Jose A. Juarez v. C. Woolfrey Construction

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued at Alexandria, Virginia
JOSE A. JUAREZ
MEMORANDUM OPINION* BY
v. Record No. 2289-98-4 JUDGE DONALD W. LEMONS
JUNE 22, 1999
C. WOOLFREY CONSTRUCTION,
GRANITE STATE INSURANCE COMPANY,
ALFONSO E. ORTIZ AND
UNINSURED EMPLOYER’S FUND
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Diane C. H. McNamara for appellant.
Susan A. Evans (Siciliano, Ellis, Dyer &
Boccarosse, on brief) for appellees C.
Woolfrey Construction and Granite State
Insurance Company.
Donald M. Haddock, Jr.; Jennifer Lee Parrish;
Roberts, Ashby & Parrish, on brief), for
appellee Alfonso Ortiz.
Christopher D. Eib, Assistant Attorney
General (Mark L. Earley, Attorney General;
Richard L. Walton, Jr., Senior Assistant
Attorney General, on brief), for appellee
Uninsured Employer’s Fund.
Jose A. Juarez appeals the decision of the Workers’
Compensation Commission denying him benefits. On appeal, Juarez
contends that the commission erred in allowing a deputy
commissioner to serve on the full commission when it reviewed
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
the case. Juarez also argues that the commission erred in
finding that Juarez was an independent contractor at the time of
the accident. We find that that the commission committed no
error, and we affirm its decision.
I. BACKGROUND
On August 28, 1996, Jose Juarez fell from the roof of a
building and injured his left ankle, left leg and spine. Juarez
testified that at the time of his injury, he was working on the
roof with Alfonso Ortiz and a crew of men.
Juarez began working with Ortiz in 1995. Both Juarez and
Ortiz were employed with Bean & Mallow (“B & M”), a Northern
Virginia roofing contractor. Ortiz was the supervisor or
foreman of the roofing crew, and Juarez worked under Ortiz as a
member of the crew. Rodolpho and Geraldo Silva and Martin
Rodriguez were all also members of Ortiz’s crew. Ortiz is
fluent in both Spanish and English and helped all of the men to
complete their applications for employment with B & M. Except
for some basic phrases, Juarez does not speak English.
In 1996, Ortiz asked Juarez to work on roofing jobs for C.
Woolfrey Construction. C. Woolfrey Construction (“Woolfrey
Construction”) was the roofing contractor for Atlantic Builders,
and supplied all of the materials and labor on the job site for
that builder. The jobs for Woolfrey did not involve B & M, and
were completely unrelated to both Ortiz’s and Juarez’s
employment with B & M. Ortiz testified that he allowed Juarez
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to select the other individuals to work on the crew with him on
the Woolfrey Construction job sites. The other members of the
crew included Rodolpho and Geraldo Silva and Rodriguez.
Juarez testified that he began working on the “Woolfrey”
jobs in 1996. Ortiz would inform Juarez where the job was
located and provide directions to the site. The crew never knew
if the job was for B & M or Woolfrey Construction until they
arrived and noticed the company signs. When the crew worked for
B & M, they would receive a company check; whereas, when they
worked on a job for Woolfrey Construction, the men received
either a personal check made out to one crew member on a
rotational basis, which they would divide among themselves, or
cash. Ortiz always delivered their payment for the Woolfrey
Construction jobs.
When the crew worked at the Woolfrey Construction job
sites, the crew supplied its own tools. The crew had purchased
an air compressor from Ortiz, and the crew used two ladders, one
belonged to B & M and the other belonged to Ortiz. The crew
traveled to the job sites in a truck the crew members had
purchased from Ortiz. Juarez kept the truck at his home, and
used it for personal errands.
Juarez stated that “there was no boss” of the crew;
rather, all of the crew members were “friends.” On the Woolfrey
Construction jobs, the crew set its own hours and determined
when they would go to lunch or take breaks. Juarez testified
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that they did not keep track of the hours that the crew spent at
each house.
On August 28, 1996, the day of the accident, Juarez was
working with Rodolpho and Geraldo Silva and Rodriguez. Clayton
Woolfrey, the owner of Woolfrey Construction at the time of the
accident, was called immediately and he went to the hospital to
check on Juarez. Woolfrey testified that he knew that the
accident “definitely occurred on one of our jobs.” When he
first arrived at the hospital, Woolfrey told hospital personnel
that he was “hiring [Juarez] as of that day.” Woolfrey
testified that he only told the hospital that because he was
afraid that, due to the language barrier, Juarez might not be
receiving proper medical attention.
After his accident, Juarez filed an application for
benefits under the Workers’ Compensation Act, naming Woolfrey
Construction as his employer. Woolfrey Construction’s insurance
carrier initially accepted Juarez’s claim and paid $8,928 in
benefits. However, the carrier then changed its position, and
denied further liability on the ground that Juarez was an
independent contractor, not an employee of Woolfrey
Construction.
