Frank Austin Darby v. Allen W. Harvey, etc ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Felton
Argued at Richmond, Virginia
FRANK AUSTIN DARBY
MEMORANDUM OPINION* BY
v. Record No. 2101-02-2 JUDGE WALTER S. FELTON, JR.
JUNE 24, 2003
ALLEN W. HARVEY, T/A IVY HILL FARM,
IVY HILL DEVELOPMENT COMPANY, INC., AND
UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert L. Flax (Flax and Stout, on briefs),
for appellant.
Linda D. Frith (E. Albion Armfield; Frith,
Anderson and Peake, P.C., on brief), for
appellees Allen W. Harvey, t/a Ivy Hill
Farm, and Ivy Hill Development Company, Inc.
John J. Beall, Jr., Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee Uninsured Employer's
Fund.
Frank Darby appeals a decision of the Workers' Compensation
Commission denying him benefits for an injury sustained to his
left leg while working at Allen Harvey's private residence.
Darby contends on appeal that the commission erred in
determining that (1) he was an independent contractor; (2) if he
was deemed an employee rather than an independent contractor, he
was an employee of Harvey and not Ivy Hill Development
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Corporation; and (3) Harvey was exempt as an employer from the
Workers' Compensation Act. We affirm the commission's decision.
I. BACKGROUND
On appeal, "[d]ecisions of the commission as
to questions of fact, if supported by
credible evidence, are conclusive and
binding on this Court." Manassas Ice & Fuel
Co. v. Farrar, 13 Va. App. 227, 229, 409
S.E.2d 824, 826 (1991) (citing Code
§ 65.1-98; McCaskey v. Patrick Henry Hosp.,
225 Va. 413, 415, 304 S.E.2d 1, 2 (1983)).
[Footnote omitted.] "The fact that contrary
evidence may be found in the record is of no
consequence if credible evidence supports
the commission's finding." Id. (citing
Russell Loungewear v. Gray, 2 Va. App. 90,
95, 341 S.E.2d 824, 826 (1986)). We view
the evidence in the light most favorable to
the party prevailing below. Creedle Sales
Co. v. Edmonds, 24 Va. App. 24, 26, 480
S.E.2d 123, 124 (1997).
County of Henrico Police v. Medlin, 37 Va. App. 756, 759-60, 561
S.E.2d 60, 61 (2002).
A. THE INJURIES
On December 17, 1998, Frank Darby broke the fibula and
tibia in his left leg when it was caught between the wheel and
the fender of the tractor he was using to scrape Allen Harvey's
driveway. Harvey owned the tractor. Darby underwent several
surgical procedures as a result of his injury. His medical
records reflect that his work related and non-work related
injuries rendered him disabled to work.
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B. EVIDENCE REGARDING EMPLOYMENT STATUS
In 1995 or early 1996, Harvey engaged Darby to perform
maintenance and other odd jobs at his home in Forest, Virginia,
as well as at his Smith Mountain Lake home. 1 Occasionally Darby
performed similar work at Harvey's real estate office, Ivy Hill
Realty Company, Inc.
According to Darby, the business relationship began when he
approached Harvey about obtaining firewood from fallen trees
located on Harvey's property. Darby gave Harvey a "Darby
Brother's Cleaning Service" business card that referred to lawn
care and piecework. Harvey subsequently asked Darby if he could
help him if he was needed. Darby began upkeep of Harvey's
residences and occasionally the property of the real estate
office. 2
According to Darby, "whenever [Harvey] wanted me to do
something, he would always meet me out when I first go to work
in the mornings, he'd meet me out there and tell me what he
wanted me to do first . . . ." Darby's duties included raking
leaves, mowing, cleaning gullies and ditches, and occasionally
assisting the maintenance crew at the golf course owned by
1
Approximately eighty-five to ninety percent of the work
performed by Darby was at Harvey's residence.
2
In 1997, Harvey intermittently used another landscaping
company to assist in the maintenance of the properties.
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Harvey. 3 Occasionally he was asked to clean inside the office of
Ivy Realty Company. Darby indicated that he used Harvey's lawn
care tools, mowers, truck and tractors. However, Darby also
supplied and used his own tools such as power saws, a bush hog,
hoes, rakes, shovels, and his truck.
Although Darby was informed of the tasks that needed to be
completed, he acknowledged that it was left up to him to decide
how the tasks would be accomplished. Harvey did not supervise
Darby's work. However, on occasion he would work with Darby.
At the deputy commissioner's hearing, Darby testified that he
set his own schedule, hours, and kept his own time records.
Furthermore, if he had something else to do, he might decide not
to work that day. Darby also did work for others. He provided
lawn care for others and cleaning services for multiple
businesses. In addition, up until 1997, Darby was employed by
Richmond Security Corporation.
Ivy Hill Development Corporation was a "shell corporation."
According to Harvey, the corporation never took any tax
deductions. It never conducted any trade or business, never had
an office, never had a payroll, never had income or losses
necessitating the payment of taxes, and had four unpaid board
members. The only source of funds for the Ivy Hill Development
Corporation was from Harvey's personal assets. He used the
3
Harvey sold the golf course in May 1996.
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funds in the corporation's checking account to pay personal
expenses.
