Mount Vernon Builders, Inc., et al. v Rotty

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Alexandria, Virginia
MOUNT VERNON BUILDERS, INC.
AND
CONTINENTAL CASUALTY COMPANY OPINION BY
v. 	Record No. 0417-98-4 	JUDGE JERE M. H. WILLIS, JR.
DECEMBER 1, 1998
BRIAN ERIC ROTTY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Iris W. Redmond (Scott C. Ford; Midkiff &
Hiner, P.C., on brief), for appellants.
Christopher M. Day, Assistant Attorney
General (Mark L. Earley, Attorney General),
for Uninsured Employer's Fund.
John B. Delaney (Delaney, McCarthy, Colton &
Botzin, P.C., on brief), for appellee.
On appeal from a decision of the Workers' Compensation
Commission awarding benefits to Brian Rotty, Mount Vernon
Builders, Inc. (Mount Vernon) contends that the commission erred:
(1) in holding that Rotty was not an independent contractor; (2)
in holding that Mount Vernon was Rotty's statutory employer; and
(3) in calculating Rotty's "average weekly wage" to be $450. 	We
affirm the commission's decision on the first two issues. 	On the
issue of Rotty's "average weekly wage," we reverse and remand to
the commission for recalculation.
I.
Under familiar principles, we view the evidence in the light
most favorable to Rotty, the party prevailing below. 	The

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commission's findings of fact will be upheld on appeal if they
are supported by credible evidence. 	James v. Capitol Steel
Construction Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488-89
(1989).
Mount Vernon, a general contractor, was hired to repair the
porch and roof of a residence. 	Mount Vernon contracted to pay
Hector Roque $1,800 to repair the roof. 	The job required both
shingle and flat roof work. 	Roque contracted to pay Rotty $450
to perform the flat roof work. 	Rotty and Roque worked together
during the week at Burgundy Roofing, where Rotty had been a
roofer, off and on, for ten years.
On November 2, 1996, Roque drove Rotty to the work site.
Rotty brought his personal roofing tools. 	Roque rented an air
compressor. 	Roque, Rotty and two other laborers began work on
the shingle roof by pulling off the old shingles. 	Rotty helped
Roque prepare the roof for new shingles by "prepping" the plywood
and checking for loose nails. 	Roque then told Rotty to begin
work on the flat roof. 	As Rotty walked onto the flat roof,
rotten plywood collapsed underneath him and he fell two and
one-half stories onto concrete, fracturing his spine, pelvis and
wrist. 	The parties stipulated the cause and nature of his
injuries.
Rotty filed for temporary total disability benefits. 	The
deputy commissioner held that Rotty was an independent contractor
and thus did not qualify for benefits. 	She held further that

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Mount Vernon was not Rotty's statutory employer, because Mount
Vernon and Roque were not in the same trade or business. 	Because
she made no award, the deputy commissioner did not calculate
Rotty's average weekly wage.
On review, the full commission held that Rotty was Roque's
employee, that Mount Vernon was Rotty's statutory employer, and
that Rotty's average weekly wage was $450.
II.
Mount Vernon contends that Rotty was an independent
contractor and not Roque's employee.
"The elements of an employment relationship are: 	(1)
selection and engagement of the employee, (2) payment of wages,
(3) power of dismissal, and (4) power of control of the
employee's action. 	The most important of these is the element of
control." 	Behrensen v. Whitaker, 10 Va. App. 364, 366, 392
S.E.2d 508, 509 (1990) (citation omitted). 	The first three
elements "are not the ultimate facts, but only those more or less
useful in determining whose is the work and where is the power of
control." 	Stover v. Ratliff, 221 Va. 509, 512, 272 S.E.2d 40, 42
(1980). 	Thus, "[o]ne is an employee of another if the person for
whom he or she works has the power to direct the means and
methods by which the work is done." 	Craddock Moving & Storage
Co. v. Settles, 16 Va. App. 1, 4, 427 S.E.2d 428, 430 (1993)
(citation omitted), aff'd, 247 Va. 165, 440 S.E.2d 613 (1994).
Credible evidence supports the commission's finding that

