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Perry v. Delisle7/12/2005
The commission clearly relied on Delisle's testimony, which it found to be credible, to conclude that, at the time of Perry's accident in April 2001, Delisle did not "regularly employ" three or more employees, nor did his "established mode of business" require three or more employees. And, because the record contains credible evidence supporting these factual determinations, we affirm.
Affirmed.
Benton, J., with whom Elder and Clements, JJ., join, dissenting.
I dissent because the majority of the commission applied an erroneous legal standard when it ruled that Tom Delisle, a sole proprietor trading as R & T Construction, met his burden of proving he was exempt from the Act. If the commission had applied the proper standard, the record supports Melvin G. Perry's claim for compensation for his injuries. I believe the dissenting commissioner properly concluded that Delisle, trading as R & T Construction, was not exempt from the Act.
The majority reviews this case to determine whether "credible evidence" supported the commission's finding. The parties agree, however, that the essential facts are not in dispute. In a case involving the interpretation of the statutory term "regularly in service" in Code § 65.2-101, we held that, " hile we generally give great weight and deference, on appeal, to the commission's construction of the Workers' Compensation Act, 'we are not bound by the commission's legal analysis in this or prior cases.'" Bois v. Huntington Blizzard, 39 Va. App. 216, 222, 571 S.E.2d 924, 927 (2002). This standard of review is all the more pertinent when, as here, the commission plainly applied an erroneous legal standard in determining that Delisle and R & T Construction were exempt from the Act.
When, as in this case, the facts are undisputed, the sole question is one of law -- did the commission reach the correct legal conclusion. City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965). The governing principles applicable to this case are well established. Under the definitions in the Act, "' mployee' shall not mean . . . mployees of any person, firm or private corporation . . . that has regularly in service less than three employees in the same business within this Commonwealth . . . ." Code § 65.2-101. " f an employer regularly employs three or more persons to carry out the established mode of performing the work of the business, he should remain subject to the provisions of the Act even . . . if the number of his employees temporarily falls below three." Cotman v. Green, 4 Va. App. 256, 259, 356 S.E.2d 447, 449 (1987).
The term "regularly" implies a "practice" or a "constant or periodic custom" of employment. Therefore, we look for "regularly-recurring periods" of employing the requisite number of persons over some reasonable period of time. In order for the employer to be subject to the Act, the recurring periods of employing the requisite number of employees should be the rule and not the exception. Stated differently, an employer's status under the Workers' Compensation Act should not fluctuate between being subject to the Act and being exempt from it.
Osborne v. Forner, 36 Va. App. 91, 96, 548 S.E.2d 270, 272 (2001) (citations omitted).
Applying the law to the facts of the case, the commission erroneously ruled as follows:
The evidence predominates in establishing that . . . Delisle did not employ three or more employees in the same business for three months before [Perry's] accident and for four months following the . . . accident. Furthermore, the record does not reflect that Mr. Delisle's established mode of performing the work of his business nece
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