VIRGINIA

VIRGINIA: IN THE WORKERS' COMPENSATION COMMISSION 07/10/2002 BEN BUMGARNER, Claimant Opinion by DIAMOND Commissioner v. VWC File No. 203-78-17 CUMBERLAND PLATEAU PLANNING DISTRICT COMMISSION, Employer VIRGINIA MUNICIPAL GROUP SELF-INSURANCE ASSOCIATION, Insurer Traci M. Coleman, Esquire Post Office Box 36 Castlewood, Virginia 24224 for the Claimant. Michael F. Blair, Esquire Post Office Box 2288 Abingdon, Virginia 24212 For VML Insurance Programs. James W. Osborne, Esquire Post Office Box 1768 Bristol, Virginia 24203 For Southwest Virginia Community College & Managed Care Innovations, LLC. Jay Steele, Esquire Post Office Box 2577 Lebanon, Virginia 24266 for Cumberland Plateau Planning District Commission. REVIEW on the record before Commissioner Dudley, Commissioner Tarr, and Commissioner Diamond at Richmond, Virginia. This case is before the Commission at the request of the Cumberland Plateau Planning District Commission for Review of the deputy commissioner's decision, which found that the claimant is an employee of this entity. We AFFIRM. VWC File No. 203-78-17 The claimant has been a carpenter for twenty-five years. He does not have a business license. Since 1996, he has worked in various capacities at Southwest Virginia Community College. Initially, he was on the payroll of the college, working as a clerk of the works until 1998. He then began working in maintenance for the college, in the employment of Jay Johnson Controls. In both of these capacities the claimant was an employee, first of the college, then of Johnson Controls, and both employers withheld taxes. The claimant worked on an armory building on campus. In April of 1999, the claimant worked on building offices and doing plumbing and electrical work for the college’s community center. This was finished in January 2000. After the community center project, he worked on the college’s pump house, and then in the fall of 2000, he started working on an off-campus building owned by a college foundation. It was there that he was injured on December 15, 2000. Mr. Jack Davis, the Public Works Director for the Cumberland Plateau Planning District (“the District”), stated that it was his intention to establish an employer/employee relationship with the claimant. He told the claimant that the District would provide him with workers’ compensation coverage, and bill the cost to the college. Mr. Davis said that he considered the claimant to be “one of our own.” He personally supervised the claimant’s work, set priorities for what the claimant was to do, and determined scheduling. The claimant did not require extensive supervision because of his lengthy experience in his trade. According to Mr. Davis, the claimant did not have the right to refuse an assignment. If he did, he would be disciplined up to and including dismissal for “due cause.” The claimant received holiday and vacation pay but no health insurance. Other employees received W-2’s and six holidays plus health insurance. There was no pension and no sick pay. 2 VWC File No. 203-78-17 Mr. Davis stated that the agreement in the record dated May 5, 2000, was actually not prepared or signed until after the accident. This document states that “[w]e hereby agree to pay you the sum of $17.00 an hour and provide workmen’s compensation coverage for your contract labor for work to be performed at Southwest Virginia Community College. The terms of this agreement are indefinite and can be canceled at any time by either party.” The claimant testified that his employment arrangement was determined in a meeting with himself, Dean Hudson of the college, and Mr. Davis. There was no bid or proposal type of procedure. He stated that he used everybody’s tools. He had no taxes withheld, nor did he receive health insurance. However, he got eleven paid holidays and two weeks’ paid vacation. He was paid $17.00 an hour, and he turned in his hours to the District every two weeks. He called in if he was to be out sick. He received all of his instructions from Mr. Davis, who also visited him on the job at least twice a week. Mr. Warren Lee Ferguson, finance director of the District, stated that hourly employees got seven holidays a year. One of the employees was also granted some paid leave time each month. Taxes were withheld. Although Mr. Ferguson did not consider the claimant an employee, he stated that Mr. Davis handled most of the matters pertaining to his operations, including payments, billing, et cetera. Mr. Andrew Chafin is executive director of the District, which he explained is a political subdivision of the state run by a board of directors. The purpose is for four counties to cooperate in job development, water and sewer, recreation, and public works. Mr. Chafin was not familiar with the claimant, and he stated that Mr. Davis has broad authority for operating the public works program, where he has worked for thirty years. 