On October 22, 1997, an evidentiary hearing was held on
Juarez’s claim. On December 5, 1997, Deputy Commissioner
Herring issued an opinion finding that Juarez “was not an
employee of either . . . Ortiz or . . . Woolfrey
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[Construction]. . . .” Deputy Commissioner Herring determined
that Juarez was an independent contractor and that he was not
entitled to recovery under the Workers’ Compensation Act.
Juarez sought review of the deputy commissioner’s opinion.
On September 10, 1998, the full commission affirmed the deputy
commissioner’s ruling. Juarez appeals the ruling of the full
commission.
II. REVIEW PROCESS
Juarez argues on appeal that the full commission did not
comply with the review process prescribed by the Workers’
Compensation Act and that the opinion issued by the full
commission is void.
The Workers’ Compensation Act mandates that the full
commission be comprised of three members. Of the first two
members,
[n]ot more than one . . . shall be a person
who on account of his previous vocation,
employment or affiliation, shall be
classified as a representative of employers,
and not more than one such appointee shall
be a person who on account of his previous
vocation, employment or affiliation, shall
be classed as a representative of employees.
Code § 65.2-200(D). The third, or “neutral,” member,
shall be chosen by the joint vote of the two
houses of the General Assembly during the
month of January of each regular session of
the General Assembly convened in any
even-numbered year, and who shall serve for
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terms of six years from the first date of
February next succeeding election.
Code § 65.2-200(B).
On the date Deputy Commissioner Herring’s opinion was
reviewed by the full commission, the commission was comprised of
Commissioner Lawrence Tarr, the “employer representative,”
Commissioner William Dudley, the “neutral member,” and
Chairperson Virginia Diamond, the “employee representative.”
However, Chairperson Diamond did not participate in the full
commission’s review of Juarez’s case. Deputy P. Randolph Roach,
a Deputy Commissioner employed by the Workers’ Compensation
Commission, participated in the review of Juarez’s case and the
rendering of the opinion of the full commission.
Citing Code § 65.2-704(B), Juarez maintains “[o]nly under
certain prescribed circumstances may a deputy be substituted in
place of a full Commissioner” and that none of the circumstances
existed in his case. Code § 65.2-704(B) states
[a]ny member of the Commission who hears the
parties at issue and makes an award . . .
shall not participate in a rehearing and
review of such award provided under [Code]
§ 65.2-705. When a member is absent or
prohibited by the provisions of this
subsection from sitting with the full
Commission to hear a review, the Chairman
shall appoint one of the deputies to sit
with the other Commission members.
On appeal, Juarez argues that in his case “none of the
members of the Commission were ‘absent or prohibited’ from
hearing the case on review.” In addition, Juarez contends that
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“the first hearing was not before the full Commission, so the
exception set forth in Code § 65.2-705 is not triggered.”
Finally, Juarez argues that there is “no indication in the
record” that Roach was appointed by Chairperson Diamond in her
absence as required by Code § 65.2-704(B) and that he did not
have notice of the substitution, or the opportunity to object.
Juarez never raised the issue of Deputy Commissioner
Roach’s participation in the review of his case before the full
commission. Although the commission did not allow oral argument
in this case and Juarez did not know the composition of the full
commission until the review opinion was issued, Juarez had the
opportunity to object after the opinion was rendered and before
it became final thirty days later. Juarez did not make a motion
to reconsider or to vacate the opinion during the thirty-day
period that the decision remained within the jurisdiction of the
commission. We will not consider an issue not brought before
the commission for the first time on appeal. See Green v.
Warwick Plumbing & Heating Corp., 5 Va. App. 409, 412-13, 364
S.E.2d 4, 6 (1988).
III. EMPLOYEE/EMPLOYER RELATIONSHIP
Juarez argues that the Workers’ Compensation Commission
erred in its finding that he was not an employee of Woolfrey
Construction at the time of his injury. Juarez contends that
Woolfrey Construction exercised a degree of control over his
work that created a relationship of employee/employer. In
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addition, Juarez argues that if we do not find that he was an
employee of Woolfrey Construction, we must find that Alfonso
Ortiz was his employer. Pursuant to the parties’ stipulation at
the hearing, if the commission found that Juarez was an employee
of Ortiz, Woolfrey Construction would be his statutory employer.
Whether a person is an independent contractor or an
employee is governed by traditional common law principles. See
Hamilton Trucking v. Springer, 10 Va. App. 710, 396 S.E.2d 379(1990). “The power or right of control is the most significant
factor in determining the character of the relationship, and the
most significant inquiry is whether the power or right to
control the means and methods by which the result is to be
accomplished has been reserved.” County of Spotsylvania v.
Walker, 25 Va. App. 224, 230, 487 S.E.2d 274, 276 (1997).
In its opinion dated September 10, 1998, the full
commission adopted Deputy Commissioner Herring’s findings of
fact in his December 5, 1997 opinion. Deputy Commissioner
Herring’s findings included the following:
Juarez has not met his burden of proof
as to either purported employer. We believe
the evidence to be conclusive that although
Ortiz arranged work for Juarez and his
fellow crew members and occasionally even
directed them to the job sites, he did not
supervise or otherwise control their work.
