Opinion
Record No. 0615-92-4
January 12, 1993
FROM THE WORKERS' COMPENSATION COMMISSION
Steven H. Theisen (Midkiff Hiner, on brief), for appellants.
No brief or argument for appellee.
Present: Judges Baker, Coleman and Fitzpatrick
Argued at Alexandria, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Corporate Limousine Service, Incorporated and its insurer Old Republic Insurance Company (jointly referred to as employer) appeal from a decision of the Workers' Compensation Commission awarding Jose G. Gomez (claimant) compensation benefits. The employer contends that the commission erred in finding that the claimant was an employee and not an independent contractor and, alternatively, that the commission erred in finding that the claimant's injury arose out of and in the course of his employment. Finding no merit in the employer's appeal, we affirm the award of the commission.
BACKGROUND
The parties are familiar with the facts, thus, we restate only those facts necessary to amplify our decision. Claimant was a chauffeur who drove a limousine which was owned, fueled and repaired by employer. In 1984, the parties entered into a written agreement which provided that the claimant would render chauffeuring services on behalf of the employer in vehicles furnished to the claimant by the employer. The agreement further provided that:
The parties to this Agreement intend that [Mr. Gomez] shall be an independent Contractor, engaged by CLS to perform the services described in Paragraph 1 hereof. Nothing contained in this Agreement shall be construed as creating an employer-employee relationship between CLS and [Mr. Gomez].
In addition, the agreement stated that the employer would not provide compensation or unemployment insurance and that the claimant would "be solely responsible for paying any and all income tax, self-employment tax, or other taxes for which he may become liable as a result of performing services under" the agreement. Despite these terms, the employer did provide workers' compensation insurance for the claimant, and the employer informed the claimant of such coverage prior to the date of injury.
The claimant was free to decline jobs offered by the employer and to work for others. No evidence that the claimant worked for anyone other than the employer since 1984 was presented. The employer required the claimant to wear a dark suit, white shirt, necktie and black shoes while he was on duty. The claimant had no set work hours. The employer called him at home to tell him when there was a job to be done. He would then drive to the employer's office, get the limousine, and pick-up the customers at the location designated by the employer. Upon completion of each trip, the claimant drove back to the employer's office and dropped off the limousine. The employer always retained the power to hire and fire the claimant.
The claimant was ordinarily paid a one third commission plus gratuities on the fare that the employer received for the services he performed. However, there were occasions where the claimant was paid a flat hourly rate. The customary procedure for paying the claimant was for him to travel to the employer's place of business where the owner, Mr. Rouse, would reconcile the books and then pay the claimant monies due him.
On December 27, 1989, the date of the injury, Mr. Rouse and the claimant agreed to meet to go over the books at the employer's office and issue him a paycheck. The parties dispute whether there was a specific time for the meeting. The employer contends that the parties agreed to meet between 8:00 a.m. and 9:00 a.m. The claimant testified that there was no specific time for their meeting and that Mr. Rouse had indicated that a check would be ready for him when he arrived. Mr. Rouse waited for the claimant until 11:00 a.m. and then left. Claimant arrived at the employer's office at noon. He waited at the office for Mr. Rouse until approximately 5:00 p.m., when it began to snow. The claimant fell on snow and ice while leaving the employer's office and broke his ankle.
EMPLOYER-EMPLOYEE RELATIONSHIP
The employer argues that the claimant was an independent contractor and, therefore, not entitled to employee benefits under the Workers' Compensation Act. We disagree. Generally, "a person 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." Richmond Newspapers v. Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843 (1982). "The right of control is the determining factor in ascertaining" whether the claimant was an employee or an independent contractor. Intermodal Servs., Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d 221, 224 (1988). An employer's right to control includes "the power to specify the result to be attained [and] the power to control 'the means and methods by which the result is to be accomplished.'" Id. (quoting Gill, 224 Va. at 98, 294 S.E.2d at 843); see also Metropolitan Cleaning Corp. v. Crawley, 14 Va. App. 261, 264, 416 S.E.2d 35, 37-38 (1992).
"What constitutes an employee is a question of law;" however, whether a specific person falls within that definition "is usually a question of fact." Crawley, 14 Va. App. at 264, 416 S.E.2d at 37 (quoting Smith, 234 Va. at 600, 364 S.E.2d at 223). The evidence shows that the parties did not perform in accordance with the terms of their written agreement. Contrary to the stated terms of the agreement, the commission found that the employer did in fact provide workers' compensation insurance for the claimant and that the employer occasionally paid the claimant a flat hourly rate.
In addition, the employer reserved significant control over the claimant's work. Mr. Rouse conceded that he retained the right to hire and fire the claimant. Further, the employer determined the claimant's working hours by selecting which jobs to assign to him. The employer instructed the claimant to pick up customers at designated locations, and the claimant operated equipment that was owned and maintained by the employer. The commission found that the employer required the claimant to wear a uniform while he was on job assignments. Additionally, there was no evidence that the claimant had ever worked for any other person during the five years that he worked for the employer.
