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COSGROVE v. SOWERS, et al.

VA Court of Appeals



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COSGROVE

v.

SOWERS, et al.


OCTOBER 3, 2000

Record No. 1337-00-3

Present: Judges Elder, Bray and Senior Judge
Overton

LINDA A. COSGROVE

v.

CURTIS R. SOWERS AND MARK A. SOWERS,

A PARTNERSHIP, HUCKLEBERRY DAIRY

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION


MEMORANDUM OPINION[1] PER CURIAM

(Deborah W. Dobbins; Robin J. Kegley; Gilmer,
Sadler, Ingram, Sutherland & Hutton, on brief), for
appellant.

(Kendall O. Clay, on brief), for appellee.

Linda A. Cosgrove (claimant) contends that the
Workers’ Compensation Commission erred in finding that it lacked
jurisdiction to consider claimant’s claim on the ground that
Curtis R. Sowers and Mark A. Sowers, A Partnership, Huckleberry
Dairy (employer) did not regularly have in service more than two
full-time employees at the time of claimant’s June 28, 1997
injury by accident. 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. See
Rule 5A:27.

It was undisputed that at the time of
claimant’s accident, employer had two full-time employees,
claimant and Fred Weddle. The issue in dispute was whether either
Jason Conner or James Vest, both high school students at the
time, were full-time employees of employer. The commission held
that Conner and Vest were not full-time employees, and,
therefore, employer did not regularly have in service more than
two full-time employees in the operation of its dairy farm. In so
ruling, the commission found as follows:

[C]laimant testified that she and Weddle worked
approximately 91 hours per week each. She stated that she
received a salary, housing provisions, vacation time, and sick
leave. By comparison, Conner and Vest generally worked less than
40 hours per week each. They were paid by the hour and received
no benefits. There was no evidence that either Conner or Vest was
required to work a set number of hours. Instead, Conner testified
to his fluctuating schedule, varying hours, and irregular
responsibilities. He thought of himself as a part-time employee.
The claimant described Conner as someone who "filled
in" on the weekends. Vest testified that he considered
himself to be part-time, based on his full-time commitment to
school. [Mark] Sowers confirmed that Vest worked on an irregular
basis depending upon available jobs. Conner, Vest, and [Adam] Lowe all attended school full-time; thus, it was impossible for
the employer to utilize them in a full-employment capacity.

Code ? 65.2-101(2)(g) provides that a
farm worker is not a covered "employee" under the
Workers’ Compensation Act "unless the employer regularly has
in service more than two full-time employees." In Lynch
v. Thomas E. Lee & Sons
, 12 Va. App. 933, 406 S.E.2d 423
(1991), we recognized that "’full-time employment’ imports a
sense of permanence coupled with a commitment between the
employer and employee whereby the latter’s normal employment
capacity is essentially utilized." Id. at 934, 406
S.E.2d at 424. "’The Commission’s findings of fact are
binding on appeal where supported by credible evidence.’" Lynch
v. Lee
, 19 Va. App. 230, 234, 450 S.E.2d 391, 393 (1994)
(citation omitted).

The commission’s factual findings are supported
by credible evidence, including the testimony of claimant, Vest,
Conner, and Sowers. In addition, employer’s documentation
reflecting its employees’ hours and wages during the relevant
time period also constitutes credible evidence to support the
commission’s findings. Thus, those findings are binding upon us
on appeal. See id. Based upon those factual
findings, the commission could infer that no "sense of
permanence" existed in the relationship between employer,
Conner, and Vest and that because Conner and Vest were full-time
students, employer could not have utilized their normal
employment capacity. Credible evidence proved that employer,
Conner, and Vest all understood that Conner and Vest were
full-time students who worked as their school and school-related
activities permitted and as the needs of employer required given
the seasonal nature of farm work. Accordingly, the commission did
not err in holding that it did not have jurisdiction over
claimant’s claim because employer did not regularly have in
service more than two full-time employees.

For these reasons, we affirm the commission’s
decision.

Affirmed.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for
publication.

 

 

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