Stephen M Massaro v. Blue Chip Painting

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
STEPHEN M. MASSARO
MEMORANDUM OPINION*
v. Record No. 3062-02-1 PER CURIAM
MARCH 25, 2003
BLUE CHIP PAINTING AND
PRINCETON INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(David A. Buzard; Bennett and Zydron, P.C.,
on brief), for appellant.
(Allen Lotz; Huff, Poole & Mahoney, P.C., on
brief), for appellees.
Stephen M. Massaro contends the Workers' Compensation
Commission erred in finding that he was an independent
contractor rather than an employee of Blue Chip Painting. Upon
reviewing the record and the parties' briefs, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the commission's decision. Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). In
denying Massaro's application, the deputy commissioner found as
follows:
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
From all the evidence, we conclude that
[Massaro] has not borne his burden to prove
that he was an employee. The evidence is
almost in [equipoise] on this point, with
certain facts tending to show an
employer/employee relationship and other
facts tending to indicate a
contractor/independent contractor
relationship. We find that [Massaro] was to
be paid "by the job", not by the day. We
also find that [Massaro] held himself out to
[Joseph] Knehr[, the owner of Blue Chip,] as
the proprietor of S.M.S.A. Painting
Contractors. While Knehr retained the right
to dictate the result to be achieved, it is
not clear to us that he retained the right
to control the means and methods of the
work, despite Knehr having instructed
[Massaro] to prime bare wood before applying
paint. We think that the parties intended
their relationship to be one of
contractor/subcontractor rather than
employer/employee.
Affirming the deputy commissioner's decision, the
commission found as follows:
[W]e find that [Massaro] has described an
employment relationship. [He] testified
that . . . Knehr exerted a significant
degree of control over him by dictating the
hours he was to work and the materials he
was to use. [Massaro] also denied that he
was allowed to hire an assistant to help him
with the job. All of these factors, if
true, support the existence of an
employee/employer relationship.
However, . . . Knehr's description of
his relationship with [Massaro] differs
greatly from that described by [Massaro].
. . . Knehr testified that he contracted
with [Massaro] to complete one particular
project for a set price, regardless of how
long it took [Massaro] to paint the house.
He also testified that he had never worked
with [Massaro] before this particular job.
In addition, . . . Knehr denied that he
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"controlled" [Massaro's] day-to-day
activities by dictating the hours to be
worked by [Massaro], by requiring [Massaro]
to use his equipment, or by prohibiting
[Massaro] from using an assistant. We find
that the combination of these factors, if
true, support the conclusion that [Massaro]
was an independent contractor of Blue Chip
Painting rather than an employee.
The deputy commissioner implicitly
found . . . Knehr's testimony to be more
credible than that of [Massaro], and we
accept his conclusion in this regard.
Massaro contends the commission erred, as a matter of law,
by ruling that the deputy commissioner "implicitly found"
Knehr's testimony to be more credible than Massaro's testimony.
He argues the deputy commissioner made no explicit findings
concerning the credibility of the witnesses. We disagree.
The commission found that Massaro's testimony, if accepted,
supported his contention that he was an employee. On the other
hand, Knehr's testimony, if accepted, supported his contention
that Massaro was an independent contractor. Although the deputy
commissioner found the evidence was "almost" in equipoise, he
ruled in favor of Blue Chip. The only witnesses who testified
at the hearing were Massaro and Knehr. In other words, the
deputy commissioner found, upon his review of the disputed
evidence, that he believed Knehr's testimony. Thus, credible
evidence supports the commission's conclusion that the deputy
commissioner implicitly found Knehr's testimony to be more
credible than Massaro's testimony.
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Moreover, the commission weighed the evidence, which
presented substantial conflicts, and found in favor of Blue
Chip. "We are bound by that factual finding." Grove v. Allied
Signal, Inc., 15 Va. App. 17, 19, 421 S.E.2d 32, 33 (1992). The
commission's resolution of the factual discrepancies between the
testimony of Massaro and Knehr is not reviewable by this Court.
"Matters of weight and preponderance of the evidence, and the
resolution of conflicting inferences fairly deducible from the
evidence, are within the prerogative of the commission and are
conclusive and binding on the Court of Appeals." Kim v.
Sportswear, 10 Va. App. 460, 465, 393 S.E.2d 418, 421 (1990)
(citation omitted). Based upon the commission's factual
determination upon conflicting evidence, we cannot find as a
matter of law that Massaro's evidence sustained his burden of
proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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