Opinion
Record No. 0466-93-4
February 8, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Roger A. Ritchie (Roger A. Ritchie and Partners, on brief), for appellant.
M. Bruce Wallinger (Wharton, Aldhizer Weaver, on brief), for appellees.
Present: Judges Benton, Elder and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Vickie J. Smith appeals the decision of the Workers' Compensation Commission holding that it lacked jurisdiction over her claim because her employer did not regularly employ three or more people at the time of her accident in 1990. In its initial review of this case, the commission held inadmissible certain evidence offered by claimant to show that the commission had jurisdiction over her claim. In so holding, however, it failed to accept her proffer of evidence for the record. Because we could not "ascertain on appeal whether the evidence claimant sought to introduce was relevant and material," we reversed the commission's ruling and remanded for the acceptance of claimant's proffer. See Smith v. Hylton, 14 Va. App. 354, 357-58, 416 S.E.2d 712, 715 (1992). On remand, the commission accepted the proffer but again ruled the evidence inadmissible and held that it had no jurisdiction over claimant's claim.
In this appeal, claimant argues that (1) the commission erred in holding inadmissible her proffered evidence that employer had three or more paid employees between 1985 and 1989; and (2) the commission erred in finding the remaining evidence insufficient to show that employer had three or more regular employees at the time of claimant's accident. For the reasons that follow, we affirm the commission's denial of benefits.
I.
Claimant asserts first that the commission erred in holding inadmissible her proffered evidence that employer had three or more regular employees between 1985 and 1989. She asserted that she could prove that the volume and nature of the business during those years was the same as at the time of her injury, thereby strengthening her claim that employer also employed at least three regular employees at the time of her injury, an element necessary to entitle her to coverage under the Act.See Code § 65.2-101. In addressing this issue, we are guided by the following principles:
The ultimate inquiry in determining whether evidence is both material — tending to prove a matter which is properly at issue in the case — and relevant — tending to establish the proposition for which it is offered — is: Does the evidence tend to prove a proposition which is itself provable in the case?
Johnson v. Commonwealth, 2 Va. App. 598, 601, 347 S.E.2d 163, 165 (1986). In addition, the aforementioned determinations are "within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).
The commission found that claimant's evidence was neither relevant nor material because (1) she failed to establish that she had any basis for knowing the level of operation of employer's business in 1986 and 1987, a period when she was not employed there; and (2) even if she could demonstrate such knowledge, she failed to show that the purported level of operation in 1986 and 1987 had not changed prior to the time of her injury in 1990. Our review of the record reveals that the commission did not abuse its discretion in so holding, for claimant clearly failed to show any connection between the level of operation of the stables in 1986 and 1987 — during which period she asserted employer had at least three regular employees as defined by the Act — and their level of operation at the time of her injury.
For these reasons, we hold that the commission's refusal to admit claimant's proffered evidence did not constitute reversible error.
II.
Claimant also asserts that the commission erred in finding the remaining evidence insufficient to show employer had three or more regular employees at the time of the accident. As we noted in our initial review of this case, we must analyze the character of the business in terms of the number of employees "regularly in service" of the employer. Smith, 14 Va. App. at 356, 416 S.E.2d at 714. Although this phrase excludes those "whose employment is not in the usual course of the trade, business, occupation or profession of the employer," id. (quoting Code § 65.2-101), includes all those "used to carry out the established mode performing the work of the business . . . even though the work may be recurrent instead of constant." Id. "If an employer regularly employs three or more persons [as defined above] . . ., he should remain subject to the provisions of the Act even if . . . the number of his employees temporarily falls below three." Cotman v. Green, 4 Va. App. 256, 259, 356 S.E.2d 447, 449 (1987). By inference, an employer who regularly employs only two people but occasionally has three or more people on the payroll should not be subject to the provisions of the Act.
The burden is on claimant to plead and prove coverage. See Aistrop v. Blue Diamond Coal Co., 181 Va. 287, 296, 24 S.E.2d 546, 549-50 (1943) (construing earlier version of Act). "'What constitutes an employee is a question of law'; however, whether a specific person falls within that definition 'is usually a question of fact.'" Metropolitan Cleaning Corp. v. Crawley, 14 Va. App. 261, 264, 416 S.E.2d 35, 37 (1992) (en banc) (quotingIntermodal Servs., Inc. v. Smith, 234 Va. 596, 600, 364 S.E.2d 221, 223 (1988) (citation omitted)). Decisions of the commission as to questions of fact are conclusive and binding upon this Court if supported by credible evidence. Code § 65.2-706; see Manassas Ice Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). We must view the evidence in the light most favorable to the employer, as the prevailing party below, and "[t]he fact that contrary evidence may be found in the record is of no consequence if credible evidence supports the commission's finding." Manassas, 13 Va. App. at 229, 409 S.E.2d at 826.
Claimant urges us to follow the Cotman test, which requires consideration of employer's overall pattern of employment during the period prior to the accident. Because we conclude here that the record contains credible evidence to support the commission's conclusion that employer had only two regular employees, as defined by Cotman, during the two-year period prior to claimant's accident, we affirm the commission's ruling that it lacked jurisdiction under the Act. Claimant makes much of the fact that two groomers — Grattan and claimant — were in employer's employ at the time of the accident and that employer also regularly employed a stall cleaner, even if he was temporarily operating without one at the time of the accident. Although it appears from the payroll records that employer may have had three regular employees for a period following the accident, the record clearly contains credible evidence from which the commission could find that employer had only two employees in his service during the two years prior to claimant's accident.
We reach this same conclusion despite claimant's assertion that Heishman and Huffman were also regularly employed by employer. We conclude that Heishman's status while painting is irrelevant to the resolution of this issue. It is uncontested that she was regularly employed by employer as a stall cleaner for several months prior to claimant's accident, and her status while painting for employer makes no difference, for any period of "overlap" in which employer had more than three employees was brief and did not elevate the number of regular employees to three. We also hold that the record contains credible evidence to support the commission's conclusion that John Huffman was not an employee. The relationship between Hylton and Huffman is similar to that which existed in Behrensen v. Whitaker, 10 Va. App. 364, 392 S.E.2d 508 (1990).
For the aforementioned reasons, we affirm the commission's denial of benefits.
Affirmed.