COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Chafin, O’Brien and Malveaux
Argued at Salem, Virginia
ROBERT KIRTLEY, JR.
MEMORANDUM OPINION* BY
v. Record No. 0631-17-3 JUDGE MARY GRACE O’BRIEN
OCTOBER 31, 2017
JOEL COOPER AND
AMGUARD INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Bradford M. Young (HammondTownsend, PLC, on briefs),
for appellant.
Nicholas P. Marrone (Kalbaugh, Pfund & Messersmith, PC, on brief),
for appellees.
Robert Kirtley, Jr. (“claimant”) appeals a decision by the Workers’ Compensation
Commission (“the Commission”) denying him benefits for a traumatic brain injury he sustained
while working at a construction site in October 2014. Claimant asserts the Commission erred in
determining that, at the time of the accident, he was an independent contractor, not an employee.
We disagree and affirm the Commission’s ruling.
Facts
This Court views the evidence in the light most favorable to Joel Cooper and AmGuard
Insurance Company, the parties prevailing before the Commission below. See Dillon Constr. &
Accident Fund Ins. Co. of Am. v. Carter, 55 Va. App. 426, 428, 686 S.E.2d 542, 543 (2009).1 So
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
At the evidentiary hearing, the parties stipulated to the occurrence of an injury by accident
arising out of and in the course of employment, as well as to the period of disability. Therefore, the
only issue was whether claimant was an employee or independent contractor.
viewed, Harrisonburg Townhomes, a general contractor, hired Joel Cooper, a sole proprietor, to
work on the construction of seven residential units, known as the Bluestone Project. The project
was to be completed in two phases during the summer and fall of 2014: phase one involved
framing and roofing three units, and phase two involved framing and roofing the remaining four
units.
Cooper hired claimant near the end of the first phase. Claimant, an experienced framer and
roofer, brought two employees and his own equipment to work on the project. Cooper did not pay
Medicare or payroll taxes for claimant or claimant’s employees. Claimant submitted a
“Contractor’s Invoice” every two weeks, billing for the hours of work that he and his employees
completed. Cooper paid claimant a lump sum, from which claimant then paid his employees.
Claimant charged fifteen dollars an hour for his employees, paid them eleven dollars an hour, and
retained the remaining four dollars for himself. Claimant set his own schedule and would
occasionally leave the construction site to work on other jobs.
Prior to the Bluestone Project, claimant worked for Cooper on a separate roofing project.
Claimant did not provide his own equipment for that job, nor did he submit invoices for payment.
Instead, Cooper recorded claimant’s hours and paid him accordingly. In May 2014, claimant left
Cooper’s employment to start his own business.
Claimant’s first task with the Bluestone Project was to shingle a roof. He performed the
work without any supervision or direction. During the second phase of the project, claimant usually
met with Cooper’s foreman, Justin Hannick, each morning to review blueprints and discuss the
day’s work. Hannick determined the order of task performance and allocated responsibilities.
Cooper testified that claimant and Hannick were the most skilled workers on the project and they
would jointly decide what construction would be completed each day. Hannick stated that as
foreman, he gave “direction to everybody on the jobsite, including [claimant],” but his directions to
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claimant focused on the order of performing tasks. Hannick testified that claimant was a skilled
framer who knew how to follow blueprints and was capable of framing walls without supervision or
direction.
Cooper testified that although claimant fulfilled his framing tasks independently and did not
need supervision, Hannick “had to answer to me, so [Hannick] would probably have more
authority.” Hannick also explained that although he had the ability to issue corrective instructions
to claimant, he only needed to give claimant direction “a couple of times” and never for “anything
serious.” Cooper stated that he observed claimant advising his own employee how to correctly
perform a task and that “I had nothing to do with it.”
Analysis
“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). “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.” Intermodal Servs., Inc. v. Smith, 234 Va. 596, 600, 364
S.E.2d 221, 224 (1988) (quoting Baker v. Nussman & Cox, 152 Va. 293, 298, 147 S.E. 246, 247
(1929)). Therefore, the decision whether an individual is an employee or an independent contractor
“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.
