COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
CHUCK BENNETT & SONS HEATING
AND AIR CONDITIONING AND
SOUTHERN INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 2203-03-2 PER CURIAM
DECEMBER 30, 2003
WALTER MONCURE COTTRELL
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Andrew R. Blair; Blair Law Offices, on brief), for appellants.
(Louis D. Snesil; Louis D. Snesil, P.C., on brief), for appellee.
Chuck Bennett & Sons Heating and Air Conditioning and its insurer (hereinafter referred
to as “Bennett & Sons”) contend the Workers’ Compensation Commission erred in finding that
Walter Moncure Cottrell (claimant) proved he was an employee of Bennett & Sons at the time of
his compensable left eye injury on December 6, 2001. Upon reviewing the record and the
parties’ briefs, we conclude that this appeal is without merit. Accordingly, we summarily affirm
the commission’s decision. Rule 5A:27.
Claimant, an experienced sheet metal mechanic, testified that in the Fall of 2001, Michael
Cain, a part-owner of Bennett & Sons, offered claimant work, five days per week, at ten dollars
per hour for the first week, and after that, he “moved [claimant] to eleven.” Claimant quit his
carpentry/roofing job with Elton Adams to accept Cain’s offer. Thereafter, each morning,
Monday through Friday, claimant met with approximately six other workers at Cain’s home, his
place of business, at approximately 7:30 a.m. At that time, Cain assigned each worker to a
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
jobsite. Claimant worked on residential and commercial jobsites as part of a crew. Claimant did
not know who was going to be on his crew on any given day. Claimant did not engage in other
employment during the time he worked for Bennett & Sons on an hourly basis. A time card
reflecting the hours claimant worked during the week ending December 5, 2001 was introduced
into evidence. Claimant denied that he personally employed anyone to help him while he
worked for Bennett & Sons or that he ever subcontracted any assignment while working for
Bennett & Sons. Claimant stated that either Cain or Charles Bennett, Jr. (known as Chuck, Jr.)
worked alongside him at the jobsite and that one of them was in charge of the work.
On the morning of December 6, 2001, claimant and the other workers arrived at Cain’s
residence as usual. Cain assigned claimant, Chuck Jr., and Robert Collins to a particular jobsite
to replace an oil furnace with a hot air furnace. Claimant was not involved in procuring that job.
While performing that job, claimant injured his left eye.
Claimant admitted that he knew Bennett & Sons did not withhold taxes from his
paycheck, but he “figured I’d better keep quiet.” Claimant testified that his nephew, Michael
Dennis, worked for Bennett & Sons before claimant’s regular hourly employment with Bennett
& Sons. Claimant denied ever hiring Dennis to perform work for Bennett & Sons. Claimant
testified that Bennett & Sons paid Dennis by the job.
Claimant admitted that two to three months before he started regular hourly work for
Bennett & Sons, he performed two or three jobs for them at the rate of approximately $100 per
day. Dennis also did some work for Bennett & Sons during that time and was paid by the day.
Claimant testified that when Cain asked him to work for Bennett & Sons on an hourly basis in
the Fall of 2001, Cain told claimant that
he had peak loads of work, he wanted me to work for him by the
hour and get a regular paycheck and as we progressed and he
weeded out different people in the company that he would put me
-2-
right on in there, and I figured with my age I would go ahead and
finish my working history with Chuck Bennett.
On cross-examination, claimant admitted he had been working as a sheet metal worker
for over twenty years. He admitted that he provided his own tools when he began hourly work
for Bennett & Sons. Claimant denied ever paying Dennis for any work that he performed for
Bennett & Sons. Claimant denied ever telling Cain or Chuck, Jr. that he considered himself to be
self-employed. Claimant denied that he considered himself self-employed in November or
December 2001. He denied ever telling Cain that he had his own insurance. He admitted that he
never questioned why employer did not withhold taxes from his paycheck, because he “figured
it’s money in my pocket.” Claimant admitted that when he went to the hospital in December
2001, he indicated that he was self-employed. Claimant explained that he “was trying not to
jeopardize my job with Chuck Bennett & Sons. I felt like I’ve got maybe ten more years to
work. I figured I’d work with him, finish up my work history with Chuck Bennett & Sons . . . .”
Claimant believed that if he told the hospital personnel that he was working for Bennett & Sons,
he might lose his job, because he did not know whether Bennett & Sons had insurance.
On redirect, claimant stated that it is common in his trade for employees to provide their
own hand tools.
