Steven B. McClellan v. H.L.Yoh Co. & Ins.Co of Penn ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
STEVEN B. McCLELLAN
MEMORANDUM OPINION *
v. Record No. 1174-98-3 PER CURIAM
OCTOBER 20, 1998
H. L. YOH COMPANY AND INSURANCE COMPANY
OF THE STATE OF PENNSYLVANIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(A. Thomas Lane, Jr., on brief), for
appellant.
(P. Dawn Bishop; Sands, Anderson, Marks &
Miller, on brief), for appellees.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Steven B. McClellan ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that he
was the loaned employee of Life Sciences International ("Life
Sciences") at the time of his September 13, 1996 industrial
injury. Pursuant to Rule 5A:21(b), H.L. Yoh and its insurer
(hereinafter referred to as "Yoh") raise the additional question
of whether the commission erred in finding that claimant provided
adequate notice of his accident to Yoh as required by Code
§ 65.2-600. Upon reviewing the record and the briefs of the
parties, we find that claimant's appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27. 1
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that claimant's evidence was
sufficient to sustain his burden of proof, the commission's
findings of fact are binding and conclusive upon us. See Tomko
v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,
835 (1970).
In Ideal Steam Laundry v. Williams, 153 Va. 176, 149 S.E.
479 (1929), the Supreme Court recognized that
"[a] servant may be transferred from his
service for one master--who may have made the
1
We decline to address the notice issue raised by Yoh,
because our affirmance of the commission's decision on the
"loaned employee" issue is dispositive of this case.
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express contract for employment of the
servant and may pay the latter his wages and
be his general master--to the service of
another person other than his general master;
in which case . . . (2) the special servant
must look to the special master for his
indemnity, if he is injured, while the
stipulated work is in progress, by dangerous
conditions resulting from the special
master's failure to fulfill one of those
duties which the law imposes upon the masters
for the benefit and protection of their
servants."
Id. at 180-81, 149 S.E. at 481 (citation omitted).
"For an employee to be a loaned-employee, the borrowing
employer must (1) acquire the right to control and direct the
employee, and (2) the employee must indicate, whether expressly
or impliedly, consent to becoming the employee of the borrowing
employer." Marshall Erdman & Associates v. Loehr, 24 Va. App.
670, 677, 485 S.E.2d 145, 148 (1997).
In refusing to impose liability upon Yoh for claimant's
September 13, 1996 industrial injury, the commission made the
following factual findings:
H.L. Yoh selected and hired the claimant,
paid him, deducted taxes and social security,
and had the power to dismiss him under
certain circumstances. H.L. Yoh controlled
when, and where to send the claimant to work
as an engineer and for whom claimant would be
working. Insofar as the day-to-day work was
concerned, however, H.L. Yoh had no control
over how the claimant did his work, what
particular assignments he was to do, what
shift he would be working, his times of
arrival and departure, what protective
equipment claimant was to wear or any of the
host of particular matters which arose on the
jobsite. H.L. Yoh had no trailer on the site
and maintained no presence at the site. How
the claimant performed his work on the site
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was entirely directed by his supervisor Tom
Edwards of Life Sciences.
The commission's factual findings are amply supported by the
record. The evidence proved that although Yoh hired and paid
claimant, Life Sciences exercised complete control over the
manner in which claimant performed his day-to-day work. In
addition, the evidence established that claimant impliedly or
expressly consented to his employment with Life Sciences and
promptly reported his accident to Life Sciences.
Based upon this record, we cannot find that claimant's
evidence proved as a matter of law that Yoh was his "employer" at
the time of his accident for purposes of awarding workers'
compensation benefits.
For these reasons, we affirm the commission's decision.
Affirmed.
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