The facts underlying the Commission’s determination are binding on this Court if credible
evidence supports them. See Staton v. Bros. Signal Co., 66 Va. App. 185, 194-95, 783 S.E.2d 539,
543 (2016). Under this standard, “the appellate court does not retry the facts, reweigh . . . the
evidence, or make its own determination of the credibility of the witnesses.” Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
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Appellant first assigns error to the Commission’s determination that he was an independent
contractor at the time of the accident. He argues that despite his framing expertise and ability to
work unsupervised, Cooper maintained control over him, and therefore he was Cooper’s employee.
A person seeking benefits under the Act has the burden of proving he is an employee within
the definition of Code § 65.2-101. See Behrensen v. Whitaker, 10 Va. App. 364, 366, 392 S.E.2d
508, 509 (1990). “An independent contractor is not an employee for Act purposes.” Creative
Designs Tattooing Assocs. v. Estate of Parrish, 56 Va. App. 299, 307, 693 S.E.2d 303, 307 (2010).
A worker’s status as either an employee or independent contractor is governed “not by any
express provision of the [Act], but by common law.” Id. at 308, 693 S.E.2d at 308 (quoting Hann v.
Times-Dispatch Pub. Co., 166 Va. 102, 105, 184 S.E. 183, 184 (1936)). The status “must be
determined from the facts of the particular case in the light of well settled principles.” Hann, 166
Va. at 106, 184 S.E. at 184. The Supreme Court has defined an independent contractor as:
a person who is employed to do a piece of work without restriction as
to the means to be employed, and who employs his own labor and
undertakes to do the work according to his own ideas, or in
accordance with plans furnished by the person for whom the work is
done, to whom the owner looks only for results.
Epperson v. DeJarnette, 164 Va. 482, 486, 180 S.E. 412, 416 (1935).
“The elements of an employment relationship are: (1) selection and engagement of the
employee, (2) payment of wages, (3) power of dismissal, and (4) power of control of the
employee’s action.” Purvis v. Porter Cabs, Inc., 38 Va. App. 760, 766, 568 S.E.2d 424, 427 (2002).
Although “[t]he power of control is the most significant indicium of the employment relationship,”
the other elements “elucidate the manner and degree of control.” Richmond Newspapers, Inc. v.
Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843 (1982).
An independent contractor “directs the work himself, using his own methods to accomplish
it.” Talley v. Drumheller, 135 Va. 186, 191 115 S.E. 517, 519 (1923). Here, Hannick did not tell
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claimant how to perform the job; he merely informed claimant, based on the blueprints, what the
result should be. Hannick and Cooper both testified that claimant was a skilled framer who could
read blueprints and perform the work necessary to accomplish the framing without supervision or
instruction. During the first construction phase, claimant worked independently. He was an
experienced roofer, and he did not receive any specific direction regarding the shingling. For the
second phase, although Hannick had authority as the foreman of the project, he and claimant
worked collaboratively in planning the day’s objectives, because they “were the most experienced
people there and they were making the decisions.” Claimant supervised and instructed his own
employees.
The fact that Hannick had authority to determine the order of task performance and allocate
work responsibilities does not negate claimant’s status as an independent contractor. Virginia law
does not require that an independent contractor be free from all instruction or direction, as long as
he has the power to control the means and methods of performance. See MacCoy v. Colony House
Builders, Inc., 239 Va. 64, 68-69, 387 S.E.2d 760, 762 (1990).
In MacCoy, the Supreme Court affirmed an electrician’s status as an independent contractor,
despite evidence that he worked on twenty-two houses for a construction company whose president
was on site each day specifying the location and installation of lighting fixtures, switches, and
receptacles for major appliances. Id. at 68, 387 S.E.2d at 762. The Supreme Court held that
“[n]one of these facts . . . even when taken together, would justify an inference that Colony House
had the power to control the means and methods of [the electrician’s] work.” Id. The president
“merely prescribed what the results should be;” however, the electrician was “free to adopt and
employ the means and methods necessary to accomplish the prescribed results,” and was therefore
an independent contractor. Id. Likewise, in this case, claimant controlled the means and methods
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for achieving the results as prescribed in the blueprints, and was therefore an independent contractor
regardless of Hannick’s generalized project administration.
