Mark Edwards, etc. v. Robert Ingalls ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
MARK EDWARDS T/A EDWARDS
BUILDING & REMODELING
v. Record No. 2447-95-1 MEMORANDUM OPINION *
PER CURIAM
ROBERT INGALLS APRIL 23, 1996
AND
UNINSURED EMPLOYERS' FUND
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Larry D. King, on brief), for appellant.
(Byron A. Adams, on brief), for appellee
Robert Ingalls.
(James S. Gilmore, III, Attorney General;
Richard L. Walton, Jr., Senior Assistant
Attorney General; John J. Beall, Jr.,
Senior Assistant Attorney General;
Christopher D. Eib, Assistant Attorney
General, on brief), for appellee
Uninsured Employers' Fund.
Mark Edwards t/a Edwards Building & Remodeling ("Edwards")
contends that the Workers' Compensation Commission erred in
finding that (1) Robert Ingalls ("claimant") was Edwards'
employee rather than an independent contractor; and (2) that
claimant did not commit willful misconduct pursuant to Code
§ 65.2-306. 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. Rule
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
5A:27.
I. Employee Status
"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. 246, 247 (1929). On appellate review, the findings of
fact made by the commission will be upheld when supported by
credible evidence. James v. Capitol Steel Constr. Co., 8 Va.
App. 512, 515, 382 S.E.2d 487, 488 (1989).
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)). The employer-employee relationship exists if the power
to control includes not only the result to be accomplished, but
also the means and methods by which the result is to be
accomplished. Id. at 367, 392 S.E.2d at 510.
Edwards operated a business which framed houses. Edwards
testified that he had nine people working for him as of November
12, 1993, the date of claimant's accident. Edwards did not
classify these individuals as employees, rather, he believed they
were subcontractors. Edwards based this belief upon the
individuals' work knowledge, the fact that they supplied their
own tools, and their agreement not to have taxes taken out of
their wages.
Claimant testified that Edwards decided where and when
claimant would work. On various occasions, Edwards transported
claimant from one job to another. Claimant stated that Edwards
instructed him on the work which needed to be done at each job.
Although claimant had experience in framing houses, he called
upon Edwards for assistance if he had problems.
On the day of claimant's November 12, 1993 accident, Edwards
came to a job where claimant was working on a basement and told
claimant to go to another job to work on a porch. While working
on the porch, claimant fell from homemade scaffolding built by
two co-workers. As a result of the fall, claimant injured his
knee.
Edwards paid claimant by the hour on a weekly basis,
sometimes in cash and sometimes by check. Claimant quit working
for Edwards in June 1993. Through June 1993, Edwards reported
claimant's earnings for tax purposes on a W-2 form. Claimant
returned to work for Edwards in October 1993. After claimant's
November 12, 1993 accident, Edwards reported claimant's earnings
on a 1099 form.
The testimony of claimant and Edwards provides credible
evidence to support the commission's finding that Edwards' so-
called subcontractors, including claimant, were actually Edwards'
employees for purposes of workers' compensation. Edwards
controlled not only the result to be accomplished by claimant, an
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hourly employee, but he also controlled the means and methods by
which claimant accomplished his job.
Based upon this record, we find that the commission did not
err in holding that Edwards employed more than three employees,
and that claimant was Edwards' employee.
II. Willful Misconduct
"To prevail on the defense of willful violation of a safety
rule, employer must prove that: (1) the safety rule was
reasonable; (2) the rule was known to the employee; (3) the rule
was promulgated for the benefit of the employee; and (4) the
employee intentionally undertook the forbidden act." Brockway v.
Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995).
Whether the rule is reasonable and
applies to the situation from which the
injury results, and whether the claimant
knowingly violated it, is a mixed question
of law and fact to be decided by the
commission and reviewable by this Court.
But the question of whether an employee is
guilty of willful misconduct and whether
such misconduct is a proximate cause of the
employee's accident are issues of fact.
Id. at 271-72, 456 S.E.2d at 161.
In finding that employer did not establish that "claimant
intentionally undertook the purportedly forbidden act," the
commission found as follows:
Croft, who alleges that he told the
claimant to get off the scaffolding because
someone would get hurt, made the singular
exhortation, and then left. There was no
enforcement of his alleged dictate. The
claimant refutes that any such comment was
made to him. He further states that what
was built was the type of scaffolding that
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had been used by him a number of times in
the past; and that to his observation it
had been built the same way he had used it
previously. Even his employer, though
suggesting that another scaffolding was
available, acknowledged that his employees
sometimes choose to build their own, "which
was commonplace." Though it would not have
taken long to assemble the mason's
scaffolding, what necessarily may have
taken less time does not imply misconduct
not to do it. The evidence predominates
that the employee's conduct was not
prohibited, but rather was condoned by the
employer.
The commission's factual findings are supported by credible
evidence, including the testimony of claimant, Croft, and
Edwards. Based upon their testimony, the fact finder could infer
that employer condoned the employees' practice of building their
own scaffolding. Accordingly, we cannot say as a matter of law
that the commission erred in finding that employer's evidence
failed to prove any wrongful intent on claimant's part. Because
of this finding, employer's defense of willful violation of a
safety rule cannot prevail. Virginia law requires an employer to
prove more than negligence or the exercise of the will in doing
an act; employer must prove a wrongful intention. Uninsured
Employer's Fund v. Keppel, 1 Va. App. 162, 164, 335 S.E.2d 851,
852 (1985).
For the reasons stated, we affirm the commission's decision.
Affirmed.
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