COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
TACTICAL GROUP, INC.
v. Record No. 1675-95-3 MEMORANDUM OPINION * PER CURIAM JIMMY RAY LUCAS, DECEMBER 29, 1995 J. H. PENCE COMPANY, FIRST OF GEORGIA INSURANCE COMPANY, AND UNINSURED EMPLOYERS' FUND
AND UNINSURED EMPLOYERS' FUND
v. Record No. 1635-95-3
TACTICAL GROUP, INC., JIMMY RAY LUCAS, J. H. PENCE COMPANY, AND FIRST OF GEORGIA INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mark D. Kidd; Osterhoudt, Ferguson, Natt, Aheron & Agee, P.C., on brief), for Tactical Group, Inc.
(Terry L. Armentrout; Roger Ritchie & Partners, P.L.C., on brief), for Jimmy Ray Lucas.
(William C. Walker; Donna White Kearney; Taylor & Walker, on briefs), for J. H. Pence Company and First of Georgia Insurance Company.
(James S. Gilmore, III, Attorney General; John J. Beall, Jr., Senior Assistant Attorney General; Christopher D. Eib, Assistant Attorney General, on brief), for Uninsured Employers' Fund.
Tactical Group, Inc. ("Tactical") contends that the Workers'
Compensation Commission erred in finding that (1) Jimmy Ray Lucas
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. was an employee of Tactical rather than an independent
contractor; (2) Tactical employed three or more workers, making
it subject to the Workers' Compensation Act ("the Act"); (3)
Lucas earned an average weekly wage of $613.02; and (4) Lucas
proved he sustained an injury by accident arising out of and in
the course of his employment. The Uninsured Employer's Fund
("the Fund") cross-appeals and contends that the commission erred
in (1) allowing J.H. Pence Company ("Pence"), the statutory
employer, to raise a Code § 65.2-600 notice defense at the July
27, 1994 hearing; (2) finding that Lucas did not give Pence
timely notice of his September 20, 1993 injury by accident; and
(3) refusing to dismiss Lucas' application when he failed to
appear at the second evidentiary hearing on January 12, 1995.
Upon reviewing the record and the briefs of the parties, we
conclude that these appeals are without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
TACTICAL'S APPEAL: RECORD NO. 1675-95-3 I. Employee vs. Independent Contractor
"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).
2 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, 893
(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.
Claimant testified that Tazwell K. McDole, Tactical's owner,
hired him to install school lockers in Spotsylvania County.
McDole paid Lucas by the hour, not by the job. Lucas did not use
his own tools. Instead, he used tools provided by Tactical or
Pence. McDole decided when and where Lucas would work. On
various occasions, McDole showed Lucas the layout of the jobsite.
Lucas built the lockers and McDole retained responsibility over
their placement. According to Lucas and co-workers Reese Painter
and Mike Woodward, Lucas supervised the job, keeping time cards
and distributing paychecks to other employees for McDole.
The testimony of claimant, Painter, Woodward, and McDole
provides credible evidence to support the commission's finding
that the right to control the Spotsylvania job clearly rested
with McDole. Accordingly, the commission did not err in ruling
3 that Lucas was Tactical's employee.
4 II. Applicability of the Act to Tactical
An employer who has three or more employees regularly in
service in the same business in Virginia is subject to the Act.
Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448 (1987).
In ruling that the Act applied to Tactical, the commission
found as follows: While McDole testified that he is merely a "job shopper" who finds work for Pence, the weight of the evidence establishes that McDole, in his business capacity with Tactical, is in the business of installing school equipment. He has hired three or more employees in order to carry out that business. The evidence does not support a finding that Tactical was subcontracting this work to independent contractors. Each worker was paid on an hourly basis, and Tactical had the ability to control monetary disbursement, work conditions, and the end result. We find that the co-workers were in the same status as [Lucas], i.e., an employee of Tactical.
The testimony of claimant, Painter, Woodward, and McDole provides
credible evidence to support these findings. Accordingly, the
commission did not err in concluding that the Act applied to
Tactical.
III. Average Weekly Wage
The commission calculated Lucas' $613.03 average weekly wage
by dividing the net wages he actually earned on the Spotsylvania
job ($3,503.00) by the forty days he worked for Tactical.
Tactical contends that the commission erred by not dividing the
$3503.00 by fifty-two weeks. We disagree.
"It was the duty of the Commission to make the best possible
5 estimate of . . . impairments of earnings from the evidence
adduced at the hearing, and to determine the average weekly
wage . . . ." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.
