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Perry v. Delisle7/12/2005
ermination of whether an employer's "established mode of business" requires three or more employees is a finding of fact to which this Court gives deference on appeal. See Osborne, 36 Va. App. at 97, 548 S.E.2d at 273 (affirming the commission's conclusion that the employer did not require three or more employees to carry out its established mode of business, reasoning that this finding was supported by "credible evidence" that the employer's "employment of three persons on the day [the worker] was injured was the exception and not the rule"); cf. Bois v. Huntington Blizzard, 39 Va. App. 216, 222 n.1, 571 S.E.2d 924, 927 n.1 (2002) ("We note that most of the cases analyzing Code ยง 65.2-101 have discussed the term "regularly in service" in relation to the number of employees necessary for coverage because that was the factual basis for disputing coverage." (emphasis added)).
Here, the commission found that "Mr. Delisle sustained his burden of proving that he did not regularly employ three or more employees in the Commonwealth at the time of the claimant's accident and injury . . . ." The commission reasoned that, at the time of Perry's accident, Delisle did not require three or more employees to perform his "established mode of business." In making this determination, the commission relied on Delisle's explanation that he "chose not to replace a third employee who left his employ in 2000 because he did not need the additional worker to perform his business."
Thus, the commission made two factual determinations: (1) at the time of Perry's accident, Delisle did not "regularly employ" three or more employees, and (2) at the time of Perry's accident, Delisle's "established mode of business" did not require three or more employees. On appeal, we are bound by these findings of fact as long as "there was credible evidence presented such that a reasonable mind could conclude that the fact in issue was proved." Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411, 415 (1988) (emphasis in original); see also United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (noting that, if the lower court's "'account of the evidence is plausible in light of the record viewed in its entirety,'" the appellate court "will not reverse the [lower] court's finding simply because we have become convinced that we would have decided the fact differently" (quoting Anderson v. Bessemer City, 470 U.S. 564, 573 (1985))).
Under the circumstances of this case, there is credible evidence in the record that supports the commission's findings. Specifically, the commission's factual finding that, at the time of Perry's accident, Delisle did not "regularly employ" three or more employees is supported by Delisle's testimony that his business only had two employees during the continuous eight-month period from December of 2000 until August of 2001. The commission's factual finding that Delisle's "established mode of performing business" did not regularly require three or more employees is supported by Delisle's testimony that he chose not to replace the employee who left in November of 2000 "because he did not need the additional worker to operate his business." Also, as noted by the deputy commissioner, the record indicates that Delisle "continued to operate with two employees for another four months after [Perry's] incident despite Perry's inability to return to the full duties of his pre-injury employment." The fact that Delisle operated his business for four months with, in effect, one and a half employees supports the commission's conclusion that, at the time of the accident, Delisle did not require three or more employees to carry out the "established mode" of performing his business.
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