Oscar Anagua v. Rafael Sosa and Uninsured Employer�s Fund

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Haley, Beales and Alston
Argued at Alexandria, Virginia
OSCAR ANAGUA
OPINION BY
v. 	Record No. 0393-11-4 	JUDGE JAMES W. HALEY, JR.
JANUARY 31, 2012
RAFAEL SOSA AND
UNINSURED EMPLOYER’S FUND
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Andrew S. Kasmer for appellant.
Douglas A. Seymour (Siciliano, Ellis, Dyer & Boccarosse PLC, on
brief), for appellee Uninsured Employer’s Fund.
No brief or argument for appellee Rafael Sosa.
I. INTRODUCTION
Code § 65.2-508(A), refining the jurisdiction of the Workers’ Compensation
Commission, reads in pertinent part:
When an accident happens while the employee is employed
elsewhere than in this Commonwealth which would entitle him or
his dependents to compensation if it had happened in this
Commonwealth, the employee or his dependents shall be entitled
to compensation, if:
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.
(Emphasis added).

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On appeal, Oscar Anagua (claimant) argues that the commission erred in dismissing his
claim for lack of jurisdiction because the commission had jurisdiction under Code § 65.2-508
and that appellee failed to meet his burden of proof that the contract of hire was solely for
services to be performed “exclusively” outside of Virginia. The dispositive jurisdictional issue
here for resolution is whether the commission properly determined that claimant’s contract was
for services exclusively to be rendered outside the Commonwealth. We affirm the commission.
II. BACKGROUND
The relevant facts can be succinctly stated.
Claimant’s friend, one Cejas, had given claimant’s telephone number to an individual
named Sosa. On June 22, 2009, Sosa called claimant at his home in Fairfax County and offered
him work on a project in Delaware. No length of employment was ever discussed nor was any
project other than the one in Delaware. Claimant had never met or talked to Sosa before.
The same day claimant, one Vasquez, and Cejas met Sosa at a Home Depot in Fairfax
County, Virginia and immediately proceeded to Delaware in Sosa’s van. Claimant was to be
paid $15 per hour for working 10 hours per day. Sosa gave claimant a business card for future
contact. Sosa apparently worked out of his home in Fairfax County.
While doing drywall work in Delaware, claimant fell off a ladder and was injured. Sosa,
claimant, and the other workers were all present in Delaware at the time of the accident.
At the hearing before a deputy commissioner, the following exchanges occurred during
claimant’s testimony:
Q. And, what was your understanding of how long you were going
to work for him?
A. He didn’t tell me anything about that.
* 	* 	* 	* 	* 	* 	*

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Q. Mr. Anagua, at the deposition, I asked you, when you were
hired by Mr. Sosa, were you hired just to work at the Delaware job
site? And, your response was, yes. Correct?
A. Yes.
* 	* 	* 	* 	* 	* 	*
Q. Mr. Anagua, you received this business card from Rafael Sosa.
Correct?
A. Yes.
Q. And you received it from him, because you asked for the
business card. Correct?
A. Yes, I asked him, so I could call him, you know, for anything.
Q. Call, call him in case he had future, some sort of future job for
you?
A. Yes . . . .
Q. So, after the job in Delaware was finished, if you were looking
for work, you could call Mr. Sosa?
A. Yes, that’s why I always ask for cards.
* 	* 	* 	* 	* 	* 	*
Q. And he hired you to work in the, for the Delaware job. Correct?
A. Yes.
Emiliano Vasquez, the co-worker, likewise testified:
Q. And, at the time you were hired, where was Mr. Sosa doing
business out of?
A. He was on Route 1, Delaware.
* 	* 	* 	* 	* 	* 	*
Q. [A]nd the first job he took you to was where?
A. Delaware.

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Q. And, Mr. Sosa hired you to work in Delaware. Correct?
A. Correct.1
The deputy commissioner and a majority of the commission concluded that claimant’s
contract was exclusively for services to be rendered outside the Commonwealth and that
accordingly the commission was without jurisdiction to make an award. The commission wrote:
“We find that the contract of hire was only for work outside of the Commonwealth. . . . We find
that the evidence shows that the claimant was only hired for the Delaware job.” With this
finding of fact, the commission dismissed the application.
III. ANALYSIS
“Jurisdiction over workers’ compensation claims in Virginia is governed by statute.”
Pro-Football Inc. v. Paul, 39 Va. App. 1, 7, 569 S.E.2d 66, 70 (2002). We are bound by a
finding of the commission that it had, or had not, jurisdiction to hear the claim, unless such a
finding be plainly wrong or without evidence to support it. CLC Constr., Inc. v. Lopez, 20
Va. App. 258, 264, 456 S.E.2d 155, 157 (1995); Worsham v. Transpers., Inc., 15 Va. App. 681,
683, 426 S.E.2d 497, 499 (1993). “[W]here the findings of fact of the Commission are based on
credible evidence, they are binding and conclusive upon this Court.” Bd. of Supervisors of
Henrico County v. Taylor, 1 Va. App. 425, 430-31, 339 S.E.2d 565, 568 (1986). This Court
must evaluate the evidence in the light most favorable to the party prevailing before the
commission—the employer in this case. R. G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211,
212, 390 S.E.2d 788, 788 (1990).
In de la Rosa Herrera v. Martin, 49 Va. App. 469, 477, 642 S.E.2d 309, 313 (2007), the
jurisdictional fact was whether a contract had come into existence. We wrote: “[W]e hold that
1 At the time of the hearing, Mr. Sosa’s whereabouts were unknown.

