Opinion
Record No. 2520-94-4
Decided: April 25, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jerry O. Talton, on brief), for appellant. Appellant submitting on brief.
(Roger S. Mackey, on brief), for appellees. Appellees submitting on brief.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
John Sheridan (claimant) appeals a decision of the Workers' Compensation Commission (commission) denying his application for benefits on the ground that he did not prove that he was an "employee" of Skyline Express, Inc. (Skyline) at the time of his September 23, 1993 accident. Claimant contends that he proved an implied contract of hire as a matter of law. We disagree. Finding no error, we affirm the commission's decision.
On appeal, we view the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). A claimant seeking benefits under the Workers' Compensation Act bears the burden of proving that he is an employee within the definition of Code Sec. 65.2-101. See Behrensen v. Whitaker, 10 Va. App. 364, 366, 392 S.E.2d 508, 509 (1990). Unless we can say as a matter of law that claimant's evidence proved that he was an employee of Skyline at the time of his September 23, 1993 accident, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
"Under Code Sec. 65.1-4 [now Code Sec. 65.2-101], the term 'employee' includes 'every person, including a minor, in the service of another under any contract of hire or apprenticeship, written or implied. . . .' " Jackson v. Ratcliff Concrete Co., 8 Va. App. 592, 594, 382 S.E.2d 494, 495 (1989).
"An implied contract of hire exists where one party has rendered services or labor of value to another under circumstances which raise the presumption that the parties intended and understood that they were to be paid for, or which a reasonable man in the position of the person receiving the benefit of the services or labor would or ought to know that compensation or remuneration of some kind was to be exchanged for them."
James v. Wood Prods. of Virginia, 15 Va. App. 754, 756, 427 S.E.2d 224, 225 (1993) (quoting Charlottesville Music Ctr., Inc. v. McCray, 215 Va. 31, 35, 205 S.E.2d 674, 678 (1974)).
It was undisputed that claimant did not enter into a written contract of hire with Skyline. In holding that claimant's evidence did not prove the existence of an implied contract of hire, the commission found as follows:
Both the claimant and Mr. Rohrbaugh testified that a pre-employment road test was anticipated. The claimant contends that during a road test freight is generally not transported; that a 100 mile trip is not a road test; and that for such a long trip he would anticipate payment. However, when we consider the application process included a drug test and certification which had not been completed, along with the testimony that the Timberville route was routinely used, we find that the claimant was undergoing a pre-employment test at the time of his injury and was not an employee. In addition, while wages in general were discussed, no specific wage arrangement was made for the claimant's services. Based on the evidence, the full Commission cannot find that there was a meeting of the minds sufficient to establish a contract for hire.
John Rohrbaugh, president and owner of Skyline, testified that at the time of his injury, claimant was involved in a pre-employment road test. Rohrbaugh stated that he did not intend to hire claimant until the road test, a drug test, and a certification were satisfactorily completed. Rohrbaugh also stated that he did not agree to pay claimant for the trip to Timberville, which constituted the road test. In its role as fact finder, the commission was entitled to accept Rohrbaugh's testimony and to reject the contrary testimony of claimant. Rohrbaugh's testimony supports the commission's finding that claimant failed to prove a contract of hire, an essential element of the employee/employer relationship. "The fact that there is contrary evidence in the record is of no consequence if credible evidence supports the commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). Based upon this record, we cannot say as a matter of law that claimant's evidence proved that he was an employee of Skyline as that term is defined under the Workers' Compensation Act.
Accordingly, we affirm the commission's decision.
Affirmed.