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Rotty was Roque's employee. 	Roque hired Rotty for the job,
transported Rotty to the site, and provided tools needed for the
job. 	Roque had the "power to direct the means and methods by
which [Rotty did] the work." 	Intermodal Services, Inc. v. Smith,
234 Va. 596, 601, 364 S.E.2d 221, 224 (1988). 	All of his work
prior to his injury was work performed by Rotty under Roque's
supervision. 	Roque controlled Rotty's means and methods of work.
See Uninsured Employer's Fund v. Clark, 26 Va. App. 277, 283,
494 S.E.2d 474, 477 (1998).
III.
Mount Vernon next contends that the commission erred in
holding that Rotty was Mount Vernon's statutory employee. 	It
argues that Roque's work was not part of its "trade, business or
occupation." 	Code § 65.2-302.
Under Code § 65.2-302, two tests may be used to determine
whether a general contractor is the statutory employer of an
injured worker. 	See F. Richard Wilton, Jr., Inc. v. Gibson, 22
Va. App. 606, 610, 471 S.E.2d 832, 834 (1996). 	Using the
"subcontracted fraction test," see Code § 65.2-302(B), the full
commission held:
Mount Vernon was hired to repair and
reshingle the flat roof, reshingle the rest
of the roof and build a new front porch.
Replacing the roof was a
subcontracted-fraction of the main contract.
Mount Vernon was the general contractor who
engaged [Roque] to perform that fraction of
the contract. 	Therefore, it is the statutory
employer of [Rotty].

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The evidence supports this determination. 	Mount Vernon is a
general contractor. 	Its trade, business or occupation is general
home repair, which includes roof repair. 	It entered into a
single contract to repair the porch and roof of a residence.
Thus, Rotty, working under Roque's subcontract, was engaged in
Mount Vernon's trade or business. 	Wilton, 22 Va. App. at 610-11,
471 S.E.2d at 834-35.
IV.
Finally, Mount Vernon contends that the commission erred in
calculating Rotty's "average weekly wage." 	We agree. 	"Average
weekly wage" means
the earnings of the injured employee in the
employment in which he was working at the
time of the injury during the period of
fifty-two weeks immediately preceding the
date of the injury, divided by fifty-two
. . . . 	When, by reason of a shortness of
time during which the employee has been in
the employment of his employer or the casual
nature or terms of his employment, it is
impractical to compute the average weekly
wages as above defined, regard shall be had
to the average weekly amount which during the
fifty-two weeks previous to the injury was
being earned by a person of the same grade
and character employed in the same class of
employment in the same locality or community.
Code § 65.2-101(1)(a). 	In the interests of fairness, the
calculation should "most nearly approximate the amount which the
injured employee would be earning were it not for the injury."
Code § 65.2-101(1)(b). 	Here, the evidence is insufficient to
support the commission's calculation of Rotty's wage.
Rotty was to be paid $450 for the Mount Vernon job. 	The

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full commission set that amount as Rotty's average weekly wage,
stating only that "[t]he evidence showed the claimant was to
receive $450 for two day's worth of work which is his average
weekly wage."
Rotty had a full time job as a roofer with Burgundy Roofing.
He testified that he was paid $11 an hour and worked between
twenty and forty hours a week. 	Beverly Ange, Burgundy's owner,
testified that Rotty's average weekly wage over the fifty-two
weeks preceding his injury was $230.93.
The Mount Vernon job was the only "side job" worked by
Rotty. 	No evidence suggested that he intended to undertake other
"side jobs" or that other "side jobs" were available.
Because the commission erroneously calculated Rotty's
average weekly wage, we reverse the commission's decision on this
issue and remand for a redetermination of the amount which he
would be earning were it not for the injury.
The decision of the commission is affirmed on the issues of
liability. 	Its calculation of the award is reversed, and this
case is remanded for a determination of Rotty's "average weekly
wage" and recalculation of his award. Affirmed in part,
reversed and
remanded in part.