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an employment contract, as contemplated by Code § 65.2-508(A), did not exist. Thus, we agree
that the commission did not have jurisdiction to entertain this claim, and we affirm the
commission.” Id.
In Worsham, 15 Va. App. at 683, 426 S.E.2d at 498, a fact necessary to invoke
jurisdiction pursuant to Code § 65.2-508(A)(2) was whether the employer had a “place of
business” in the Commonwealth. We affirmed the commission’s finding of fact that the
employer did not, which had resulted in dismissal of the application. Id. at 683, 426 S.E.2d at
499.
In Sorrels v. Foreign Mission Board of the Southern Baptist Convention, 227 Va. 6, 8-9,
313 S.E.2d 370, 371-72 (1984), the Virginia Supreme Court wrote in a per curiam opinion:
Under certain circumstances, coverage of the Act extends
to injuries suffered in an accident “while the employee is employed
elsewhere than in this State.” Code § 65.1-61 [now § 65.2-508].
Such coverage, however, is subject to a jurisdictional proviso:
“Provided the contract of employment was not expressly for
service exclusively outside of the State.”
* 	* 	* 	* 	* 	* 	*
. . . We are of the opinion the legislative intent was to exclude
coverage of the Act when the parties to the employment contract
mutually understood that no part of the employee’s services was to
be performed inside the Commonwealth.
A commentary notes that under Virginia law coverage “applies to out-of-state injuries
only if the place of contract and the employer’s place of business are both within the state—and
not even then if the contract is for services exclusively outside the state.” 9 Arthur Larson & Lex
K. Larson, Larson’s Workers Compensation Law § 143.01[2] (2004).
On brief, claimant writes that “[t]he statute does not set forth which party bears the
burden of proof” and argues “the burden of proof was on the employer to establish” that the
contract was for services exclusively outside Virginia. In support of this proposition, he relies

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upon Craddock Moving and Storage Co. v. Settles, 16 Va. App. 1, 427 S.E.2d 428 (1993). That
reliance is misplaced. Craddock dealt with the burden of establishing whether a putative
employer did not have “regularly in service less than three employees,” and allocated that burden
to the employer. Id. at 3, 427 S.E.2d at 430; see also Code § 65.2-101(4)(2)(h).
We do observe that several cases have addressed the question of which party bears the
burden of proof as to the jurisdictional elements of Code § 65.2-508.
In CLC Construction, Inc., this Court wrote:
In order for jurisdiction to lie in Virginia, a claimant must show
that (1) his contract of employment was made in Virginia; and
(2) the employer’s place of business is in Virginia, provided the
contract of employment was not expressly for service exclusively
performed outside of Virginia. We are bound by the commission’s
finding that it had jurisdiction . . . unless we find that the
commission was plainly wrong in concluding that Lopez’s
evidence proved both of these elements.
20 Va. App. at 263-64, 456 S.E.2d at 157 (citation omitted and emphasis added). See also de la
Rosa Herrera, 49 Va. App. at 475, 642 S.E.2d at 312 (“[H]errera failed to prove there was a
contract” in existence in Virginia. (emphasis added)); Worsham, 15 Va. App. at 683, 426 S.E.2d
at 499 (“[T]he commission was not plainly wrong in finding that Worsham did not prove that
Transpersonnel’s “place of business” at the time of the accident was in Virginia.” (emphasis
added)).
We further note that the proviso in Code § 65.2-508(A)(2) has been uniformly considered
by the commission as a portion of the claimant’s burden of proof to invoke the jurisdiction of the
Act. See Williamson v. F. Garcia/Fortino Garcia & Sons, No. 212-51-13, 2004 Va. Wrk. Comp.
LEXIS 912, at *10 (Nov. 8, 2004) (“We find that the claimant’s testimony . . . satisfies his
burden of proving that the contract of employment was not expressly for service outside the state
of Virginia.” (emphasis added)); Wimbish v. Caliper, Inc., No. 184-36-72, 2002 Va. Wrk. Comp.
LEXIS 1478, at *3 (Aug. 29, 2002) (“The claimant failed to prove that the contract of

