Spanish
VIRGINIA: 04/27/2005
IN THE WORKERS’ COMPENSATION COMMISSION
MARIA T. BARBA, Claimant
Opinion by the
Commission
v. VWC File No. 213-10-55
TERESA ENRIQUEZ/CLEAN MASTER TOTAL BLDG., Employer
- NO RECORD OF INSURANCE -
KENNETH R. BRADY T/A JANIPRO, Employer
- NO RECORD OF INSURANCE -
Daniel P. Barrera, Esquire
1650 King Street, # 505
Alexandria, VA 22314
For the Claimant
(Copy sent Priority Mail)
Michael Hadeed, Jr., Esquire
5501 Backlick Road, Suite 220
Springfield, VA 22151
For Teresa Enriquez/Clean Master Total Bldg.
(Copy sent Priority Mail)
Edward H. Grove, Esquire
Brault, Palmer, Grove, White & Steinhilber, LLP
P.O. Box 1010
Fairfax, VA 22038-1010
For Kenneth R. Brady T/A Janipro
(Copy sent Priority Mail)
Jimese Pendergraft Sherrill, Esquire
10521 Judicial Drive, Suite 300
Fairfax, VA 22030-3109
For the Uninsured Employer’s Fund
(Copy sent Priority Mail)
REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and Commissioner Dudley at Richmond, Virginia.
This case is before the Commission at the request of Kenneth R. Brady T/A Janipro (”Brady”) for Review of the Deputy Commissioner’s assessment of a fine associated with Brady’s failure to obtain workers’ compensation insurance. We AFFIRM as modified.
On November 5, 2003, the Commission issued a show cause order directing Brady to appear before the Commission and show why he should not be fined in accordance with Code 65.2-805 for failing to have workers’ compensation insurance. The Deputy Commissioner conducted two hearings in connection with the Show Cause Order and the underlying claim of the claimant, Ms. Barba.
The evidence is summarized here only to the extent necessary to address the issue considered on Review.
Brady testified that he is self-employed and operates a business cleaning offices. He explained that he has approximately 18 clients. He also indicated that he has a month-to-month contract with Gold’s Gym to clean two of that company’s gym facilities.
Brady denied performing any of the actual cleaning of his client’s offices or facilities. Instead, he explained that he subcontracts with Teresa Enriquez/Clean Master to perform the actual work of cleaning.
Brady indicated that he has liability insurance “just for myself.” He denied ever having workers’ compensation insurance. He also indicated that he was “pretty sure” Ms. Enriquez never showed him proof that she had workers’ compensation insurance but that she did provide him with a certificate showing that she had liability insurance. In addition, Brady admitted that he never required Ms. Enriquez to provide him with proof of workers’ compensation insurance.
Brady acknowledged that he was not aware of the number of employees Ms. Enriquez had in September of 2002 when the claimant, Ms. Barba, suffered a workplace injury.
Teresa Enriquez testified that her cleaning business performed cleaning services for Brady at Gold’s Gym as a subcontractor. She denied having any actual employees and indicated that she considered Ms. Barba to be an independent contractor.1
Brady argues on Review that the $5,000 fine assessed against him by the Deputy Commissioner be reversed, suspended with terms, or modified substantially because there is no evidence of any malfeasance on the part of Brady. Specifically, he contends that, had he asked Ms. Enriquez regarding her number of employees, he would have been told his subcontractor had fewer than the number of employees requiring workers’ compensation coverage. We find no error in the Deputy Commissioner’s assessment of a penalty against Brady.
Code 65.2-800 provides that every employer subject to the Act shall insure payment of compensation. Code 65.2-804 provides that every employer subject to the Act shall file with the Virginia Workers’ Compensation Commission evidence of proof of insurance. Code 65.2-805 provides that if such an employer fails to comply with the provisions of Code 65.2-804, Code of Virginia, he shall be punished by a fine of not less than $500.00 nor more than $5,000.00.
As the Court of Appeals explained in Last v. Virginia State Bd. of Medicine, 14 Va. App. 906, 421 S.E.2d 201 (1992):
In its ordinary signification, “shall” is a word of command, and is the language of command, and is the ordinary, usual, and natural word used in connection with a mandate. In this sense “shall” is inconsistent with, and excludes, the idea of discretion, and operates to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved … unless an intent to the contrary appears; but the context ought to be very strongly persuasive before it is softened into a mere permission.
Id. at 911, 421 S.E.2d at 205 (quoting Andrews v. Sheperd, 201 Va. 412, 414, 111 S.E.2d 279, 281 (1959)). Thus, although there is some discretion regarding the amount of the fine to be imposed, a fine’s issuance is mandatory when, as here, an “employer” under the Act fails to obtain workers’ compensation coverage. See Rosas v. African Art Gallery, VWC File No. 186-06-18 (1998).
Given the facts of this case, we also agree with the Deputy Commissioner’s conclusion that a substantial fine should be imposed against Brady. The record reflects that Brady operated a cleaning business by relying upon the employees of a subcontractor. Brady candidly admitted at the hearing that he never attempted to ascertain the number of Ms. Enriquez’s employees. Nor did he require her to provide proof of workers’ compensation insurance.
Because his subcontractor was performing the functions of his business, we conclude that he had an obligation of ascertaining the number of employees who were actually performing the work of his cleaning business so as to determine if he was bound by the requirements of the Act as an employer. As correctly noted by the Deputy Commissioner, Code 65.2-302, the statutory employer provision, is intended to prevent employers from escaping workers’ compensation liability and the obligation of obtaining workers’ compensation coverage simply by subcontracting away work which is part of the statutory employer’s trade, business and obligation. From our Review of the record, we conclude that this is precisely what Brady attempted to do.
Nevertheless, we conclude that the amount of the penalty assessed by the Deputy Commissioner was somewhat excessive given the subcontractor’s belief that the claimant was an independent contractor. Under the circumstances, we lower the fine to $3,000 on Review.
For these reasons, the June 7, 2004, Opinion of the Deputy Commissioner assessing a fine against Kenneth R. Brady T/A Janipro is AFFIRMED as modified and the fine assessed against Kenneth R. Brady T/A Janipro is hereby lowered to $3,000.
This matter is hereby removed from the Review docket.
APPEAL
This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days of receipt.
c: Maria T. Barba
Teresa Enriquez/Clean Master Total Bldg.
10656 Myrtle Oak Ct.
Burke, VA 22015
Kenneth R. Brady
T/A Janipro
6208 Knollview Place
Centerville, VA 21020
Compmanagement, Inc.
P. O. Box 85631
Richmond, VA 23285
1 The Deputy Commissioner concluded that Ms. Enriquez regularly employed three or more employees in the Commonwealth and that Ms. Barba was Ms. Enriquez’s employee rather than an independent contractor. No party has requested Review of these findings and, therefore, they are not addressed in this Opinion.