Cain testified that during November and December 2001, he was the only person who
hired employees for Bennett & Sons. Cain admitted that he hired claimant in November 2001
and that claimant had worked on other jobs for Bennett & Sons before that time. Cain stated that
when he hired claimant in November 2001, claimant told him he had his own insurance and that
he was self-employed. Cain stated that claimant told him that he had his own truck and tools.
Cain stated “we talked about payment arrangements, that we would continue as before but as
[claimant] had testified the work had started pouring in on a continuous basis” and “[s]o now
[we’re] going to pay him by the hour.” Cain stated that he did not withhold any taxes from
-3-
claimant’s paychecks or match social security. Bennett & Sons sent claimant a 1099 form for
wages he earned in 2001. Bennett & Sons did not provide any benefits to claimant, such as
vacation, sick leave, or retirement. Cain denied ever hiring Dennis to work for Bennett & Sons
or that anyone on behalf of Bennett & Sons did so. Cain admitted that Dennis performed work at
Bennett & Sons’ jobsites, but denied ever paying Dennis. Cain testified that claimant drove
Dennis to the jobsites and that Dennis worked with claimant. Cain stated that claimant paid
Dennis, claiming that he saw claimant hand money to Dennis on one occasion, after Cain had
paid claimant.
On cross-examination, Cain admitted that claimant had worked for Bennett & Sons at the
rate of $100 per day before the three-week period in 2001 when claimant worked for Bennett &
Sons by the hour. Cain claimed that Dennis also worked on the company’s jobsites during the
three-week period when Bennett & Sons paid claimant by the hour. Cain admitted that he did
not see claimant give any money to Dennis during the time he was being paid by the hour nor did
Cain know whether any arrangement existed for Dennis to be paid during that period. Cain
admitted that sometime around November 16, 2001, he and claimant agreed that claimant would
work for employer on an hourly basis, five or more days per week. With respect to that
conversation, Cain testified as follows:
[W]e figured before an average workday was about nine to ten
hours a day so Walter would be making prior to --- on the
continuous basis of the free weeks, he would be making around ten
dollars per hour. So I made an offer of nine dollars an hour and he
said how about ten dollars an hour, this is as an employee with me
taking taxes out. He said, I only bring home about $750 after that.
He says, I can’t do that, I can’t work for that. And I said, well, I
can’t give you anymore unless you want to be an independent
contractor and then you can withhold your own taxes and we ---
and he said, how much, and I said eleven, and he said, okay, I’ll do
it.
-4-
Cain admitted that each morning he assigned workers to particular jobs that were
obtained by Bennett & Sons according to the size of the job, what needed to be done, and the
workers’ skills. Cain admitted that either he or Chuck, Jr. were on the jobsites at least half of the
time. Cain admitted that when he was on the jobsite, he directly supervised the persons
performing the work. Cain “would make sure that the jobs were being done in accordance with
what [he] was paying for.” Cain admitted that although he did not need to stand over claimant
and tell him how to do his work, Cain was the person in charge. Cain did not give claimant
permission to subcontract his work while he was working on an hourly basis for Bennett & Sons.
Cain admitted that it is common for sheet metal mechanics to furnish their own hand tools,
whether they are employees or subcontractors.
Chuck, Jr., Cain’s half-brother and part owner of Bennett & Sons, testified that the
company’s records showed that Bennett & Sons hired claimant to work on an hourly basis
beginning November 16, 2001. Between November 16, 2001 and December 6, 2001, Chuck, Jr.
worked with claimant, and was working with him on December 6, 2001 at the time of his
accident. Chuck, Jr. was in charge of the jobsite that day. Chuck, Jr. testified that claimant’s
nephew, Dennis, worked with claimant when claimant worked for Bennett & Sons on a
day-by-day basis, but not when claimant worked on an hourly basis. Chuck, Jr. denied that
employer hired Dennis or paid him. Chuck, Jr. did not know how Dennis was paid.
In his de bene esse deposition, Dennis testified that he and claimant performed two
weekend jobs in November 2000 for Bennett & Sons in response to Cain’s offer of extra work.
Dennis stated that Cain paid him and claimant, in cash, on both occasions, at the rate of $80 per
person. Dennis contended that on one occasion Cain handed the money to him, and the other
time, Cain gave the money to claimant. Dennis denied ever working for Bennett & Sons after
November 2000. Dennis stated that claimant went to work for Bennett & Sons on a regular basis
-5-
in November 2001. Dennis testified that he gave claimant’s telephone number to Cain after Cain
inquired as to whether claimant would be interested in working for him full time. A few days
later, claimant began working for Bennett & Sons, on a regular everyday basis, several weeks
before his accident. Dennis denied ever working directly for claimant or ever being paid by
claimant for doing work.