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employment was not for service exclusively outside of Virginia.” (emphasis added)); see also
Flores v. D B & A General Contractors, Inc., 79 O.W.C. 24 (2000); Mohamed v. BDM Fed.,
Inc., No. 168-34-55, 1995 Wrk. Comp. LEXIS 954 (Mar. 7, 1995).
While “the commission’s conclusions of law are not binding on this Court,” Thomas
Refuse Serv. v. Flood, 30 Va. App. 17, 20, 515 S.E.2d 315, 317 (1999), when interpreting
provisions of the Workers’ Compensation Act, “‘[w]e follow the settled rule that the construction
accorded a statute by public officials charged with its administration is entitled to be given
weight by the courts. Indeed, [this Court] has said that the Commission’s construction of the
Workers’ Compensation Act should be given “great” weight.’” Sturtz v. Chesapeake Corp., 38
Va. App. 672, 675, 568 S.E.2d 381, 383 (2002) (quoting Bohle v. Henrico County School Bd.,
246 Va. 30, 35, 431 S.E.2d 36, 39 (1993)). That deference, nonetheless, is tempered:
“[a]lthough the practical construction given to a statute by
public officials charged with its enforcement is entitled to great
weight by the courts and in doubtful cases will be regarded as
decisive, when an issue involves a pure question of statutory
interpretation, that issue does not invoke the agency’s specialized
competence but is a question of law to be decided by the courts.”
Diaz v. Wilderness Resort Assn’n, 56 Va. 104, 114, 691 S.E.2d 517, 522 (2010) (quoting
Commonwealth v. Baker, 275 Va. 529, 536, 659 S.E.2d 502, 508 (2008)); see also Ford Motor
Co. v. Gordon, 281 Va. 543, 549, 708 S.E.2d 846, 850 (2011) (“An issue of statutory
interpretation is a pure question of law which we review de novo.”); Prince William County
School Bd. v. Rahim, 58 Va. App. 493, 500, 711 S.E.2d 241, 244 (2011) (en banc).
Those cases noted, we find it unnecessary to address claimant’s argument concerning the
allocation of the burden of proof, for the following reasons.
First, there is no evidence in the record that any contract between Sosa and claimant
involved work in Virginia. Irrespective of whether claimant had the burden of production, or the
burden of persuasion, or either or both burdens lay with the employer, the only evidence is that

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the only contract in existence was for work in Delaware alone. As the Sorrels Court wrote:
“Considering the uncontradicted evidence, the Commission found that the Board and Sorrels
mutually understood ‘that the claimant’s services were expressly to be performed exclusively
outside of the Commonwealth of Virginia.’” 227 Va. at 9, 313 S.E.2d at 372 (emphasis added).
That observation here applies.
In addition, we are bound by the commission’s findings of fact in this case that ultimately
decide the question of jurisdiction, quoted above, if the same is supported by credible evidence.
That finding is amply supported by the record. See de la Rosa Herrera, 49 Va. App. at 475, 642
S.E.2d at 312; Pro-Football, Inc., 39 Va. App. at 7, 569 S.E.2d at 69-70; CLC Constr., Inc., 20
Va. App. at 264, 456 S.E.2d at 157; Worsham, 15 Va. App. at 683, 426 S.E.2d at 499.
Finally, based upon the doctrine of Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652,
656 (1922), claimant “cannot be heard to ask that his case be made stronger than he makes it,
where, as here, it depends upon facts within his own knowledge and to which he has testified.”
Here, as quoted above, claimant testified the existing contract was for work in Delaware alone.
The commission appropriately relied on this testimony and a number of pieces of credible
evidence, Taylor, 1 Va. App. at 430-31, 339 S.E.2d at 568, when it concluded that the last prong
of Code § 65.2-508(A) was not met and stated: “We find that the contract of hire was only for
work outside of the Commonwealth.” The commission therefore concluded that jurisdiction was
improper. Not only did claimant admit multiple times in his testimony that he was hired only for
the Delaware job, but the only work actually performed by claimant for appellee was in
Delaware. Also, Vasquez’s testimony indicated that he and claimant were hired because
appellee needed additional workers for a Delaware job. Furthermore, claimant testified that he
asked for appellee’s business card so that he could contact him about future work after the
Delaware job concluded. Any one of these pieces of evidence would have sufficed as credible

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evidence supporting the commission’s factual finding. All together, they clearly support the
commission’s finding and are thus binding on this Court. Taylor, 1 Va. App. at 430-31, 339
S.E.2d at 568.
For these reasons, the decision of the commission is affirmed.
Affirmed.