COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Overton
Argued at Alexandria, Virginia
CURTIS BOIS
OPINION BY
v. Record No. 0839-02-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 19, 2002
HUNTINGTON BLIZZARD AND
UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Andrew S. Kasmer (Chasen & Boscolo,
Chartered, on brief), for appellant.
James Webb Jones, Assistant Attorney General
(Jerry W. Kilgore, Attorney General; John J.
Beall, Jr., Senior Assistant Attorney
General, on brief), for appellee Uninsured
Employer's Fund.
No brief or argument for appellee Huntington
Blizzard.
Curtis Bois (claimant), contends the Workers' Compensation
Commission (commission) erred in finding that the Huntington
Blizzard ice hockey team (employer) did not have more than three
employees regularly in service within the Commonwealth of
Virginia as required by Code § 65.2-101 and was, therefore, not
subject to the Workers' Compensation Act (Act). For the reasons
that follow, we affirm the commission's decision.
I. FACTS
We view the evidence in the light most favorable to the
employer, who prevailed below. See Westmoreland Coal v.
Russell, 31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999). The
commission's factual findings are conclusive and binding on this
Court when those findings are based on credible evidence. See
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989); Code § 65.2-706.
The evidence established that employer's team offices and
home ice rink were located in Huntington, West Virginia.
Employer maintained no office in Virginia, and no employees
lived in Virginia. In October, 1999, claimant signed his
employment contract at the team's offices in West Virginia.
Pursuant to the terms of the contract, employer paid claimant's
salary, rent for his apartment in West Virginia and utilities.
The 1999 - 2000 regular hockey season began in October and
ended in early April with three playoff games scheduled later in
April. There were seventy-one regular season games played over
the course of one hundred eighty-three days. Of those
seventy-one regular season games, fourteen games were against
Virginia teams and nine of those fourteen games were played at
locations in Virginia. The other games were played in Ohio, New
Jersey, West Virginia, Illinois, Florida, Arkansas, and North
Carolina. All three playoff games were played in Virginia.
Employer brought approximately 23 employees to Virginia for each
game played. The team typically arrived at least one day before
the game and left immediately after the regular season games.
During the playoffs, the team left the day after the game.
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On April 12, 2000, claimant injured his left leg during a
playoff game against the Hampton Roads Admirals in Virginia. He
tore his medial collateral ligament and had surgery in May 2000.
He completed the appropriate rehabilitation and played for
another hockey team during the 2000 - 2001 season. Claimant's
former coach, Roy Edwards, testified that the Huntington
Blizzard's team is dormant and that the franchise has no daily
operations. He also testified,
[w]e paid everything for [claimant]. We
paid for his surgery, we paid for his rehab,
we paid for his flight to come back and be
checked up [sic], we paid his - - we paid a
portion of his salary, . . . up until he was
cleared to play again. Financially, we
looked after everything for him.
Employer never appeared at the hearing or submitted on brief at
any stage of the proceedings. No evidence showed employer
maintained workers' compensation insurance in the Commonwealth,
thus the Uninsured Employer's Fund was a party to the
proceeding.
The deputy commissioner found Virginia had no jurisdiction
to consider the claim because "[a]lthough the team made
scheduled trips to Virginia to play teams located in this state,
it is not found that these trips constitute the regular service
contemplated by §65.2-101." Thus, the deputy commissioner
denied claimant's request for temporary total disability
benefits for the period of April 12 to August 23, 2000 and
unspecified permanent partial disability benefits.
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The commission affirmed the deputy commissioner's decision
and found:
The claimant was not, and apparently
never was, a resident of the Commonwealth of
Virginia. His contract was executed in West
Virginia. The employer was a company based
exclusively in West Virginia that maintained
no employees or facilities of any kind
within the bounds of the Commonwealth. The
only contacts between the employer, the
claimant and the Commonwealth of Virginia,
were a few isolated bus trips by the
employer's team from West Virginia to three
locations in Virginia during the 1999-2000
hockey season. For the remainder of the
year, the employer and its team operated
exclusively outside the Commonwealth of
Virginia, playing most of its games in West
Virginia, and the seven or eight other
states where games were scheduled.
We find that these limited contacts by
the employer and its employees do not rise
to the level of being "regularly in
service . . . within this Commonwealth," as
contemplated by the Act. Therefore,
jurisdiction is lacking.
* * * * * * *
While it is true that the accident
occurred in Virginia, we fail to
see . . . why Virginia employer's [sic] and
insurers should be responsible - through the
UEF - for the West Virginia employer's
unfortunate failure to insure its liability
to a resident of that state. The claimant
and employer's activities in this state are
simply too tenuous to rise to the level of
regularity contemplated by the Act.
Claimant appealed that decision.
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II.
Claimant contends that the commission erred in finding his
injury was not covered by the Act. The precise issue to be
determined in the instant case is whether the term "regularly in
service . . . within this Commonwealth" applies only to the
number of employees required for coverage under the Act or
whether it also applies to the amount of contact necessary to
trigger coverage. We agree with the commission that "regularly
in service . . . within this Commonwealth" applies both to the
number of employees required and the character of the business.