We reject the employer's argument that the claimant's freedom to select the route taken to the designated locations and the mere fact that the claimant was the only person in physical control of the vehicle while on job assignments was sufficient to establish that the claimant was an independent contractor. These activities, while relevant, are not determinative. The commission properly viewed these activities as purely ministerial functions of an employee. Further, the evidence presented showing the deviation from the terms of the written agreement provided credible evidence from which the commission was entitled to conclude that the written agreement did not set forth the entire contractual relationship between the parties. Accordingly, the contract was not dispositive of the claimant's status, but was properly considered as relevant evidence.
On appellate review, we "construe the evidence in the light most favorable to the party prevailing" below. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). "If there is evidence, or reasonable inferences can be drawn from the evidence, to support the commission's findings, they will not be disturbed on review, even though there is evidence in the record to support a contrary finding." Morris v. Badger Powhatan/Figgie Int'l Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). Accordingly, because the aforementioned evidence supports the commission's finding that the claimant was in fact an employee, we find the employer's appeal of this issue without merit.
IN THE COURSE OF EMPLOYMENT
The employer also challenges the commission's finding that the claimant's injury occurred in the course of employment. The employer argues that the claimant was not on the employer's property to perform any work related services and that he lingered unreasonably on the property for five hours to pick up his paycheck. Therefore, the employer contends that the injury sustained by the claimant while leaving the office did not occur in the course of employment.
Under well established principles of the Workers' Compensation Act, "[t]he burden is upon a claimant to prove by a preponderance of the evidence that he sustained a compensable injury." Virginia Dep't of Transp. v. Mosebrook, 13 Va. App. 536, 537, 413 S.E.2d 350, 351 (1992). The claimant must prove that the injury arose out of and in the course of his employment. The elements "'[a]rising out of' and 'in the course of' are used conjunctively and are not synonymous. Both requirements must be fulfilled." Virginia Polytechnic Inst. and State Univ. v. Wood, 5 Va. App. 72, 75, 360 S.E.2d 376, 378 (1987) (citations omitted).
The phrase 'in the course of' employment refers to the time, place and circumstances under which the accident occurred. [A]n accident occurs in the 'course of employment' when it takes place within the period of employment, at a place where the employee may be reasonably expected to be, and while he is reasonably fulfilling the duties of his employment or is doing something which is reasonably incidental thereto.
Thore v. Chesterfield County Bd. of Supervisors, 10 Va. App. 327, 331, 391 S.E.2d 882, 885 (1990) (quoting Conner v. Bragg, 203 Va. 204, 208, 123 S.E.2d 393, 396 (1962)).
"However, an employee is deemed to be within the course of employment for a reasonable period while he winds up his affairs." Id. (citing 1A A. Larson, The Law of Workmen's Compensation § 26.10 (1989)). In the case at bar, the commission found that the parties agreed to meet at the employer's office on the date of injury to reconcile the books and pay the claimant for the services he rendered. Mr. Rouse testified that "as a rule whenever [the claimant] got paid [they] would sit down together and go over the times completely so there was no misunderstandings or discrepancies." This customary practice established by the parties is relevant to the analysis of what activities were in the course of the claimant's employment.
The employer argues that the claimant and Mr. Rouse had an appointment to review the books at a specific time on the morning of December 27, 1989, and that the claimant, having missed that appointment, was off duty when he was injured. However, the record does not establish that the parties agreed upon a fixed time period to meet. Mr. Rouse's own testimony on how the meeting was arranged was as follows:
I believe he called me and asked me if he could come in and get paid and I told him, and again I'm not sure, either he told me he could be in the next morning between 8 and 9 or I told him that — you know — that I would be available during that time because I had to go out of town and do a limousine job later that day, or later that morning.
I'm not sure of the exact details of that, but I do know this. I know that I was told that he would be there on that particular morning and I waited around until 11 o'clock and I had to leave and go do a job. I couldn't wait any longer because I had an 11:30 pick up.
(App. 24). The claimant acknowledged that he may have stated that he would be at the office between 8:00 a.m. and 9:00 a.m., but denied that he was specifically instructed to be there at that time. The commission resolved any conflict between the testimony of the parties in favor of the claimant. The commission stated that "Mr. Rouse acknowledges that the claimant was expected between 8:00 and 9:00, but it is clear from his testimony that there was no specific instruction to be there at that time." (App. 72).
Viewing this evidence in the light most favorable to the claimant, as the prevailing party below, we cannot agree with the employer that the commission's finding was erroneous. The record supports the commission's conclusion that the claimant was in the course of his employment at the time he sustained his injury. The claimant's conduct of abiding by the customary practice established by the parties to meet at the employer's office and review the books was reasonably incidental to the discharge of his duties as a limousine driver for the employer. Under these circumstances, it was not unreasonable for the claimant to wait for Mr. Rouse's return from a limousine job in Philadelphia, because the parties had agreed to meet on that date to settle up and pay the claimant his earnings.
The commission found that the claimant was an employee and that his disability was caused by an industrial accident injury arising out of and in the course of employment. Because we find that there is credible evidence in the record satisfying all the components of a compensable injury we affirm the award.
Affirmed.