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Tactical Group, Inc. v. Lucas

Court of Appeals of Virginia

December 29, 1995

TACTICAL GROUP, INC.
v.
JIMMY RAY LUCAS, J. H. PENCE COMPANY, FIRST OF GEORGIA INSURANCE COMPANY, AND UNINSURED EMPLOYERS' FUND AND UNINSURED EMPLOYERS' FUND
v.
TACTICAL GROUP, INC., JIMMY RAY LUCAS, J. H. PENCE COMPANY, AND FIRST OF GEORGIA INSURANCE COMPANY

As Amended August 8, 1996.

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.

(Mark D. Kidd; Osterhoudt, Ferguson, Natt, Aheron & Agee, P.C., on brief), for Tactical Group, Inc. (Terry L. Armentrout; Roger Ritchie & Partners, P.L.C., on brief), for Jimmy Ray Lucas.

(William C. Walker; Donna White Kearney; Taylor & Walker, on briefs), for J. H. Pence Company and First of Georgia Insurance Company.

(James S. Gilmore, III, Attorney General; John J. Beall, Jr., Senior Assistant Attorney General; Christopher D. Eib, Assistant Attorney General, on brief), for Uninsured Employers' Fund.

Present: Judges Benton, Coleman and Willis.

MEMORANDUM OPINION [*]

PER CURIAM

Tactical Group, Inc. (" Tactical") contends that the Workers' Compensation Commission erred in finding that (1) Jimmy Ray Lucas was an employee of Tactical rather than an independent contractor; (2) Tactical employed three or more workers, making it subject to the Workers' Compensation Act (" the Act"); (3) Lucas earned an average weekly wage of $ 613.02; and (4) Lucas proved he sustained an injury by accident arising out of and in the course of his employment. The Uninsured Employer's Fund (" the Fund") cross-appeals and contends that the commission erred in (1) allowing J.H. Pence Company (" Pence"), the statutory employer, to raise a Code § 65.2-600 notice defense at the July 27, 1994 hearing; (2) finding that Lucas did not give Pence timely notice of his September 20, 1993 injury by accident; and (3) refusing to dismiss Lucas' application when he failed to appear at the second evidentiary hearing on January 12, 1995. Upon reviewing the record and the briefs of the parties, we conclude that these appeals are without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.

TACTICAL'S APPEAL: RECORD NO. 1675-95-3

I. Employee vs. Independent Contractor

"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). On 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, Inc. 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. Id. at 367, 392 S.E.2d at 510.

Claimant testified that Tazwell K. McDole, Tactical's owner, hired him to install school lockers in Spotsylvania County. McDole paid Lucas by the hour, not by the job. Lucas did not use his own tools. Instead, he used tools provided by Tactical or Pence. McDole decided when and where Lucas would work. On various occasions, McDole showed Lucas the layout of the jobsite. Lucas built the lockers and McDole retained responsibility over their placement. According to Lucas and co-workers Reese Painter and Mike Woodward, Lucas supervised the job, keeping time cards and distributing paychecks to other employees for McDole.

The testimony of claimant, Painter, Woodward, and McDole provides credible evidence to support the commission's finding that the right to control the Spotsylvania job clearly rested with McDole. Accordingly, the ...


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