VIRGINIA:         03/30/2000

IN THE WORKERS’ COMPENSATION COMMISSION

Published at 79 O.W.C. 24

RAFAEL FLORES, Claimant

Opinion by the

• • • • • • • • COMMISSION

v.                                         V.W.C. File No. 193-57-99

D B & A GENERAL CONTRACTORS, INC., Employer

MONTGOMERY MUTUAL INSURANCE COMPANY, Insurer

Daniel P. Barrera, Esquire

for the Claimant.

Lisa A. Cay, Esquire

for the Defendants.

REVIEW on the record before Commissioner Diamond, Commissioner Dudley, and Deputy Commissioner Dely at Richmond, Virginia.

Flores requests review of the October 27, 1999 Opinion of the Deputy Commissioner, who concluded that the Commission had no jurisdiction over this foreign injury claim.  We Reverse.

Flores alleged that he was employed by D B & A General Contractor, and that he injured his right hand and fingers while attempting to unclog a lawnmower on September 27, 1998.  D B & A General Contractor stipulated that there was an injury by accident on that day, but the employer denied that Flores was an employee of D B & A, or that the claimant was working for the employer at the time of the accident, or that the claimant’s alleged period of disability was supported by the evidence.  It also disputed that the claimant was contemporaneously employed in similar employment, which would serve to augment the claimant’s statutory average weekly wage.  The employer also denied that the Commission had jurisdiction over the accident, which occurred in the District of Columbia.

The Deputy Commissioner addressed only the issue of jurisdiction in her Opinion, and we limit our review to that issue.  In other words, we do not at this stage in the proceedings decide whether or not the claimant was an employee in fact, or whether he was an employee at the time of the accident, or whether he was an independent contractor.  We decide only that the Commission has subject matter jurisdiction to consider such facts.

Va. Code Ann. 65.2-508 provides, in pertinent part, that,

A. When an accident happens while the employee is employed elsewhere than in this Commonwealth which would entitle him or his dependents to compensation if it had happened in this Commonwealth, the employee or his dependents shall be entitled to compensation, if:

1. The Contract of employment was made in this Commonwealth; and

2. The employer’s place of business is in this Commonwealth; and provided the contract of employment was not expressly for service exclusively outside the Commonwealth.

In order to establish our jurisdiction, the claimant has the burden to prove that he satisfies all these factual prerequisites.

The claimant had worked for D B & A General Contractors at an earlier time, and he was working in early 1998 for another employer.  The uncontradicted evidence establishes that Carl Bernstein, the corporate president of D B & A, telephoned the claimant at his [the claimant's] home in Alexandria, Virginia in January or February 1998 to request that Flores return to work with D B & A on weekends.  The claimant accepted.

Flores testified that he understood that he was to work for D B & A at various locations in Virginia, and also in the District of Columbia.  Bernstein testified that the claimant worked for D B & A only in Virginia, and that the work Flores performed in the District was work performed for him [Bernstein] personally.  The claimant suffered his injury while performing work for Bernstein in the District.  Flores testified that approximately 80% of his work was performed in Virginia, and the rest in the District, while Bernstein estimated that 70 – 80% of the work was performed in the District.

The Deputy Commissioner held that the Commission lacked jurisdiction for this foreign injury, because “the majority of the work done by the claimant was in D.C.”  This implicitly acknowledged the undisputed fact, even if the testimony of the employer was accepted without question, and even if the documentary evidence produced by the employer pursuant to discovery was incomplete, that at least some of the work was to be performed in Virginia.  The pertinent language of Code 65.2-508(A)(2) clearly instructs that jurisdiction lies if “the contract of employment was not expressly for service exclusively outside of the Commonwealth.”  In other words, where the employee is assigned to perform any work in the Commonwealth, however deminimis, we have jurisdiction.  Here, the employer himself testified that the contract of employment was for work to be performed in Virginia, so we certainly have jurisdiction.  Jurisdiction would still lie if the employee is assigned work outside Virginia, pursuant to his contract of employment.  The Deputy on Remand will have to make that determination.

We note here that the Deputy Commissioner in her Opinion did not address the other elements of Code 65.2-508.  In the interests of judicial economy, and because the evidence presented at the evidentiary hearing was clearly dispositive as to these questions, we will rule on them on Review.

We first consider whether the contract of employment was made in Virginia:

Under familiar principles of conflicts law, when the acts “which constitute offer and acceptance are scattered over more than one state . . . [t]he authorities are reasonably clear that, in this event, the contract is made at the same time and place “where the last act necessary to the completion of the contract was done – that is, where the contract first creates a legal obligation.”  American Conflicts Law, Robert A. Leflar, et al., @ 145, at 408-09 (4th ed. 1986) (citing 1 A. Corbin, Contracts @ 55 et seq. (1963); 1 S. Williston, Contracts @ 97 (W. Jaeger 3d ed. 1957); Restatement of Contracts @ 74 (1932)).

Tummino v. Fleet Transit, Inc., VWC File No. 186-97-73 (April 23, 1999).  An oral contract of hire made in Virginia is effective for the purposes of Code 65.2-508.  Whitley v. Cardinal Freight Carriers, Inc.,  VWC File No. 166-03-27 (November 9, 1994), citing Locastro v. Power Specialists, Inc., VWC File No. 136-32-58 (September 6, 1989).  Here, where the employer effectively came to Flores’ home, in this case by telephone, and made a job offer, the acceptance by Flores at that time constituted the completion of the contract of employment.  Thus, we find that the early 1998 contract of employment with Flores was made in the Commonwealth.

