 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Perry v. Delisle11/30/2004
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
The Workers' Compensation Commission ruled that Tom Delisle, trading as R & T Construction, sustained his burden of proving he regularly employs fewer than three people. Melvin G. Perry contends the commission erred in concluding that Delisle was not within the coverage of the Act and, therefore, in ruling Perry's injury by accident was not compensable. For the reasons that follow, we reverse the commission's decision.
I.
The essential facts are not contested. The commission found that Melvin G. Perry suffered an injury on April 4, 2001 while he was employed by R & T Construction. Tom Delisle owned R & T Construction and operated it as a sole proprietorship for nine to ten years. Delisle testified that R & T Construction performed only small building construction projects and explained, for example, that "a big drywall job " for a complete house was beyond the capabilities of his employees. He added, however, that R & T Construction uses subcontractors and independent contractors for some of its projects. He also testified that his general practice was to finish one project before beginning another.
The evidence proved that Delisle first employed Perry in 1998. Perry testified that Delisle had four employees at that time. Delisle confirmed that Perry's testimony of four employees in 1998 "could be true." Indeed, Delisle recalled that R & T Construction had four employees at various other times:
Q: Now, during 1998 you had three employees except the time when you had Doug and you had four?
A: I guess so.
Q: Okay, in '99 you had three employees?
A: Part of the time, yes. Sometimes. Not all the time. If they stayed, but if they'd leave I'd be back down to two and I might be up to four.
R & T Construction had three employees (Perry, Ramone Gonzales, and Vincent Mariner) in 2000 and performed building renovations at various sites during that year. The projects included building construction at Ed Hopkins's house "that took a long time" and ongoing, recurrent projects at Hermitage Nursing Home, where R & T Construction "always something . . . to do." That same year, Delisle began constructing his personal residence. Although Delisle testified that his personal residence was not a R & T Construction project, he also testified that all three of R & T Construction's employees worked at his residence in 2000 and were paid by R & T Construction.
In December 2000, when R & T Construction had employees working on the Hopkins house and on Delisle's residence, Mariner quit. Delisle testified that R & T Construction did not replace Mariner because he "wasn't much of an asset and [the business] didn't have that much work for -- really didn't need another employee." After Mariner quit, R & T Construction had two employees, Perry and Gonzales. Between January and August of 2001, R & T Construction paid its two employees for work they performed at Delisle's residence and for construction work on the David Greene residence, another project of R & T Construction. Perry was installing vinyl siding at the Greene residence in April 2001 when he fell from scaffolding and injured his back.
Delisle personally hired other people to perform work constructing his residence in 2000 and 2001. One of those persons was Mickey Parks, whose jobs included trim work and installation of sub-flooring. Delisle testified that he paid Parks from his personal funds and that Parks was not then an employee of R & T Construction. However, in August or September of 2001, several months a
Page 1 2 3 4 5 6 Virginia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|