435, 441, 339 S.E.2d 570, 573 (1986). In the absence of a fifty-
two week pay history, the average weekly wage may be calculated
by "dividing the earnings during that period [the employee
worked] by the number of weeks . . . which the employee earned
wages . . . , provided that results fair and just to both parties
will be thereby obtained." Code § 65.2-101 ("Average weekly
wage"). The calculation of average weekly wage "is a question of
fact to be determined by the Commission which, if based on
credible evidence, will not be disturbed on appeal." Id. "Thus,
if credible evidence supports the commission's findings regarding
the claimant's average weekly wage, we must uphold those
findings." Chesapeake Bay Seafood House v. Clements, 14 Va. App.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
TACTICAL GROUP, INC.
v. Record No. 1675-95-3 MEMORANDUM OPINION * PER CURIAM JIMMY RAY LUCAS, DECEMBER 29, 1995 J. H. PENCE COMPANY, FIRST OF GEORGIA INSURANCE COMPANY, AND UNINSURED EMPLOYERS' FUND
AND UNINSURED EMPLOYERS' FUND
v. Record No. 1635-95-3
TACTICAL GROUP, INC., JIMMY RAY LUCAS, J. H. PENCE COMPANY, AND FIRST OF GEORGIA INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mark D. Kidd; Osterhoudt, Ferguson, Natt, Aheron & Agee, P.C., on brief), for Tactical Group, Inc.
(Terry L. Armentrout; Roger Ritchie & Partners, P.L.C., on brief), for Jimmy Ray Lucas.
(William C. Walker; Donna White Kearney; Taylor & Walker, on briefs), for J. H. Pence Company and First of Georgia Insurance Company.
(James S. Gilmore, III, Attorney General; John J. Beall, Jr., Senior Assistant Attorney General; Christopher D. Eib, Assistant Attorney General, on brief), for Uninsured Employers' Fund.
Tactical Group, Inc. ("Tactical") contends that the Workers'
Compensation Commission erred in finding that (1) Jimmy Ray Lucas
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. was an employee of Tactical rather than an independent
contractor; (2) Tactical employed three or more workers, making
it subject to the Workers' Compensation Act ("the Act"); (3)
Lucas earned an average weekly wage of $613.02; and (4) Lucas
proved he sustained an injury by accident arising out of and in
the course of his employment. The Uninsured Employer's Fund
("the Fund") cross-appeals and contends that the commission erred
in (1) allowing J.H. Pence Company ("Pence"), the statutory
employer, to raise a Code § 65.2-600 notice defense at the July
27, 1994 hearing; (2) finding that Lucas did not give Pence
timely notice of his September 20, 1993 injury by accident; and
(3) refusing to dismiss Lucas' application when he failed to
appear at the second evidentiary hearing on January 12, 1995.
Upon reviewing the record and the briefs of the parties, we
conclude that these appeals are without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
TACTICAL'S APPEAL: RECORD NO. 1675-95-3 I. Employee vs. Independent Contractor
"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).
2 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, 893
(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.
Claimant testified that Tazwell K. McDole, Tactical's owner,
hired him to install school lockers in Spotsylvania County.
McDole paid Lucas by the hour, not by the job. Lucas did not use
his own tools. Instead, he used tools provided by Tactical or
Pence. McDole decided when and where Lucas would work. On
various occasions, McDole showed Lucas the layout of the jobsite.
Lucas built the lockers and McDole retained responsibility over
their placement. According to Lucas and co-workers Reese Painter
and Mike Woodward, Lucas supervised the job, keeping time cards
and distributing paychecks to other employees for McDole.
The testimony of claimant, Painter, Woodward, and McDole
provides credible evidence to support the commission's finding
that the right to control the Spotsylvania job clearly rested
with McDole. Accordingly, the commission did not err in ruling
3 that Lucas was Tactical's employee.
4 II. Applicability of the Act to Tactical
An employer who has three or more employees regularly in
service in the same business in Virginia is subject to the Act.
Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448 (1987).
In ruling that the Act applied to Tactical, the commission
found as follows: While McDole testified that he is merely a "job shopper" who finds work for Pence, the weight of the evidence establishes that McDole, in his business capacity with Tactical, is in the business of installing school equipment. He has hired three or more employees in order to carry out that business. The evidence does not support a finding that Tactical was subcontracting this work to independent contractors. Each worker was paid on an hourly basis, and Tactical had the ability to control monetary disbursement, work conditions, and the end result. We find that the co-workers were in the same status as [Lucas], i.e., an employee of Tactical.
The testimony of claimant, Painter, Woodward, and McDole provides
credible evidence to support these findings. Accordingly, the
commission did not err in concluding that the Act applied to
Tactical.
III. Average Weekly Wage
The commission calculated Lucas' $613.03 average weekly wage
by dividing the net wages he actually earned on the Spotsylvania
job ($3,503.00) by the forty days he worked for Tactical.
Tactical contends that the commission erred by not dividing the
$3503.00 by fifty-two weeks. We disagree.
"It was the duty of the Commission to make the best possible
5 estimate of . . . impairments of earnings from the evidence
adduced at the hearing, and to determine the average weekly
wage . . . ." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.
