Catercorp, Inc. v. Gerald Hall ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
CATERCORP, INC.
AND
ROYAL INSURANCE COMPANY OF AMERICA
v. Record No. 0665-95-2 MEMORANDUM OPINION *
PER CURIAM
GERALD HALL SEPTEMBER 19, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John M. Oakey, Jr.; Jill M. Misage; McGuire, Woods
Battle & Boothe, on brief), for appellants.
(Louis D. Snesil; McDonald & Snesil, on brief), for
appellee.
Catercorp, Inc. and its insurer (hereinafter collectively
referred to as "employer" or "Catercorp") contend that the
Workers' Compensation Commission erred in finding that (1) Gerald
Hall ("claimant") was an employee rather than an independent
contractor at the time of his compensable injury by accident and
(2) his employment with ARA Services ("ARA") was substantially
similar to his work for employer for purposes of calculating his
average weekly wage. 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
5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
"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. Behrensen, 10 Va. App. at 367, 392 S.E.2d at 510.
In reversing the deputy commissioner and finding that
claimant was Catercorp's employee, the full commission found
that "the employer paid the claimant according to the number of
parties he worked, directed him to the job site and controlled
the work to be done, and reserved the right to inspect and
criticize his work to insure that it met the employer's
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standards." These findings are supported by the testimony of
claimant, John Maxwell, employer's executive chef, and C.G.
Jordan, owner of Catercorp.
Catercorp provides off-premises catering services for
client's parties. Claimant, a chef, testified that he had worked
for Catercorp for several years. Claimant was contacted by
either Maxwell or Jordan and asked if he could work a particular
job. Claimant could accept or decline the offer of employment.
Claimant prepared food at Catercorp's place of business,
according to Jordan's specifications. Either Maxwell or Jordan
supervised each job that claimant worked. Maxwell stated that he
gave recipes to the cooks, such as claimant, and told them what
result he wanted. Maxwell supervised claimant in the preparation
of the food, and the loading and "off loading." Claimant
performed all of these tasks on the date of his injury. Claimant
used his own tools when he prepared food for parties at
Catercorp's business location. However, he used employer's tools
at the parties.
Claimant and Maxwell testified that cooks were paid for each
job on an hourly basis. The hourly rate was approximately $7.00
to $ 8.00 per hour, with the minimum wage being $50.00 per job.
Claimant estimated that he earned $100 per job and worked several
times per week. Maxwell stated that claimant worked three to
four times per month.
This record supports a finding that employer controlled not
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only the result, but also the means and methods by which the work
was to be accomplished. Thus, we find that credible evidence
supports the commission's findings, and those findings indicate
that claimant was Catercorp's employee.
II.
"Virginia follows the majority rule that when an employee is
injured on one job while in concurrent employment, the average
weekly wage compensated is based on the combined earnings of both
jobs if, but only if, the employments are related or similar."
County of Frederick Fire and Rescue v. Dodson, 20 Va. App. 440,
443, 457 S.E.2d 783, 784 (1995) (claimant's part-time employment
as a fire-medic found to be substantially similar to her full-
time employment as a cardiac technician and emergency room
nurse).
The commission found that claimant's employment with ARA as
a chef was substantially similar to the work he performed for
Catercorp as a chef. Claimant's job with ARA required that he
prepare cafeteria food. He also performed catering services for
ARA in its cafeteria. Claimant's job for Catercorp required that
he prepare food and serve it off-premises. Employer argues that
because claimant performed his ARA job in a cafeteria instead of
off-site and because he was required to use entertainment and
presentation skills for Catercorp and not ARA, the employments
were not substantially similar. This argument is without merit.
In cases such as this one, where
all of a claimant's duties and skills in one
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job are utilized in the other job, which has
a wider scope of employment, the general
class of employment approach, focusing on the
primary mission of an employee in both jobs,
[should be used in] determining whether two
employments are so related as to conclude
they are substantially similar.
Dodson, 20 Va. App. at 445, 457 S.E.2d at 785. Not only were all
of the claimant's skills as a chef utilized in his job for
Catercorp, but both employments were of the same general class,
i.e., food service. Claimant's testimony provides credible
evidence to support the commission's decision that his job for
Catercorp was substantially similar to his job at ARA.
For these reasons, we affirm the commission's decision.
Affirmed.
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