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					VIRGINIA:                                                                   02/11/2010
IN THE WORKERS‟ COMPENSATION COMMISSION


YESEN MUNOS, Claimant
                                                                           Opinion by DIAMOND
                                                                                Commissioner
v.                     VWC File No. 239-96-40

MOLD ABATEMENT SERVICE, INC., Employer
- NO RECORD OF INSURANCE –


Gregory J. Park, Esquire
for the Claimant.
(Copy sent Priority Mail)

Mold Abatement Service, Inc.
Employer
(Copy sent Priority Mail)

Angela F. Gibbs, Esquire
for the Uninsured Employer‟s Fund.
(Copy sent Priority Mail)


       REVIEW before Commissioner Diamond, Commissioner Dudley and Commissioner
Williams on January 7, 2010, at Richmond, Virginia.

       This case is before the Commission at the request of the claimant for Review of a

decision of the Deputy Commissioner which found that the Commission does not have

jurisdiction over his accident. We REVERSE and REMAND.

       The claimant filed an application on September 2, 2008, seeking benefits for a right wrist

injury on June 27, 2008. He is seeking temporary total disability benefits from June 28, 2008,

and continuing. The employer did not appear at the hearing pursuant to a Show Cause Order

directing it to address its failure to insure its workers‟ compensation liability. The employer also

did not respond to interrogatories. The Uninsured Employer‟s Fund appeared, defending that the

Commission has no jurisdiction, that the claimant was an independent contractor, and that he was
                                                                      VWC File No. 239-96-40

not disabled to the extent alleged, and therefore not entitled to compensation during periods of

partial incapacity due to his immigration status.

       The claimant testified that he worked for Kevin, the owner of Mold Abatement Services.

His job was to remove pipes and asbestos from floors, and to remodel sheetrock. Kevin hired

him approximately eight months prior to the accident. He was hired at a jobsite at a Manassas

hospital. He was offered $13 an hour cash for a 40 hour work week. He worked in Manassas for

about two weeks and then moved to another jobsite. The claimant stated that the company has an

office in Manassas. At the time he was hired there were 12 employees. At the time of the

accident there were about eight employees.

       The claimant introduced a check dated February 29, 2008, made payable to the claimant

from the account of Mold Abatement Services, Inc., with an address of P.O. Box 2142,

Woodbridge, Virginia. The check for $1,040 was returned for insufficient funds.

       The claimant stated that his accident occurred in Silver Spring, Maryland, on June 27,

2008. It was a one day job. When he grabbed a bar to open a window, “it seemed like it

exploded,” and the glass of the window cut his hand. The owner, Kevin, was present, and took

him to the hospital. At that time other workers were doing jobs in Washington, D.C. and

Maryland.

       The company provided the claimant with a protective suit and the claimant had his own

mask and tools. The company provided a scraper and tape. The supervisor, either Minor or

Guidan, set the schedule. The claimant has a license to remove asbestos obtained following a

one week training class. While he was working for Mold Abatement, the claimant did not work

for any other employers. He stated “I couldn‟t work for two companies at the same time.”




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       The medical records reflect that on June 27, 2008, the claimant was opening a window at

work when the glass broke and he sustained lacerations on his right wrist and left forearm. He

sustained posttraumatic carpal tunnel syndrome secondary to neuropraxis or partial laceration of

the medial nerve. On October 3, 2008, Dr. Jeffrey H. Phillips, orthopedic surgeon, stated that

“[t]he patient is moving out of the „Golden Period‟ and may not even be able to have the nerve

repaired if indeed it is found to be lacerated and not simply severely scarred in. The delay by

compensation can be causing profound irreparable harm to this patient.”

       The Deputy Commissioner found that the Commission has jurisdiction over this foreign

injury pursuant to § 65.2-508 of the Act. The Commission‟s jurisdiction over foreign accidents

is pursuant to Virginia Code § 65.2-508, which requires that: (1) The contract of employment

was made in this Commonwealth; and (2) The employer's place of business is in this

Commonwealth; provided the contract of employment was not expressly for service exclusively

outside of the Commonwealth. These requirements are jurisdictional and the claimant bears the

burden of proving both elements. CLC Construction, Inc. v. Lopez, 20 Va. App. 258, 263-264,

456 S.E.2d 155, 157 (1995); Shawner v. B. E. & K. Contractors, 60 OIC 392 (1981).

       The claimant was hired in Virginia, performed work in Virginia, and the employer has a

place of business in Virginia. We agree that the Commission has jurisdiction over the injury.

Moreover, the Uninsured Employer‟s Fund did not appeal these findings.

       The Deputy Commissioner further found that the claimant was an employee, not an

independent contractor. This was also not appealed, and we agree. The claimant‟s testimony

establishes that he worked exclusively for this employer on a regular 40 hour work schedule for

eight months; that the employer determined when and where he would report to work and

supervised that work; the employer provided some tools and a uniform. The fact that the



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employee was certified to do asbestos removal does not undermine the finding that he was an

employee.

       The Deputy Commissioner denied the claim on the grounds that he was unable to

determine that the employer had three employees regularly in service in Virginia on the date of

the accident. We REVERSE.

       The claimant had the burden to prove that he was an employee, which he did. The

claimant also had the burden to prove that his foreign injury was within the Commission‟s

jurisdiction, which he did. The claimant had the burden of proving an injury by accident arising

out of and in the course of the employment, which he did.

       The employer had the burden of proving that it had regularly in service fewer than three

employees. Craddock Moving & Storage Co. v. Settles, 16 Va. App. 1, 427 S.E.2d 428 (1993),

aff‟d per curiam, 247 Va. 165, 440 S.E.2d 613 (1994). As the Court explained, it is uniquely

within the employer‟s knowledge as to its own operations and its number of employees, and

therefore it is best able to produce evidence on this issue. The employer did not prove that it had

less than three employees regularly in service in Virginia.

       On Review, the Uninsured Employer‟s Fund would have the Commission hold that when

an employer fails to obtain workers‟ compensation insurance and then disappears following an

accident, the burden is on the injured worker to track down evidence of the employer‟s regular

operations. This is contrary to the law as well as poor public policy. As explained by the Court

in Craddock, it is the employer who is in possession of information about its regular workforce

and mode of operation.       Here we have an employer with an office in Virginia, with a

Woodbridge address on its checks, with a construction practice in the Washington, D.C.

metropolitan area, and with a workforce of at least eight to twelve workers.           It was the



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employer‟s burden of presenting evidence that it did not regularly employ three people in

Virginia. The employer did not appear and did not present any evidence to carry this burden.

       The Opinion below is therefore REVERSED, and the case is REMANDED for additional

findings.

       This matter is hereby removed from the Review docket.


cc:   Yesen Munos
      Sedgwick Claims Mgmt. Serv. Inc.




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