Company's direction, use of tools show laborer was employee

In Virginia, evidence that the employer controlled the worker's work and provided most of the tools used shows the worker was an employee, rather than an independent contractor.

Case name: Sherman & Sherman Properties v. Long, No. 1900-10-2 (Va. Ct. App. 04/12/11, unpublished).

Ruling: In an unpublished decision, the Virginia Court of Appeals held that a laborer was an employee of a company at the time he was injured and was entitled to benefits.

What it means: In Virginia, evidence that a company owner controlled the worker's work as it would any other employee doing similar jobs and that the employer provided most of the tools and materials used shows the worker was an employee, rather than an independent contractor.

Summary: A laborer periodically did basic maintenance or renovation jobs for a real estate company that rented and sold property. The laborer was injured when he fell from a ladder as he was attempting to rip pipe and drywall from a wall during renovations. He broke five ribs and several vertebrae. The company paid the laborer in cash or check and did not receive a 1099 tax form until after his workplace accident. The parties did not have a written agreement about their working relationship. The company owner checked on the laborer's work and occasionally told him to do the job differently. The owner provided most of the materials and tools for the jobs. The laborer previously worked for another business owned by the company owner's family. The Virginia Court of Appeals determined that the laborer was an employee of the company, not an independent contractor, and was entitled to benefits.

The court explained that the company controlled the laborer's job as it would any other employee doing similar jobs. Also, the laborer's work was a part of the "usual course of business" of the company. The company was engaged in renting and selling properties it owned, and renovating the properties was a part of the company's usual course of business.

The company asserted that it was not liable under workers' compensation because it employed fewer than three workers. The court disagreed, stating that employees of the other family business primarily conducted the company's business. Therefore, those employees were statutory employees of the company.

The court found the laborer was not entitled to temporary total disability benefits. The laborer's doctor did not explicitly state that he was totally disabled. The doctor also did not explain the limitations on the laborer's ability to work.

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