Opinion
Record No. 2132-93-1
Decided: May 31, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(William C. Walker; Taylor Walker, on brief), for appellants.
No brief for appellee.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the opening brief of H. Gypsum Systems and its insurer (hereinafter collectively referred to as "employer" or "Gypsum"), we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
Employer contends that the commission erred in finding that Richard J. Kaufman (claimant) was its employee rather than an independent contractor, pursuant to Code Sec. 65.2-101, at the time he sustained a compensable injury by accident on October 20, 1992.
"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.2d 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, 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. Behrensen, 10 Va. App. at 366-67, 392 S.E.2d at 509-10.
In reversing the deputy commissioner and finding that claimant was Gypsum's employee, the full commission made the following factual findings:
Hobbs [the owner of Gypsum, a sole proprietorship] bid on jobs to perform and, after receiving the contract, he assembled the people necessary to perform the job. When asked how many drywall hangers he had, Hobbs stated, "I have different ones. You know, it all depends on how much work I've got." He regularly used the claimant and Henry Turner. He also provided the heavy equipment necessary to hang the drywall. The claimant was paid every Friday, based on the number of boards hung during the week. Hobbs directed the drywall hangers as to the job site, the work to be performed, and he inspected and criticized their work. Hobbs was on the job site with the hangers on a daily basis, hanging drywall himself. Hobbs also used five or six finishers per year, and he paid them in the same manner as he paid the drywall hangers. He also supervised the finishers in the same way as the drywall hangers, but he was not on the job all day with the finishers.
Claimant testified that he had worked for Gypsum for approximately seven months prior to his compensable injury. Claimant and Hobbs stated that Gypsum controlled where and when claimant was to show up for work. They also testified that Hobbs trained claimant in drywall hanging, and it can be inferred from the evidence that Gypsum retained the right to fire claimant. Claimant was paid wages on a per piece basis. Gypsum provided wallboard and scaffolding, if necessary, and all of the heavy equipment used to hang the drywall. Hobbs stated that he supervised claimant's work on a daily basis. Hobbs reviewed claimant's work to ensure that the drywall was hung properly and, if necessary, Hobbs would instruct claimant to fix any errors that might exist.
This record supports a finding that employer controlled not only the result, but also the means and methods by which the work was to be accomplished. Thus, we find that credible evidence exists to support the commission's findings, and those findings indicate that claimant was Gypsum's employee, not an independent contractor.
For the reasons stated, we affirm the commission's decision.
Affirmed.