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Perry v. Delisle7/12/2005
Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Bumgardner, Frank, Humphreys, Clements, Felton, Kelsey, McClanahan and Haley
Argued at Richmond, Virginia
UPON REHEARING EN BANC
OPINION
This matter comes before the Court on a rehearing en banc following the issuance of a divided panel opinion of this Court. Appellant Melvin G. Perry ("Perry") appeals a ruling from the Virginia Workers' Compensation Commission in which the commission held that appellee Tom Delisle ("Delisle") sustained his burden of proving that his business has regularly in service less than three employees and, as a result, is not subject to the provisions of the Virginia Workers' Compensation Act. Because credible evidence in the record supports the commission's finding, we affirm the judgment below.
I. BACKGROUND
The relevant facts are not in dispute. On April 4, 2001, Perry was installing vinyl siding on a house when he fell off of the scaffolding, injuring his back, head, and feet. Perry filed a claim with the commission, seeking compensation for wage loss, compensation for permanent disability, and payment of lifetime medical costs associated with his injuries.
Delisle defended the claim by arguing that he regularly employed less than three employees and, therefore, was not subject to the provisions of the Act. At the hearing before the deputy commissioner, Delisle testified that he had been operating R & T Construction for "nine or ten years." Delisle agreed that he employed three employees "throughout 1999 and for most of 2000" and that he again employed three employees beginning in the fall of 2001. From December 2000 until August 2001, however, Delisle testified that he only had two employees. And, when asked about the employee who left the company in November 2000, Delisle testified as follows:
Q: Do you recall when Mr. Mariner left?
A: He left the year before and we were working on Ed Popkins house.
Q: Okay. Do you recall when?
A: Let me think back now. I would say October of 2000, maybe, November of 2000, something like that.
Q: Okay. . . . id you replace him?
A: No.
Q: And why was that?
A: Well, I mean, he really wasn't much of an asset and we didn't have that much work for-really didn't need another employee.
(Emphasis added).
The deputy commissioner held that Delisle was not subject to the provisions of the Workers' Compensation Act, reasoning that, at the time of the accident, Delisle had "regularly in service less than three employees." Specifically, by decision issued July 1, 2003, the deputy commissioner found that Tom Delisle t/a R & T Construction employed two employees from December 2000 through August 2001. Gonzales and Delisle credibly testified that Tom Delisle t/a R & T Construction employed only Gonzales and Perry from December 2000 through August 2001. Tom Delisle t/a R & T Construction's records support this credible testimony as does Parks's credible testimony that he did not begin working for Tom Delisle t/a R & T Construction until shortly before his birthday on October 2, 2001.
The deputy commissioner also noted that "Tom Delisle t/a R & T Construction operated with only two employees for four months before Perry's fall and then continued to operate with two employees for another four months after this incident despite Perry's inability to return to the full duties of his pre-injury employment." Accordingly, the deputy commissioner concluded that this was not a case where the employer should remain subject to the provision
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