Based upon this record, the commission concluded that claimant was an employee of
Bennett & Sons, rather than an independent contractor, at the time of his December 6, 2001
accident. We find no error in this conclusion.
“The Workers’ Compensation Act covers employees but not independent contractors.”
County of Spotsylvania v. Walker, 25 Va. App. 224, 229, 487 S.E.2d 274, 276 (1997). This
distinction must be determined from the facts of each case, with the burden upon the person
seeking benefits under the Act to prove the relationship contemplated by the Act. Id. at 229-30,
487 S.E.2d at 276; see Code § 65.2-101. Although the commission’s factual findings are binding
and conclusive on appeal, when they are supported by credible evidence, see James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989), a “[d]etermination of the
relationship involves a mixed question of law and fact which is reviewable on appeal,” Walker,
25 Va. App. at 230, 487 S.E.2d at 276.
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, 843 (1982)).
[T]he right of control includes not only the power to specify the
result to be attained, but the power to control “the means and
methods by which the result is to be accomplished.” An
employer-employee relationship exists if the party for whom the
-6-
work is to be done has the power to direct the means and methods
by which the other does the work. “[I]f the latter is free to adopt
such means and methods as he chooses to accomplish the result, he
is not an employee but an independent contractor.” The extent of
the reserved right of control may be determined by examining the
performance of the parties in the activity under scrutiny.
Intermodal Servs., Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d 221, 224 (1988) (citations
omitted).
The record contains credible evidence to support the commission’s finding that Bennett
& Sons maintained the requisite control over claimant to render him an employee. The
undisputed evidence proved that in November 2001, Bennett & Sons hired claimant to work on a
full-time, hourly basis, not by the job or day. Claimant reported to work around the same time
every morning at a location designated by Cain, who then assigned claimant to a specific crew,
which was assigned to a specific job for that day. Cain made those assignments after considering
factors such as the size of the job, what needed to be done, and the relative skill level of the
workers. Cain decided which combination of workers would be best for each job. Cain or
Chuck, Jr. supervised the jobs by visiting the jobsites daily and, at times, staying on the jobsites.
They were ultimately in charge of the jobsites to make sure the jobs were done correctly.
Bennett & Sons did not permit claimant to hire subcontractors to perform his assigned work.
In its opinion, the commission acknowledged that no withholding taxes were taken out of
claimant’s paychecks, that he was issued a 1099 form, that Cain and claimant agreed to designate
claimant an independent contractor, and that at the hospital, claimant described himself as
self-employed. However, the commission correctly concluded that “labeling the claimant an
‘independent contractor’ or ‘self-employed’ pursuant to an agreement of the parties or for tax
purposes is not controlling.” Rather, the facts of each case must be examined to determine the
status of a claimant at the time of his or her injury. See Walker, 25 Va. App. at 229-30, 487
-7-
S.E.2d at 276. The facts of this case established that claimant was Bennett & Sons’ employee at
the time of his compensable accident.
The commission also correctly noted that the fact that claimant was a skilled, experienced
worker did not automatically render him an independent contractor. As we recognized in Purvis
v. Porter Cabs, Inc., 38 Va. App. 760, 568 S.E.2d 424 (2002):
The fundamental test of the employment relationship is the right of
the employer to control the details of the employee’s work. It is
not the actual control exercised, but whether there exists the right
and authority to control and direct the particular work or
undertaking, as to the manner or means of its accomplishment.
The test is based on the right to control, not the exercise. Most
often the distinction is of importance when a skilled or experienced
worker appears to be doing his or her job without supervision or
interference. By an exercise test, the employee would seem to be
uncontrolled; yet, it will often be found that the employer, in any
showdown, would have the ultimate right to dictate the method of
work if there were any occasion to do so. The right to control does
not require the dictation of the thinking and manner of performing
the work. It is enough if the employer has the right to direct the
person by whom the services are to be performed, the time, place,
degree and amount of said services.
Id. at 771-72, 568 S.E.2d at 429-30 (citations omitted).
Finally, the commission, as fact finder, resolved any inconsistencies in the witnesses’
testimony in favor of claimant. It is well settled that credibility determinations are within the
fact finder’s exclusive purview. Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381,
363 S.E.2d 433, 437 (1987).
For these reasons, we affirm the commission’s decision.
Affirmed.
-8-