COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
JON W. JUNGERS t/a
RICHMOND MODULAR
MEMORANDUM OPINION *
v. Record No. 1207-98-2 PER CURIAM
OCTOBER 27, 1998
NORMAN REED POWERS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Phyllis L. Bean, on brief), for appellant.
(Ruth E. Nathanson; Maloney, Huennekens,
Parks, Gecker & Parsons, on brief), for
appellee.
Jon W. Jungers t/a Richmond Modular ("Richmond Modular")
contends that the Workers' Compensation Commission ("commission")
erred in finding that (1) Norman Reed Powers ("claimant") was an
"employee" of Richmond Modular; (2) employer failed to prove that
claimant's willful failure or refusal to use a safety appliance
barred his claim pursuant to Code § 65.2-306(A)(4); and (3)
Richmond Modular was an "employer" subject to a fine under the
Workers' Compensation Act ("the Act") for failing to carry
workers' compensation insurance. Upon reviewing the record and
the briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I. and III.
"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. See 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, 843
(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. See id. at 367, 392 S.E.2d at 510.
In holding that claimant was an employee of Richmond
Modular, the commission made the following findings:
[T]he claimant and his co-workers credibly
testified that they were paid on an hourly
basis based upon time sheets that they had to
turn in to the employer. In addition, the
workers were not required to bring their own
tools; were directed by the employer to
particular jobsites; were directed by the
employer to be at the worksite by 7:00 a.m.;
and were reimbursed for traveling expenses.
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Furthermore, the particular job on which the
claimant was injured supports the claimant's
statement that the employer retained control.
When uncertain as to whether or not to use a
backhoe, the claimant requested advice from
the employer and that advice was given.
Therefore, as the Deputy Commissioner
correctly noted, the credible testimony of
the claimant and his co-workers indicate that
Richmond Modular regularly employed at least
three people who were not independent
contractors but, instead, employees of
Richmond Modular.
The testimony of claimant and his co-workers, Tim
Christiansen, Benjamin Ragland, and Charles Smelser, provide
ample credible evidence to support the commission's findings.
Their testimony supports a finding that Richmond Modular
controlled not only the result, but also the means and methods by
which the work was to be accomplished. Thus, we find that
credible evidence supports the commission's findings, and those
findings indicate that claimant was Richmond Modular's employee
pursuant to the Act.
The testimony of claimant and his co-workers also provides
credible evidence to support the commission's finding that
Richmond Modular employed at least three or more employees.
Thus, the commission did not abuse its discretion in issuing a
fine of $1,500 against Richmond Modular for failure to maintain
workers' compensation insurance pursuant to Code § 65.2-800.
II.
Code § 65.2-306(A)(4) provides as follows: "No compensation
shall be awarded to the employee . . . for an injury . . . caused
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by: . . . 4. The employee's willful failure or refusal to use a
safety appliance or perform a duty required by statute . . . ."
"Whether an employee is guilty of willful misconduct is a
question of fact to be resolved by the commission and the
commission's finding is binding on appeal if supported by
credible evidence." Adams ex rel. Boysaw v. Hercules, Inc., 21
Va. App. 458, 463, 465 S.E.2d 135, 137 (1995).
In holding that employer failed to prove that claimant
committed willful misconduct, the commission found as follows:
The employer's assertion that the claimant
did not follow a commonly known safety
procedure is insufficient to establish the
affirmative defense of willful misconduct.
The fact that the claimant sought out the
employer's advice as to the use of a backhoe
in taking down a chimney clearly shows that
the claimant did not have a wrongful
intention in going about the job. Instead,
he sought out the appropriate way to take
down the wall and was instructed in how to do
so. Given the claimant's inexperience in
chimney demolition and the lack of any
express safety standard by the employer, the
employer clearly has not met his burden of
proving that claimant's injury was due to his
willful misconduct.
Claimant's testimony provides credible evidence to support
the commission's findings. Claimant testified that he had never
demolished a chimney before and sought instruction from employer,
but received no safety directions. No evidence showed that
employer ever held safety meetings; that employer ever
promulgated safety rules; or that employer ever told its
employees, including claimant, to shore the chimney by using a
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brace. Thus, no evidence proved that claimant intended to commit
an act which he knew, or should have known, was wrongful or
forbidden.
"'Wilful' . . . imports something more than a
mere exercise of the will in doing the act.
It imports a wrongful intention. An
intention to do an act that he knows, or
ought to know, is wrongful, or forbidden by
law. . . . There cannot, however, be a
wilful failure to perform an unknown duty."
Brockway v. Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161
(1995) (quoting King v. Empire Collieries Co., 148 Va. 585,
590-91, 139 S.E. 478, 479 (1927)).
Because credible evidence supports the commission's
findings, we cannot say that the commission erred in ruling that
employer failed to prove that claimant was guilty of willful
misconduct.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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