Additionally, claimant used his own equipment and tools for the project, a fact that may be
considered in deciding “the paramount issue of control.” See Creative Designs Tattooing Assocs.,
56 Va. App. at 311, 693 S.E.2d at 309 (noting that claimant’s provision of the “instrumentalities,
supplies, and tools for his work” indicated independent contractor status). Cf. Uninsured
Employer’s Fund v. Clark, 26 Va. App. 277, 281, 494 S.E.2d 474, 476 (1998) (finding claimant to
be a covered employee, based in part on his “using a truck and tools provided by [the employer]”).
When claimant previously was employed by Cooper, he did not bring any of his own equipment.
Although claimant was paid by the hour, he could determine his schedule and the hours that
he worked. He was also free to leave the jobsite to work on other projects. A worker’s ability to
control his hours is an indication of independent contractor status, even if that worker is paid an
hourly wage. Walker, 25 Va. App. at 232, 487 S.E.2d at 278 (“While claimant was paid by the
hour, she controlled the actual number of hours she worked.”).
Claimant relies on Dillon Constr.. In Dillon Constr., Carter left his employment as a
carpenter for a construction company in 2006 to do freelance contractor work. 55 Va. App. at 429,
686 S.E.2d at 543. In this capacity, he continued to perform occasional part-time carpentry work
for the company. Id. Later in 2006, when Carter could not find enough work to sustain his own
business, he returned to work for the company and was subsequently injured in the course of his
employment. Id. This Court affirmed the Commission’s finding that at the time he was injured,
Carter was an employee under the Act. Id. at 433-34, 686 S.E.2d at 545-46. We noted that Carter
was treated the same as the other hourly carpenters: he “worked eight hours a day, turned in his
time cards, received his earnings based on hours worked, and performed the same duties as when he
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was an hourly employee in 2005.” Id. at 434, 686 S.E.2d at 545. Additionally, the company
retained the sole ability to hire potential carpenters. Id. at 432, 686 S.E.2d at 545.
Here, however, Cooper engaged claimant for the Bluestone Project not only to work
individually, but also to supply additional laborers. Claimant submitted invoices tallying the hours
both he and his employees worked. The Commission found that “significantly, [claimant] gained
an additional $4 for himself for every hour worked by his employee.” Unlike Carter, who returned
to work for the construction company after he could not maintain his own business, claimant
returned to work for Cooper under new business conditions, with his own employees to supervise
and from whom he would derive a profit.
In his second and third assignments of error, claimant challenges the Commission’s factual
findings that he controlled his work hours at the time of the accident and he did not consider himself
Cooper’s employee. However, if any credible evidence supports the Commission’s factual findings,
they are binding and conclusive on appeal, even if the record contains contrary evidence. See
Wagner Enters., Inc., 12 Va. App. at 894, 407 S.E.2d at 35.
Cooper testified that claimant was free to leave the worksite for other jobs whenever
necessary. Claimant’s employee testified that he and claimant worked on the project by themselves
one Saturday. Although claimant generally worked the same hours as the other construction
workers, Cooper specifically denied that claimant had a set schedule. This flexibility was in
contrast to claimant’s more rigid schedule when he was previously employed by Cooper.
The record also contains credible evidence that claimant considered himself an independent
contractor. See Gill, 224 Va. at 98, 294 S.E.2d at 843 (recognizing that the parties’ intent can factor
into the ultimate determination of employment status). Claimant supplied the worksite with heavy
equipment that everyone shared, submitted invoices for both his and his employees’ work, and
received an extra four dollars for each hour of work completed by one of his employees. These
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circumstances differed from claimant’s work relationship with Cooper prior to the Bluestone
Project. There, claimant supplied no equipment, no labor other than himself, and was paid without
provision of an invoice but according to Cooper’s records of the hourly work claimant performed.
Such evidence of claimant’s power of control supports a finding that he considered himself an
independent contractor.
For these reasons, the Commission properly found that claimant was an independent
contractor, and therefore not entitled to an award of benefits under the Act.
Affirmed.
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