No ore tenus evidence was presented to establish that the employer had a place of business in Virginia.  However, the claimant filed W-2 Tax Forms, time logs, and cancelled checks from the employer as evidentiary exhibits, which established that D B & A had places of business in McLean and in Manassas Park, Virginia.  Even if these were established for bookkeeping and administrative purposes only, it sufficiently satisfies the requirements of Code 65.2-508.  See CLC Construction, Inc. v. Lopez, 20 Va. App. 258, 456 S.E.2d 155 (1995).

Accordingly, upon consideration of these facts, we REVERSE the October 27, 1999 Opinion of the Deputy Commissioner.  We hold that the Commission does have jurisdiction under Va. Code Ann. 65.2-508 to determine whether Flores was an employee of D B & A General Contractors at the time of his accident on September 27, 1998, and to decide to what extent he is entitled to benefits under the Virginia Workers’ Compensation Act.  This case is therefore REMANDED to the Deputy Commissioner for an expedited opinion on the merits of this claim and all other questions that remain undecided.¹

This case is REMOVED from the Review Docket.

¹ This is an interlocutory opinion only, since we have decided only the jurisdictional issue and have Remanded the case for a determination on the merits of Flores’ Claim For Benefits.  See Uninsured Employer’s Fund v. Harper, 26 Va. App. 522, 495 S.E.2d 540 (1998).

VIRGINIA     01/20/00

IN THE WORKERS’ COMPENSATION COMMISSION

JUAN A.  HERNANDEZ,  Claimant

Opinion by TARR

Commissioner

v.                                                                                                                            Claim No.   194-63-68

C D CARPENTRY, INC.,  Employer

CINCINNATI CASUALTY COMPANY,  Insurer

Daniel P. Barrera, Esquire

for the claimant

William E. Glover, Esquire

for the defendants

REVIEW on the record before Commissioner Tarr, Commissioner Diamond and Commissioner Dudley at Richmond, Virginia.

The employer requests Review of the Deputy Commissioner’s September 3, 1999, Penalty Order assessing a 20 percent penalty pursuant to Code 65.2-524, for compensation not paid within two weeks after it became due commencing on June 9, 1999.  The employer argues that because the claimant returned to work at his pre-injury average weekly wage on June 10, 1999, it was entitled to cease payments under the claimant’s open Award.  We VACATE.

On February 23, 1999, the claimant filed an application for benefits alleging an injury by accident on January 28, 1999, and seeking continuing temporary total disability benefits and medical benefits.  On March 31, 1999, the parties submitted a Memorandum of Agreement stating that the claimant was entitled to continuing temporary total disability benefits commencing January 28, 1999, based on a pre-injury average weekly wage of $524.71.  On August 6, 1999, the Commission entered an Award Order based on the March 31, 1999, Memorandum of Agreement, for payment of continuing temporary total disability compensation and medical benefits beginning January 28, 1999.

The employer alleges that in the meantime, on June 10, 1999, the claimant returned to work at a wage equal to or greater than his average weekly wage.  The employer supports this claim with a September 22, 1999, affidavit from its office administrator.  The employer filed an application for a change in condition on September 24, 1999, alleging a return to work on June 10, 1999.  That application is still pending.

In a letter filed August 23, 1999, counsel for the claimant advised the Commission that despite the August 6, 1999, Award Order, “the carrier has not paid the claimant any compensation since approximately June 9, 1999.”  Claimant’s counsel requested an assessment of a 20 percent penalty on the unpaid compensation.  By Order of September 3, 1999, the Deputy Commissioner assessed a 20 percent penalty pursuant to Code 65.2-524 on all compensation more than two weeks in arrears.

In its written statement, the employer argues that during the period between June 9, 1999, and June 24, 1999, it attempted to obtain the claimant’s signature on an Agreed Statement of Fact terminating the existing open Award based on the claimant’s return to his pre-injury work.  The claimant did not sign the agreement.  The claimant’s counsel then informed the employer that the claimant was again temporarily totally disabled due to his work injury.  The employer blames its non-payment of benefits from June 10, 1999, to June 24, 1999, on the claimant’s failure to execute this agreement.¹

Code 65.2-524 provides that: “If any payment is not paid within two weeks after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 percent thereof.”  The language of Code 65.2-524 is mandatory, and its application has been strictly applied.  The legislature has clearly and unambiguously provided for a 20 percent penalty when payment of benefits is not timely made, regardless of the fact that there may be a good excuse for the late payment.  See Sanderson v. Corrections Adult Services, VWC File No. 164-78-40 (May 30, 1996).

There are three ways to terminate an award:  (1) by the claimant’s execution of an Agreed Statement of Fact; (2) by the claimant’s execution of a Supplemental Memorandum of Agreement; or (3) by the employer’s filing of an appropriate application to terminate benefits.  Smith v. Earl Haines, Inc., 62 OIC 422 (1983).   Despite the employer’s alleged efforts, the claimant failed to execute the Agreed Statement of Fact.  Therefore, the employer needed to file an application to terminate benefits.  It did so, on September 24, 1999.  Commission Rule 1.4 C 1 requires payment to date of return to work.

The employer was not required to make any payments after June 9, 1999, because of the pending Application for Hearing.  If the Application is granted, then no further benefits or penalties are owed.

The employer voluntarily reinstated temporary total benefits on June 24 so the disputed period is June 10 to June 24, 1999.  It appears that this issue might be resolved without the necessity of either an evidentiary or an on the record hearing.

The Deputy Commissioner’s September 3, 1999,  Penalty Order is VACATED.  This case is referred to the Commission’s mediation section.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within

thirty days from receipt of this Opinion.

¹ The employer also concedes that the claimant is entitled to temporary total disability benefits from June 24, 1999.  The employer has paid and continues to pay these benefits since September 1999.