Indeed, the evidence is uncontradicted that
if one of more of the work crew members was
not available or could not work, Ortiz would
attempt to find a replacement.
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We also find, on the evidence
presented, that Juarez and his fellow
workers were free to accept or reject jobs
as they pleased. The fact that, as Juarez
testified, no work was ever refused does not
mean that either he or his fellow workers
did not have the right to do so.
For much the same reason, we also find
that Woolfrey did not “control” the actions
of Juarez and his fellow workers. As we
understood the evidence, Woolfrey specified
what type of job needed to be done,
depending on the roofing required, and
occasionally completed work when Juarez and
the other men did not finish. We held that
specifying the type of work to be done does
not equate with supervising that work, and
there is no evidence before us that he
actually did so.
* * * * * * *
The evidence was abundant . . . that,
in the overwhelming number of cases, Juarez
and his friends worked without intervention
either from Ortiz or from Woolfrey.
Although not dispositive, it is also
undisputed that Juarez and his friends were
paid by the job, based upon the number of
“squares” of roofing installed.
Simply stated, all the witnesses on
this point agreed that Juarez and his
companions were highly-skilled, motivated
workers who needed no supervision in
performing the tasks assigned. Their sole
requirement was to complete the assigned job
so that the home would pass inspection.
Only on those occasions when they ran out of
materials, which were furnished by Woolfrey,
or did not have time to complete the task,
did Woolfrey personally become involved.
We also find that the incident in the
hospital whereby Woolfrey offered to
“employ” Juarez has no bearing on our
decision. We see this as nothing more than
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an attempt by Woolfrey to ensure that Juarez
got appropriate medical care.
The full commission stated additional evidence in its
opinion:
Once Ortiz obtained a [Woolfrey] job, he
would show the crew the location and the
crew would perform the roofing job, setting
their own hours, and using their own tools
and truck. When the job was completed,
Ortiz would be paid in a lump sum which he
would give to the crew, and they would
determine how it would be divided among
them. Because Ortiz spoke English, and the
crew primarily spoke Spanish, Ortiz acted as
a liaison between the crew and Woolfrey, if
a problem arose. No taxes, social security,
or health insurance premiums were deducted
from the money received for performing work
at the Woolfrey sites. Ortiz testified that
he did not consider the claimant or the
other crew members to be his employees, and
as a result, he did not carry workers’
compensation insurance coverage. Woolfrey
testified that he only visited the locations
to insure the job was completed. Often,
Ortiz did not discover that a job was
completed until he learned of it from
Woolfrey or one of the crew members.
Woolfrey provided materials on the job site,
but did not speak Spanish and therefore, did
not direct the others as a supervisor.
After the injury, Woolfrey told hospital
personnel that the claimant was his employee
so that the claimant would be covered and
would not have to have his leg amputated.
The full commission concluded
[t]he evidence established that Ortiz
essentially brokered the job between the
crew and C. Woolfrey Construction. Once the
job was established, and the crew was told
what needed to be done, the crew members set
their own schedule, used their own tools,
and decided how they would divide the pay.
We find that neither Ortiz nor Woolfrey
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exercised that degree of control over the
crew that rendered them employees.
In reviewing the decision of the Workers’ Compensation
Commission, “we review the evidence in the light most favorable
to the party prevailing below.” Uninsured Employer’s Fund v.
Clark, 26 Va. App. 277, 280, 494 S.E.2d 474, 475 (1998). “The
commission’s findings of fact will be upheld on appeal if they
are supported by credible evidence.” Id. at 280, 494 S.E.2d at
475. In reviewing the evidence in the light most favorable to
Woolfrey Construction and Ortiz, we find that credible evidence
exists to support that Juarez was an independent contractor and
was ineligible for benefits under the Workers’ Compensation Act.
We also hold that credible evidence existed to support the
commission’s finding that Juarez, an independent contractor, was
not entitled to recover from Woolfrey Construction as a
statutory employer under Code § 65.2-302. A decision of the
Workers’ Compensation Commission which considers whether an
entity is a statutory employer for purposes of recovery under
the workers’ compensation statute must be affirmed where there
is credible evidence to support the findings of the commission.
See Bogese Builder v. Robertson, 17 Va. App. 700, 440 S.E.2d 622(1994). Citing Reynolds v. Yellow Cab Co., 75 O.W.C. 76, 78-79
(1996), the commission stated “an independent contractor is not
an employee or statutory employee merely because he performs
work in the trade, business, occupation or profession of the
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employer and which is usually performed by employees, if the
employer retains no right to control the manner in which the
work is performed, as is the case here.” We find that credible
evidence existed in the record to support the commission’s
finding that Woolfrey was not Juarez’s statutory employer, and
we uphold the denial of benefits under Code § 65.2-302.
IV. CONCLUSION
We find that the full commission complied with the review
process prescribed by the Workers’ Compensation Act. In
addition, our review of the record finds credible evidence to
support the decision of the commission to deny benefits to
Juarez. The decision of the commission is affirmed.
Affirmed.
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