Code § 65.2-101 provides in pertinent part, that
"'[e]mployee' means . . . [e]very person, including aliens and
minors, in the service of another under any contract of hire or
apprenticeship, written or implied, whether lawfully or
unlawfully employed." It further provides, however, that
"'[e]mployee' shall not mean . . . [e]mployees of any person,
firm or private corporation . . . that has regularly in service
less than three employees in the same business within this
Commonwealth . . . ." Code § 65.2-101. Under this statute
"once an employee proves that his or her injury occurred while
employed in Virginia, an employer has the burden of producing
sufficient evidence upon which the commission can find that the
employer employed less than three employees regularly in service
in Virginia." Craddock Moving & Storage Co. v. Settles, 16
Va. App. 1, 2, 427 S.E.2d 428, 429 (1993), aff'd per curiam, 247
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Va. 165, 440 S.E.2d 613 (1994). "Whether a person is an
'employee' and whether an employer has three or more employees
'regularly in service' are pivotal determinations in deciding if
an employer is subject to the Act." Cotman v. Green, 4 Va. App.
256, 258, 356 S.E.2d 447, 448 (1987).
"The commission's construction of the Act is entitled to
great weight on appeal." Cross v. Newport News Shipbuilding and
Dry Dock Co., 21 Va. App. 530, 533, 465 S.E.2d 598, 599 (1996)
(citing City of Waynesboro v. Harter, 1 Va. App. 265, 269, 337
S.E.2d 901, 903 (1985)). "While we generally give great weight
and deference, on appeal, to the commission's construction of
the Workers' Compensation Act, 'we are not bound by the
commission's legal analysis in this or prior cases.'" Peacock
v. Browning Ferris, Inc., 38 Va. App. 241, 248, 563 S.E.2d 368,
372 (2002) (quoting U.S. Air, Inc. v. Joyce, 27 Va. App. 184,
189 n.1, 497 S.E.2d 904, 906 n.1 (1998)).
In the instant case and several others, the commission has
interpreted the term "regularly in service . . . within the
Commonwealth" to apply not only to the number of employees
engaged in performing the employer's established mode of work,
but also, to require that the character of the business'
"contacts and activities" within the Commonwealth be more than
"irregular or merely occasional" to allow jurisdiction over the
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claim. 1 See Johnson v. M.S. Carriers, VWC File No. 170-96-38
(March 24, 1998), aff'd, Johnson v. M.S. Carriers, Record No.
0907-98-3 (Va. Ct. App. January 12, 1999); Whitley v. Cardinal
Freight Carriers, Inc., VWC File No. 166-03-27 (November 9,
1994). For example, in Johnson, claimant was an over-the-road
truck driver who was dispatched from employer's headquarters in
Tennessee. Employer maintained two drop yards in Virginia, and
claimant used the yards approximately two times per month. On
these facts the commission found that "regularly in service
implies more than occasional pick-ups and drop-offs or merely
driving through Virginia." We agree with the commission's
analysis. The statutory language does not limit "regularly in
service" only to the number of workers involved but it also uses
that term to modify the phrase "within this Commonwealth."
Thus, the plain statutory requirement of at least three
employees working with some degree of regularity within the
Commonwealth is the triggering mechanism.
Claimant's reliance on our holding in Cotman to define
"regularly in service" is misplaced. In Cotman, we stated,
1
We note that most of the cases analyzing Code § 65.2-101
have discussed the term "regularly in service" in relation to
the number of employees necessary for coverage because that was
the factual basis for disputing coverage. See Smith v. Hylton,
14 Va. App. 354, 416 S.E.2d 712 (1992); Cotman, 4 Va. App. 256,
356 S.E.2d 447; Pineda v. Brothers, VWC File No. 186-95-81
(January 11, 1999); Bills v. Hi-Tech Polishing, VWC File No.
170-96-39 (August 25, 1995); Cannady v. McRae Co., 57 O.I.C. 74
(1977); Carnes v. Owen, 40 O.I.C. 74 (1968); and A. Larsen, The
Law of Workmen's Compensation § 74.02.
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"[I]n determining whether an employer has three or more
employees regularly in service, the focus shifts to the
character of the business and away from the character of the
employment relationship." Cotman, 4 Va. App. at 259, 356 S.E.2d
at 448. In Cotman, the business as well as the employees,
whether they were full time, part time or temporary, were
located within the Commonwealth. The employer argued the
temporary and part-time employees were not "regularly in
service" because of the nature of part-time and temporary work
and, therefore, were not covered by the Act. The facts in
Cotman did not require us to address the regularity of the
employer's contacts within the state.
Additionally, we note that Craddock implicitly discussed
the issue of the necessity for certain "minimum contacts" to
establish jurisdiction under the Act. In Craddock, we held that
credible evidence supported the commission's exercise of
jurisdiction because the evidence established the sufficient
number of employees and the requisite minimum contacts. 16
Va. App. at 4, 427 S.E.2d at 431. Unlike the instant case, the
employees were hired in Virginia and the totality of their work
for employer was completed in Virginia.
In the instant case, it is uncontested that employer had
more than three full-time employees. However, the character of
employer's business within the Commonwealth was limited to
twelve to fifteen days during the season and was not regular or
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ongoing. Thus, the character of this business was such that its
contacts with Virginia were occasional and irregular.
Therefore, credible evidence supports the commission's finding
that the contacts were insufficient to meet the "regularly in
service . . . within this Commonwealth" requirement of
Code § 65.2-101.
Affirmed.
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