IN THE WORKERS COMPENSATION COMMISSION
FRANCISCO GABRIEL RAMIREZ-GUTIERREZ, Claimant
Opinion by DUDLEY
v. VWC File No. 227-72-99
CLEAN SCAPE, INC., Employer
- NO RECORD OF INSURANCE -
Daniel P. Barrera, Esquire
The Chandler Law Group
1650 King Street
Alexandria, VA 22314
for the Claimant.
Arturo H. Hernandez, Esquire
Arturo H. Hernandez, P.C.
2915 Hunter Mill Road
Vienna, VA 22124-1716
for the Employer.
Douglas A. Seymour, Esquire
Siciliano, Ellis, Dyer and Boccarosse, P.L.C.
10521 Judicial Drive
Fairfax, VA 22030
for the Uninsured Employers’ Fund.
REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and Commissioner Dudley at Richmond, Virginia.
This case is before the Commission on the employer’s request for Review of the Deputy Commissioner’s November 9, 2006, Opinion. The employer assigns error to the findings that the claimant sustained a compensable injury by accident and that it had more than three employees and failed to obtain workers’ compensation insurance. The Uninsured Employers’ Fund asserts that the Deputy Commissioner erred in finding ongoing disability. Finding no error, we affirm.
The facts of this case are not in dispute. The Deputy Commissioner accurately summarized the evidence, and we will repeat it only as necessary in this Opinion. Initially, we note that all parties agree that the claimant is an undocumented alien.
The evidence shows that on January 12, 2006, the claimant was working at a private residence on an incomplete deck. He stepped on a board that was not attached, and it swung up and hit him in the back of his head. The claimant fell from the deck onto the concrete below, sustaining injuries to his head, shoulder, chest, hip, and hand. He was taken to the emergency room, and received stitches and initial treatment for his other injuries. The claimant was referred to Dr. Christopher L. Hess, orthopedic surgeon, for his hand injury.
On March 9, 2006, Dr. Hess performed surgery on the claimant, and recommended another surgery, which has not been performed. The doctor last treated him on September 29, 2006, and he has not worked since January 12, 2006. The claimant admitted at the Hearing that he was physically capable of some types of work, but that he was an undocumented alien without a vehicle or driver’s license.
The claimant testified that he worked for the employer in 2003, and then again in 2005, and that Gerardo Gutierrez-Oriza, the owner, agreed to pay him $10 per hour to work 50 hours per week. He wore a red t-shirt like the other employees wore, which bore the company name, and Gutierrez-Oriza provided the tools and sent him to the worksites. The claimant listed the following workers: Gerardo Gutierrez-Oriza, Carlos Dolesky (his supervisor), Angela Gutierrez, Gregorio Mesa, Florencio Romero, Lilan Matamoros, and Isabel Avellaneda. The claimant also stated that the company provided cleaning services to an elementary school and used approximately ten other employees for that location.
Angela Gutierrez, secretary, testified that the employer had less than three full-time employees, and that Dolesky was an independent contractor. Gutierrez stated that most of the other individuals identified by the claimant were either day laborers that would come and go, or part-time employees. She said that she and her husband were officers of the corporation, and that this information was consistent with the Answers to Interrogatories and information from the Insurance Department of the Virginia Workers’ Compensation Commission printed from the State Corporation Commission database.
After careful Review, we find no error and affirm the Deputy Commissioner’s decision. The evidence is uncontroverted that the claimant was working and performing the tasks of his employment at the time of his injury.
To recover benefits, the claimant must establish by a preponderance of the evidence that he suffered an injury by accident arising out of and in the course of [his] employment, Code 65.2-101, and that the conditions of the workplace . . . caused the injury. Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).
Falls Church Const. Corp. v. Valle, 21 Va. App. 351, 359-60, 464 S.E.2d 517, 522 (1995). Accordingly, we find that on January 12, 2006, the claimant sustained a compensable injury by accident to his head, shoulder, chest, hip, and hand.
Next, we agree that the employer clearly had three or more employees, and is subject to the provisions of the Virginia Workers’ Compensation Act (Act).
[W]hen an employer defends a claim on the ground that it is not subject to the provisions of the Act, the commission must make two distinct inquiries. First, the commission must determine whether the employer carried its burden of proving, by a preponderance of the evidence, that, at the time of the alleged incident, it had regularly in service fewer than three employees in Virginia. Second, if the employer sustains this burden of proof, the commission must then determine whether, at the time of the alleged incident, the employer’s established mode of performing business regularly required three or more employees. If so, the employer will be deemed subject to the provisions of the Act even though it had fewer than three employees on the date of the alleged incident.
Perry v. Delisle, 46 Va. App. 57, 65, 615 S.E.2d 492, 496 (2005).
Here, the employer failed the first prong of the test. Corporate officers are employees, whether they are paid or not. The record shows that, in addition to Gerardo Gutierrez-Oriza and Angela Gutierrez, Carl Pfeifer and Janaan Manternach were also listed as officers. The claimant was an employee, as well as several of his co-workers and the workers employed to clean the elementary school. The employer failed to prove that these individuals were not its employees, and it also failed to obtain workers’ compensation insurance as required by Virginia Code 65.2-801, Code 65.2-802, and 65.2-804.
Virginia Code 65.2-805 provides that if any employer fails to comply with the provisions of Code 65.2-800 or 65.2-804, it shall be assessed a civil penalty of not less than $500, nor more than $5,000. The Deputy Commissioner assessed a penalty of $5,000 for the employer’s failure to comply, and we find that to be a reasonable penalty.
Finally, a review of the available medical evidence shows that Dr. Hess provided the claimant with an out-of-work slip on September 29, 2006. The doctor recommended a second surgery and stated that he was currently unable to work. There is no further medical information in the file. The claimant has been unable to obtain further treatment due to a lack of funds and other health insurance. We agree that disability does not continue indefinitely without ongoing medical treatment.
There is no presumption in the law that once a disability has been established, a claimant will be assumed to remain disabled for an indefinite period of time. To the contrary, a party seeking compensation bears the burden of proving his disability and the periods of that disability. Marshall Erdman & Assocs., Inc. v. Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145, 149 (1997).
Uninsured Employer’s Fund v. Clark, 26 Va. App. 277, 285-86, 494 S.E.2d 474, 478 (1998). However, in the instant case, the treating physician has recommended surgery, which due to litigation, has not been approved. The claimant may think that he can perform some types of work, but there is no medical support for his belief. Without medical evidence that he can perform the work that he thinks he can perform, we decline to agree that he can work. Further, we decline to penalize the claimant for his inability to obtain surgery that may place him on the road to a return to work.
Accordingly, the Opinion of the Deputy Commissioner is AFFIRMED.
Interest is payable on the award pursuant to Virginia Code 65.2-707.
The attorney’s fee to be deducted from accrued compensation and paid to Daniel P. Barrera, Esquire, for legal services rendered the claimant, is hereby increased to a total of $2,500.
This matter is removed from the Review docket.
This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days of receipt.
cc: Mr. Francisco Gabriel Ramirez-Gutierrez
7212 Normandy Lane
Falls Church, VA 22042
Clean Scape, Inc.
7535 Lisle Avenue
Falls Church, VA 22043
CMI Octagon, Inc.
P.O. Box 85631
Richmond, VA 23285