3 VWC File No. 203-78-17 The determination of whether an individual is an employee or an independent contractor is based on the common law. The most important factor to be weighed is the extent to which the purported employer has control over the claimant, meaning not just the final product, but the “means and methods” by which the work is performed. Richmond Newspapers v. Gill, 224 Va. 92, 294 S.E.2d 840 (1982). An individual’s status as an employee is not determined by whether the person is skilled, unskilled, professional, or managerial, and therefore varying degrees of independence in performing work are present within the contours of the employment status. In this case, we find that the claimant is an employee. Mr. Davis was given broad discretion in controlling the public works department, and his intention was that the claimant function as “one of our own” employees, notwithstanding his occasional use of the term “contractor.” Mr. Davis determined the claimant’s schedule, his priorities, and he retained the right to discipline or discharge him. The claimant worked a regular forty-hour week, was paid by the hour, and called in when he was to be sick. He received both holiday and vacation pay. It was agreed that the claimant, who did not have a business license, was not required to provide his own workers’ compensation insurance. Mr. Davis observed the claimant on the job approximately twice a week. The fact that the claimant was a skilled tradesman, who knew more about his craft than Mr. Davis, does not undercut Mr. Davis’ control over the claimant. Although the claimant’s benefits differed from those of other employees, it appears that the benefits among the other employees (which did not include a pension or sick pay) themselves differed somewhat according to their job status. The claimant’s benefits may have differed, as well as his tax treatment by the District, but there is no requirement that all employees be treated the same, and we find that he is still an employee. 4 VWC File No. 203-78-17 The Opinion below is AFFIRMED as MODIFIED. A typographical error in the deputy's Opinion awarding temporary total disability commencing December 16, 2001, rather than December 16, 2000 was noted. The award is restated as follows: AWARD An award is hereby entered in favor of Ben Bumgarner against Cumberland Plateau Planning District Commission and Virginia Municipal Group Self-Insurance Association, insurer, for payment of compensation as follows: $453.33 per week during temporary total disability based upon a pre-injury average weekly wage of $680.00, payable weekly, commencing December 16, 2000 and continuing through May 24, 2001, inclusive. As said benefits have accrued, they are to be paid in one lump sum directly to claimant. An award is hereby entered for Ben Bumgarner against Cumberland Plateau Planning District Commission and Virginia Municipal Group Self-Insurance Association, insurer, for payment of permanent partial disability benefits of $453.33 per week for the 32% permanent partial impairment of claimant’s left foot, based on a pre-injury average weekly wage of $680.00, payable weekly, commencing July 12, 2001 and continuing for 40 weeks. All accrued benefits to be paid in one lump sum directly to claimant. Medical benefits provided in Code § 65.2-603 are awarded for as long as necessary. Interest is payable on the Award pursuant to Code § 65.2-707. The attorney’s fee awarded in the December 12, 2001, Opinion is increased to a total fee of $5,500.00, which shall be paid directly to counsel for the claimant out of accrued compensation. This case is ordered removed from the Review Docket. APPEAL This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days from receipt of this Opinion. c: Ben Bumgarner Route 1, Box 181 Lebanon, Virginia 24266 (Copy sent Certified Mail) 5 VWC File No. 203-78-17 Cumberland Plateau Planning District Commission Post Office Box 548 Lebanon, Virginia 24266 Virginia Municipal Group Self-Insurance Association VML Insurance Programs Post Office Box 5340 Glen Allen, Virginia 23058 (Copy sent Certified Mail) Southwest Virginia Community College Post Office Box SVCC Richlands, Virginia 24641 Commonwealth of Virginia Managed Care Innovations, LLC Post Office Box 1140 Richmond, Virginia 23218 6