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Perry v. Delisle7/12/2005
ssarily required him to [employ] three or more employees. To the contrary, Mr. Delisle explained 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.
We conclude, therefore, 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 . . . .
Clearly, the number of employees "necessarily required" to perform the work is not the same as whether an "employer regularly employs three or more persons to carry out the established mode of performing the work of the business." Cotman, 4 Va. App. at 259, 356 S.E.2d at 449. What was "necessarily required" was simply irrelevant to the issue. Obviously, the number of employees "necessarily required" to perform the work during a temporary or transient period is immaterial to the issue of regularity of employment when the pattern of employment over a period of time shows a greater number of employees.
In determining this standard of "regularly in service," we have often cited approvingly from Larson, the leading treatise. See e.g., Cotman, 4 Va. App. at 259, 356 S.E.2d at 449. As Larson's aptly notes, " ince the practical effect of the numerical boundary is normally to determine whether compensation insurance is compulsory, an employer cannot be allowed to oscillate between coverage and exemption as its labor force exceeds or falls below the minimum from day to day." Larson's Workers' Compensation Law § 74.02 (2004) (footnotes omitted). It follows, therefore, that "if an employer has once regularly employed enough men to come under the act, it remains there even when the number employed temporarily falls below the minimum." Id. Thus, as a general proposition, "the fact that the number working at the exact time of the injury was below the minimum is of course immaterial." Id. We have uniformly applied these principles. See e.g., Bois, 39 Va. App. at 222, 571 S.E.2d at 927; Osborne, 36 Va. App. at 96, 548 S.E.2d at 272; Cotman, 4 Va. App. at 259, 356 S.E.2d at 449.
Indeed, to focus upon the number of employees "necessarily required" at a finite period of time subverts the purpose of the Act. As we held in Cotman, the policy underlying the Act favors coverage when the number of employees oscillates between coverage and exemption.
Viewing the language, "regularly in service," in this manner avoids adverse effects from unusual, temporary conditions. If applicability of the Act was influenced by transient factors, an employer's status could fluctuate between being subject to the Act and exempt from the Act. Such instability would be unsettling for both employers and employees. If 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 one or more of the employees works less than full-time, or if the number of his employees temporarily falls below three.
Cotman, 4 Va. App. at 259, 356 S.E.2d at 449 (citing 1C A. Larson, Workmen's Compensation § 52.20 (1986)).
It is undisputed that Delisle's established mode of business in the years 1998, 1999, and 2000 was to employ three or more persons to perform the work of R & T Construction. Delisle testified that R & T Construction performs building renovations at various sites including ongoing, recurrent projects at Hermitage Nursing Home, where R & T Construction "always something . . . to do." In addition to its own employees, R & T Construction uses subcontractors and independent contractors for some of
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