435, 441, 339 S.E.2d 570, 573 (1986). In the absence of a fifty-
two week pay history, the average weekly wage may be calculated
by "dividing the earnings during that period [the employee
worked] by the number of weeks . . . which the employee earned
wages . . . , provided that results fair and just to both parties
will be thereby obtained." Code § 65.2-101 ("Average weekly
wage"). The calculation of average weekly wage "is a question of
fact to be determined by the Commission which, if based on
credible evidence, will not be disturbed on appeal." Id. "Thus,
if credible evidence supports the commission's findings regarding
the claimant's average weekly wage, we must uphold those
findings." Chesapeake Bay Seafood House v. Clements, 14 Va. App.
143, 146, 415 S.E.2d 864, 866 (1992).
The record proved that Lucas worked forty days on the
project. Thus, the commission reasoned that "[d]ividing the
wages earned with this employer by 52 weeks would not produce an
equitable result." Nothing in the record suggests that this
method was not fair and just to both parties. Credible evidence
supports the commission's method of calculating Lucas' average
weekly wage, and it is not contrary to the provisions of Code
§ 65.2-500. Accordingly, the commission did not err in awarding
Lucas benefits based upon an average weekly wage of $613.03.
6 IV. Injury by Accident
Tactical argues that Lucas was not credible, and, therefore,
the commission erred in finding that he proved that he sustained
an injury by accident arising out of and in the course of his
employment on September 20, 1993. However, "[i]n determining
whether credible evidence exists, the appellate court does not
retry the facts, reweigh the preponderance of the evidence, or
make its own determination of the credibility of the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991).
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). Lucas
testified that, on September 20, 1993, he sustained a back injury
when he fell while carrying lockers down a flight of stairs. The
commission, in its role as fact finder, reviewed the witnesses'
testimony and the medical records, and resolved any
inconsistencies in favor of Lucas. Lucas' testimony is
consistent with the history he reported to Dr. Frederick Fox, his
treating physician. Lucas' testimony, the medical records, and
McDole's testimony (that Lucas notified him of the accident
several days after it occurred) provide credible evidence to
support the commission's finding that Lucas sustained a
compensable back injury on September 20, 1993. Thus, we are
bound by this finding on appeal.
7 THE FUND'S CROSS-APPEAL: RECORD NO. 1635-95-3
I. and II. Pence's Notice Defense
The Fund contends that the commission erred in allowing
Pence to raise a lack of notice defense, Code § 65.2-600, at the
July 27, 1994 hearing because Pence did not list lack of notice
as one of its defenses in its answers to interrogatories. The
record supports the commission's finding that, at the beginning
of the July 1994 hearing, Pence adopted all of Tactical's
defenses, which included a lack of notice. Thus, the Fund knew
from the beginning of the hearing that Pence intended to rely
upon lack of notice as a defense. The record also shows that the
deputy commissioner provided the Fund with an adequate
opportunity to take further evidence on Pence's defense at the
second evidentiary hearing held on January 12, 1995. Because the
record shows that Pence's course of action did not result in
prejudice to the Fund, we cannot say that the commission abused
its discretion in allowing Pence to rely upon the lack of notice
as a defense. Moreover, credible evidence, including the testimony of
Lucas and McDole, supports the commission's finding that Pence
did not receive timely notice of Lucas' accident as required by
Code § 65.2-600. Although McDole testified that he informed
Pence's general manager that someone had been injured on a
Stafford County job, he did not testify that he specifically
notified Pence of Lucas' September 20, 1993 accident on the
8 Spotsylvania County job. When Stephen P. Hawkins, vice president
of Pence, was questioned concerning the notice issue, Lucas
stipulated that he did not give Pence timely notice of his
accident.
Because credible evidence supports the commission's finding
that Pence did not receive timely notice of Lucas' accident as
required by Code § 65.2-600, the commission did not err in
dismissing Pence as a party defendant. III. Lucas' Failure to Appear at Second Hearing
The Fund also contends that the commission erred in not
dismissing Lucas' application because he failed to appear at the
second hearing on January 12, 1995. The record shows that the
commission informed all parties that the purpose of the second
hearing was to resolve the Show Cause Order against Tactical and
to take additional evidence on the notice issue.
Lucas stipulated at the first hearing that he did not give
timely notice of his accident to Pence. Thus, because Lucas had
no further evidence to offer on the notice issue and the show
cause issue did not concern him, Lucas' counsel informed the
deputy commissioner that he and Lucas would not appear at the
second hearing unless ordered to do so. If the Fund wanted to
take additional evidence from Lucas concerning the notice issue,
the Fund could have ensured Lucas' attendance at the second
hearing. The Fund did not request a subpoena, and Lucas did not
appear.
9 Based upon this record, we cannot say that the Commission
abused its discretion by refusing to dismiss Lucas' application.
For the reasons stated, we affirm the commission's decision.
Affirmed.