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Drywall Systems, Inc. v. Dykes

Court of Appeals of Virginia
Sep 6, 1994
Record No. 0689-94-4 (Va. Ct. App. Sep. 6, 1994)

Opinion

Record No. 0689-94-4

Decided: September 6, 1994

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Affirmed.

(Benjamin J. Trichilo; Lewis, Trichilo, Bancroft, McGavin Horvath, on briefs), for appellants.

(Gary M. Pearson; Pearson and Pearson, on brief), for appellee.

Present: Judges Baker, Elder and Fitzpatrick


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Drywall Systems, Inc. and its insurer (hereinafter collectively referred to as "Drywall") contend that the Workers' Compensation Commission (commission) erred in finding that (1) Dennis Leo Dykes (claimant) was its employee, rather than an independent contractor, at the time he sustained a compensable injury by accident on September 2, 1992; and (2) there was insufficient evidence of fraud, misrepresentation, imposition, or mistake to vacate the January 25, 1993 award.

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.

"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). Upon 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 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 366-67, 392 S.E.2d at 509-10.

In denying Drywall's application to vacate the award, the commission found that William Barber (Barber), the owner of Drywall, maintained close control over the work that Richard Powell (Powell) and claimant were to perform. This finding is supported by credible evidence. Barber testified that he instructed the men to arrive at 7:00 a.m., and that he was at the worksite when claimant arrived. Claimant and Powell worked alongside Barber's employees. Barber saw the employees every twenty to thirty minutes. Barber specifically instructed claimant and the others on the manner in which the drywall was to be hung, using screws rather than nails and glue. He also instructed them to apply tape and joint compound as they finished a portion of the wall, contrary to the usual practice. Claimant and Powell provided their own hand tools, which is customary in the trade. However, Barber provided the supplies, materials, and scaffolding.

This record supports a finding that, notwithstanding the fact that claimant was selected and brought to the worksite by Powell, Drywall controlled not only the result, but also the means and methods by which claimant was to accomplish the work. Thus, we find that credible evidence exists to support the commission's findings, and those findings indicate that claimant was Drywall's employee, not an independent contractor.

The commission's finding that there was insufficient evidence of fraud, misrepresentation, imposition, or mistake is supported by credible evidence which proved that Drywall was claimant's employer. Since Drywall is the appropriate party to bear the burden of paying compensation to claimant, there is no basis for vacating the award entered against Drywall.

For the reasons stated, we affirm the commission's decision.

Affirmed.


Summaries of

Drywall Systems, Inc. v. Dykes

Court of Appeals of Virginia
Sep 6, 1994
Record No. 0689-94-4 (Va. Ct. App. Sep. 6, 1994)
Case details for

Drywall Systems, Inc. v. Dykes

Case Details

Full title:DRYWALL SYSTEMS, INC. AND WEST AMERICAN INSURANCE COMPANY v. DENNIS LEO…

Court:Court of Appeals of Virginia

Date published: Sep 6, 1994

Citations

Record No. 0689-94-4 (Va. Ct. App. Sep. 6, 1994)