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W & L CONSTRUCTION & PAVING, INC. v. SULLIVAN (unpublished)


W & L CONSTRUCTION
& PAVING, INC.
and PENNSYLVANIA MANUFACTURERS’
ASSOCIATION INSURANCE COMPANY

v.

HERCHEL FRANK SULLIVAN,
JR.

(unpublished)


MAY 27, 1997
Record No. 2764-96-3

W & L CONSTRUCTION & PAVING, INC.
and PENNSYLVANIA MANUFACTURERS’
ASSOCIATION INSURANCE COMPANY

v.

HERCHEL FRANK SULLIVAN, JR.

Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia

MEMORANDUM OPINION[1]
BY JUDGE SAM W. COLEMAN III
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

James G. Muncie, Jr. (Kathryn Spruill Lingle; Midkiff &
Hiner, P.C., on brief), for appellants.

Gerald F. Sharp (Browning, Lamie & Sharp, P.C., on brief),
for appellee.


W & L Construction & Paving, Inc. and its insurer
appeal the decision of the Workers’ Compensation Commission
granting Herchel Frank Sullivan (claimant) temporary total
disability benefits. The commission held that the claimant was a
statutory employee of W & L Construction and that the
claimant was temporarily totally disabled for psychiatric
reasons. Finding no error, we affirm the commission’s decision.

Viewed in the light most favorable to the claimant as the
prevailing party, the evidence established that the claimant was
employed by MMS Trucking at the time of his injury. MMS Trucking
is a trucking company owned and operated by Myra Sullivan, the
claimant’s sister-in-law. MMS Trucking owned one dump truck,
which was driven by the claimant and had one employee, the
claimant. Myra Sullivan negotiated and entered into a contract
with W & L Construction, a general contractor, to haul
asphalt and gravel to various construction job sites.

STATUTORY EMPLOYEE

In order to recover, the claimant had the burden of proving
that he was an employee of MMS Trucking, which was a
subcontractor of W & L Construction. See Craddock
Moving & Storage Co. v. Settles
, 16 Va. App. 1, 3, 427
S.E.2d 428, 430 (1993), aff’d, 247 Va. 165, 440 S.E.2d 613
(1994); Code ? 65.2-302. "’What constitutes an
employee is a question of law’; however, whether a specific
person falls within that definition ‘is usually a question of
fact.’" Metropolitan Cleaning Corp. v. Crawley, 14
Va. App. 261, 264, 416 S.E.2d 35, 37 (1992) (en banc)
(citation omitted).

In determining whether an individual is an employee, we
consider four elements: 1) selection and engagement of the
servant; 2) payment of wages; 3) power of dismissal; and 4) power
of control of the servant’s action. Hamilton Trucking/Hamilton
Terminal Corp. v. Springer
, 10 Va. App. 710, 715, 396 S.E.2d
379, 381 (1990) (citation omitted). "[T]he first, second and
third of these elements are not essential to the relationship. .
. . The ‘power of control’ is the most significant element
bearing on the question." Id.; see also Richmond
Newspapers, Inc. v. Gill
, 224 Va. 92, 98, 294 S.E.2d 840, 843
(1982); Behrensen v. Whitaker, 10 Va. App. 364, 366-67,
392 S.E.2d 508, 509-10 (1990).

The right of control inherent in an employer and employee
relationship is the power to control the means and methods by
which the result sought is to be accomplished. An employer
retains power to direct "the means and methods" by
which an employee performs his or her work. Furthermore, "it
is not the actual exercise of control, but the right to
control," that is determinative. James v. Wood Prods. of
Virginia
, 15 Va. App. 754, 757, 427 S.E.2d 224, 225 (1993)
(citations omitted).

In this case, the evidence proves that Myra Sullivan had the
right to control the means and methods by which the claimant
performed his work. She delegated the authority and
responsibility for conducting the claimant’s day to day duties to
W & L Construction under the contract. The nature of the
hauling contract with W & L Construction made it unnecessary
for Ms. Sullivan to directly control the claimant on a daily
basis. Ms. Sullivan negotiated the contracts for hauling, with
the exception of the occasional weekend hauling for individuals
who contacted the claimant directly. She received all payments
for hauling, both from W & L Construction and from private
individuals. The claimant did not pay for use of the truck,
rather, he was paid to operate it. The fact that he was paid a
percentage of the gross receipts is of no consequence. See
Hill City Trucking, Inc. v. Christian, 5 Va. App. 106,
111, 360 S.E.2d 867, 869 (1987), rev’d on other grounds,
238 Va. 735, 385 S.E.2d 377 (1989). Ms. Sullivan withheld all
state and federal taxes from the claimant’s paycheck and paid his
Social Security taxes. She was solely responsible for all
maintenance, insurance, and operating expenses relating to the
dump truck. She retained the power to control the claimant and
how he performed his work and as such he was an employee of MMS
Trucking.

Because MMS Trucking did not have three or more regular
employees at the time of claimant’s injury, it is not subject to
the Workers’ Compensation Act. Code ? 65.2-101(2)(h).
However, since MMS was engaged in the same trade, business, or
occupation as W & L Construction, the claimant was a
statutory employee of that corporation. Code ? 65.2-302.
Thus, the commission did not err in finding that the claimant was
a statutory employee of W & L Construction.

TOTAL DISABILITY

Upon appellate review, the commission’s findings of fact will
be upheld when supported by credible evidence in the record. Stancill
v. Ford Motor Co.
, 15 Va. App. 154, 158, 421 S.E.2d 872, 874
(1992). Here, the commission found that the claimant was totally
disabled as of February 27, 1996 as a result of post-traumatic
stress disorder and anxiety depressive syndrome. Dr. McKnight, a
psychiatrist who was treating the claimant, and Dr. Kanwal, an
internist, both opined that, while the claimant had recovered
from his physical injury and was physically able to work, he was
totally disabled by the post-traumatic stress disorder and
anxiety depressive disorder caused by the accident. This
uncontradicted evidence constitutes sufficient credible evidence
for the commission to have found that the claimant was
temporarily totally disabled as a result of the accident.
Accordingly, we affirm the decision of the commission.

Affirmed.

 

FOOTNOTES:

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

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