One of those personal expenses included payment to Darby
for services rendered. Darby was paid seven dollars per hour
and paid by check from the account of Ivy Hill Development
Corporation. The check stubs contained Harvey's handwritten
notations reflecting that payment was for "labor, fuel, and
equipment" and occasionally for "labor, equipment, and
supplies."
On his 1995 and 1996 federal income tax forms, Darby
indicated that he was self-employed. In 1998, Darby received
from Harvey a federal 1099 form (non-employee compensation).
C. PROCEDURAL HISTORY
At two hearings, on June 14, 2000 and May 9, 2001, Deputy
Commissioner Herring heard evidence in this case. On November
26, 2001, he issued an opinion that found Darby was an employee
of Ivy Hill Development Corporation and not an independent
contractor. Furthermore, Deputy Commissioner Herring found that
Darby had suffered a compensable injury and was disabled. Darby
was awarded workers' compensation benefits.
Harvey and the Uninsured Employer's Fund appealed the
decision to the full commission. On July 19, 2002, the
commission reversed the deputy commissioner's findings. It
determined that Darby was an independent contractor and not an
employee. Additionally, the commission found that if Darby were
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considered an employee, he was an employee of Harvey and not Ivy
Hill Development Corporation. Harvey did not possess the
requisite number of employees, three, to fall within the purview
of the Workers' Compensation Act. See Code § 65.2-101.
Therefore, Darby was not entitled to an award of benefits.
Darby appeals the commission's decision.
II. ANALYSIS
We first consider whether the commission erred in
determining that Darby was an independent contractor. What
constitutes an employee or independent contractor is a question
of law, but whether the facts bring a person within the law's
designation is usually a question of fact. See Stonega Coke &
Coal Co. v. Sutherland, 136 Va. 489, 494, 118 S.E. 133, 134
(1923). On appeal, legal questions are subject to de novo
review. However, we must give deference to any factual finding
made by the commission. See Code § 65.2-706(A); Stenrich Group
v. Jemmott, 251 Va. 186, 192, 467 S.E.2d 795, 798 (1996);
Sinclair v. Shelter Const. Corp., 23 Va. App. 154, 156-57, 474
S.E.2d 856, 857-58 (1996).
Whether the existing status is that of an
employee or that of an independent
contractor is governed, not by any express
provision of the workmen's compensation law,
but by the common-law. Crowder v. Haymaker,
164 Va. 77, 79, 178 S.E. 803. No hard and
fast rule can be laid down for ascertaining
whether the status is one or the other. It
must be determined from the facts of the
particular case in the light of well settled
principles.
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Hann v. Times-Dispatch Publ'g. Co., 166 Va. 102, 105-06, 184
S.E. 183, 184 (1936). "Independent contractors or
subcontractors are 'not countable as employees within the
meaning of the Workmen's Compensation Act . . . . [T]he Act
applies to the contractual relationship of master and servant.'"
Richmond Newspapers, Inc. v. Gill, 224 Va. 92, 97, 294 S.E.2d
840, 843 (1982) (quoting Stover v. Ratliff, 221 Va. 509, 511,
272 S.E.2d 40, 42 (1980)).
As a general rule, a person 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; other factors
merely help to elucidate the manner and
degree of control.
But an employer-employee relationship exists
only if the control reserved includes the
power to control, not only the result to be
accomplished, but also the means and methods
by which the result is to be accomplished.
"If under the contract the party for whom
the work is being done may prescribe not
only what the result shall be, but also
direct the means and methods by which the
other shall do the work, the former is an
employer, and the latter an employee. But
if the former may specify the result only,
and the latter may adopt such means and
methods as he chooses to accomplish that
result, then the latter is not an employee,
but an independent contractor. So the
master test is the right to control the
work . . . ."
Gill, 224 Va. at 98, 294 S.E.2d at 843 (quoting Craig v. Doyle,
179 Va. 526, 531, 19 S.E.2d 675, 677 (1942)).
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In the instant case, there is credible evidence supporting
the commission's finding that Darby was an independent
contractor and not an employee. Darby began performing
maintenance and other odd jobs for Harvey in 1995 or early 1996.
When Darby initially approached Harvey about obtaining work, he
provided a "Darby Brother's Cleaning Service" business card that
referred to lawn care and piecework. For taxable years 1995 and
1996, Darby indicated that he was self-employed.
At the hearing before Deputy Commssioner Herring, Darby
testified that Harvey gave him general instructions about
performing yard maintenance and other odd jobs. However, he
acknowledged that it was up to him to decide how the tasks would
be accomplished. Harvey did not supervise Darby's work.
According to Darby, Harvey would inform him of what needed to be
done and might not see him for extended periods of time
thereafter.
Darby further testified that he set his own schedule,
hours, and kept his own time records. He was permitted to do
work for others if he so desired, and he advised Harvey whether
or not he would be working. When performing his work, he not
only used tools provided by Harvey, but he also used many of his
own tools to complete his tasks.
Based on these facts, it is apparent that Harvey specified
the result only and Darby maintained the right to control the
work. See Gill, 224 Va. at 98, 294 S.E.2d at 843. There was
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credible evidence to support the commission's finding that Darby
was an independent contractor, not an employee. Since Darby was
an independent contractor, and therefore not within the scope of
the Workers' Compensation Act, we need not consider the other
issues on appeal. The decision of the commission is affirmed.
Affirmed.
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