 1994. John Lang had instructed Martin and Waggle to strip
the paint off the entire outside wall on the tower. As Martin
and Waggle stood on an eight by four foot porch and worked
opposite each other stripping paint from the upper wall, the
porch collapsed, causing them to fall to the ground. Martin and
Waggle sustained multiple injuries.
Martin began working for the Langs in April 1994. She
worked five days per week, eight hours per day, and earned $7.50
per hour. The Langs usually paid her by check each Friday, but
on occasion gave her money on the day she worked. At times, the
Langs paid Martin in cash.
From April 1994 until May 25, 1994, Martin scraped and
sanded radiators, windows and doors at Killahevlin. Martin
stated that at the time of her accident, the Langs also employed
Henry Sloane, Melvin Baugher, Tommy Daniels, Alice Waggle, and
others whom she could not remember. Martin stated that John Lang
showed her how to strip walls.
Waggle testified that she began working for the Langs in
early 1993. She sanded, stripped paint, and, at times, cleaned
rooms. She may also have worked during this period of time for
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one or two weeks for Melvin Baugher. Waggle stated that she
worked forty hours per week, Monday through Friday, and she
earned between $7 and $10 per hour, depending on the difficulty
of the job. When Waggle first started working for the Langs,
they paid her in cash, but later paid her by check on a weekly
basis. Waggle stated that John Lang set her work hours, provided
all her tools, told her what to do when she got to work, was
present on the jobsite, controlled her work performance, and
showed her how to perform various job tasks. Waggle stated that
the Langs employed several other individuals at the time of her
accident.
Wendy Clooney testified that she accepted telephone calls at
her home on behalf of Waggle. Clooney stated that John Lang
called her home ten to fifteen times to tell Waggle when to be at
work.
John Lang testified that Killahevlin is a bed and breakfast,
which he and his wife have been renovating for five-and-one-half
years. They also live in the house. John Lang stated that he
hires various contractors, carpenters, and day laborers to work
on the renovations. He did not withhold taxes or social security
for any of these individuals. John Lang claimed that he did not
supervise the independent contractors who helped renovate the
house. He characterized these individuals as casual laborers
because they did not have regular work schedules. Instead, they
worked only when the Langs needed them.
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John Lang testified that he hired Waggle in 1993 and paid
her $7.50 per hour. He stated that Waggle's main task was to
sand woodwork, and that Waggle did not work continuously for him
up until the time of the accident, but that she also worked for
Baugher. John Lang stated that Waggle first brought Martin to
the jobsite. He stated that he paid Martin $7.50 per hour and
she did not work a set schedule. Martin and Waggle kept track of
the hours they worked by writing them on a calendar provided by
the Langs. John Lang denied that he supervised Martin and Waggle
when they performed work on the tower. He admitted that in order
to make the bed and breakfast profitable he had to renovate the
house, but asserted that he did not run a home renovation
business. He admitted that he provided all of Waggle's and
Martin's tools. He also stated that he probably told Waggle and
Martin to strip the paint off the tower and suggested they use a
product called "Peel-Away." He had shown Waggle how to use
Peel-Away on a previous occasion.
Code § 65.2-101 defines "employee" as follows:
1. a. Every person . . . in the service of
another under any contract of hire or
apprenticeship, written or implied, except
(i) one whose employment is not in the usual
course of the trade, business, occupation or
profession of the employer or (ii) as
otherwise provided in subdivision 2 of this
definition.
* * * * * * *
2. "Employee" shall not mean:
* * * * * * *
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e. Casual employees.
Waggle and Martin bore the burden of proving that they were
employees of the Langs. Craddock Moving & Storage Co. v.
Settles, 16 Va. App. 1, 3, 427 S.E.2d 428, 430 (1993), aff'd, 247
Va. 165, 440 S.E.2d 613 (1994).
"What constitutes an employee is a question of law; but
whether the facts bring a person within the law's designation, is
usually a question of fact." Baker v. Nussman, 152 Va. 293, 298,
147 S.E.2d 246, 247 (1929). "Deciding what is the trade,
business, or occupation of an entity is a 'mixed question of law
and fact' and is a question that 'does not readily yield to
categorical or absolute standards.'" Henderson v. Central Tel.
Co. of Virginia, 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987)
(quoting Bassett Furniture v. McReynolds, 216 Va. 897, 902, 224
S.E.2d 323, 326 (1976)).
The commission found that the Langs were not in the business
of purchasing and restoring historical properties; rather, they
were in the business of operating a bed and breakfast. The
commission held that "the preparation of the proper facilities to
conduct that business by restoration or renovation does not
constitute 'periodic, regular, or permanent' activities that are
part of the usual course of the trade, business, or occupation of
the employer." The commission found that although the renovation
was essential to the establishment of the Langs' bed and
breakfast, it was not part of the Langs' regular and permanent
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operations. Thus, the commission agreed that Waggle and Martin
were not independent contractors, yet they did not qualify as
"employees" under Code § 65.2-101.
In Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162(1972), the Supreme Court set forth the test this Court must use
to determine whether Waggle and Martin were engaged in the Langs'
trade, business, or occupation:
[T]he test is not one of whether the
subcontractor's activity is useful,
necessary, or even absolutely indispensable
to the statutory employer's business, since,
after all, this could be said of practically
any repair, construction or transportation
service. The test (except in cases where the
work is obviously a subcontracted fraction of
a main contract) is whether this
indispensable activity is, in the business,
normally carried on through employees rather
than independent contractors.
Id. at 722, 187 S.E.2d at 167. This test "works best in cases
involving private businesses because those entities often define
their trade, business, or occupation by their conduct. With
regard to such entities, what they do on a day-to-day basis
provides a reasonably reliable indicator of their trade,
business, or occupation." Henderson, 233 Va. at 383, 355 S.E.2d
at 599.
In Mims v. McCoy, 219 Va. 616, 248 S.E.2d 817 (1978), the
Supreme Court held that the work performed by a carpenter in
doing renovations for a farmer on his riverfront cabin was in no
way connected to the farmer's usual occupation, and therefore,
the commission erred in ruling that the carpenter was an employee
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covered by the Act. Id. at 619, 248 S.E.2d at 819.
In this case, although the record established that the work
Waggle and Martin performed for the Langs was not casual, and
that John Lang maintained a degree of control over the means and
methods Waggle and Martin used to accomplish their work, the
evidence failed to show that Waggle's and Martin's work fell
within the Langs' usual trade, business, or occupation. Thus,
the commission did not err in finding that Waggle and Martin were
not "employees" covered under the Act. The work Waggle and
Martin performed, i.e., renovation and restoration of the
Killahevlin buildings, was not part of the Langs' regular or
permanent business of running a bed and breakfast inn nor did the
evidence prove that the Langs expected the bed and breakfast
employees to perform such work.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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