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JIM'S HOME AUTO SERV. v. NIELSEN

Court of Appeals of Virginia
Jun 29, 1993
Record No. 0215-93-1 (Va. Ct. App. Jun. 29, 1993)

Opinion

Record No. 0215-93-1

June 29, 1993

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.

(Stephen A. Strickler; McCardell Inman, on briefs), for appellant.

(Keith Loren Kimball; Sykes, Carnes, Bourdon, Ahern Shapiro, on brief), for appellee.

Present: Judges Baker, Elder and Fitzpatrick.


MEMORANDUM OPINION

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


Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.

Jim's Home Auto Service, Inc. ("Jim's Auto Service" or "the employer") contends that the commission erred in (1) finding that Paul R. Nielsen was an employee of Jim's Auto Service and not an independent contractor; and (2) imposing a $500.00 fine against Jim's Auto Service for its willful refusal and neglect to insure Nielsen for workers' compensation benefits.

I.

"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, 366-67, 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 making its determination that Nielsen was an employee of Jim's Auto Service, the commission stated:

Mr. White [the owner of Jim's Auto Service] exercised control by mandating his mechanics be on call 24 hours a day. The claimant was not free to contract elsewhere, and was in fact fired once when he delayed taking a job. Mr. White set the labor charges and warranty terms for the work. He controlled the dispatch of mechanics according to qualifications, dispatched the mechanic who performed the work to correct problems, and dispatched additional mechanics to aid a mechanic in timely completion of jobs, thereby controlling the quality of the work. Although he did not tell the claimant how to perform the repair work, he would occasionally personally check on his progress.

Jim's Auto Service controlled where and when Nielsen was to show up for work. The employer trained Nielsen and also retained the right to fire Nielsen. Nielsen was paid wages by the employer on a 50% commission basis. The employer set the prices to be charged for specific repairs. It also supplied a van and various supplies to be used by Nielsen in performing the repairs.

This record supports a finding that Jim's Auto Service controlled the means and methods by which the repairs were to be accomplished. Thus, we find that credible evidence exists to support the commission's findings, and those findings indicate that Nielsen was an employee of Jim's Auto Service.

II.

The commission fined the employer $500.00 pursuant to Code § 65.2-805 for its failure to insure Nielsen for workers' compensation benefits. The Code allows the commission to impose such a fine where, as here, the employer failed to comply with the requirements of Code § 65.2-804. Accordingly, on appeal, we will not disturb the commission's decision on this issue.

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

Affirmed.


Summaries of

JIM'S HOME AUTO SERV. v. NIELSEN

Court of Appeals of Virginia
Jun 29, 1993
Record No. 0215-93-1 (Va. Ct. App. Jun. 29, 1993)
Case details for

JIM'S HOME AUTO SERV. v. NIELSEN

Case Details

Full title:JIM'S HOME AUTO SERVICE, INC. v. PAUL R. NIELSEN

Court:Court of Appeals of Virginia

Date published: Jun 29, 1993

Citations

Record No. 0215-93-1 (Va. Ct. App. Jun. 29, 1993)