COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata 

Argued at Alexandria, Virginia 

MOUNT VERNON BUILDERS, INC. 

AND 

CONTINENTAL CASUALTY COMPANY 

 OPINION BY 

v. Record No. 0417-98-4 JUDGE JERE M. H. WILLIS, JR. 

 DECEMBER 1, 1998 

BRIAN ERIC ROTTY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Iris W. Redmond (Scott C. Ford; Midkiff & 

Hiner, P.C., on brief), for appellants. 

 Christopher M. Day, Assistant Attorney 

General (Mark L. Earley, Attorney General), 

for Uninsured Employer's Fund. 

 John B. Delaney (Delaney, McCarthy, Colton & 

Botzin, P.C., on brief), for appellee. 

 On appeal from a decision of the Workers' Compensation 

Commission awarding benefits to Brian Rotty, Mount Vernon 

Builders, Inc. (Mount Vernon) contends that the commission erred: 

 (1) in holding that Rotty was not an independent contractor; (2) 

in holding that Mount Vernon was Rotty's statutory employer; and 

(3) in calculating Rotty's "average weekly wage" to be $450. We 

affirm the commission's decision on the first two issues. On the 

issue of Rotty's "average weekly wage," we reverse and remand to 

the commission for recalculation. 

 I. 

 Under familiar principles, we view the evidence in the light 

most favorable to Rotty, the party prevailing below. The 
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commission's findings of fact will be upheld on appeal if they 

are supported by credible evidence. James v. Capitol Steel 

Construction Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488-89 

(1989). 

 Mount Vernon, a general contractor, was hired to repair the 

porch and roof of a residence. Mount Vernon contracted to pay 

Hector Roque $1,800 to repair the roof. The job required both 

shingle and flat roof work. Roque contracted to pay Rotty $450 

to perform the flat roof work. Rotty and Roque worked together 

during the week at Burgundy Roofing, where Rotty had been a 

roofer, off and on, for ten years. 

 On November 2, 1996, Roque drove Rotty to the work site. 

Rotty brought his personal roofing tools. Roque rented an air 

compressor. Roque, Rotty and two other laborers began work on 

the shingle roof by pulling off the old shingles. Rotty helped 

Roque prepare the roof for new shingles by "prepping" the plywood 

and checking for loose nails. Roque then told Rotty to begin 

work on the flat roof. As Rotty walked onto the flat roof, 

rotten plywood collapsed underneath him and he fell two and 

one-half stories onto concrete, fracturing his spine, pelvis and 

wrist. The parties stipulated the cause and nature of his 

injuries. 

 Rotty filed for temporary total disability benefits. The 

deputy commissioner held that Rotty was an independent contractor 

and thus did not qualify for benefits. She held further that 
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Mount Vernon was not Rotty's statutory employer, because Mount 

Vernon and Roque were not in the same trade or business. Because 

she made no award, the deputy commissioner did not calculate 

Rotty's average weekly wage. 

 On review, the full commission held that Rotty was Roque's 

employee, that Mount Vernon was Rotty's statutory employer, and 

that Rotty's average weekly wage was $450. 

 II. 

 Mount Vernon contends that Rotty was an independent 

contractor and not Roque's employee. 

 "The elements of an employment relationship are: (1) 

selection and engagement of the employee, (2) payment of wages, 

(3) power of dismissal, and (4) power of control of the 

employee's action. The most important of these is the element of 

control." Behrensen v. Whitaker, 10 Va. App. 364, 366, 392 

S.E.2d 508, 509 (1990) (citation omitted). The first three 

elements "are not the ultimate facts, but only those more or less 

useful in determining whose is the work and where is the power of 

control." Stover v. Ratliff, 221 Va. 509, 512, 272 S.E.2d 40, 42 

(1980). Thus, "[o]ne is an employee of another if the person for 

whom he or she works has the power to direct the means and 

methods by which the work is done." Craddock Moving & Storage 

Co. v. Settles, 16 Va. App. 1, 4, 427 S.E.2d 428, 430 (1993) 

(citation omitted), aff'd, 247 Va. 165, 440 S.E.2d 613 (1994). 

 Credible evidence supports the commission's finding that 
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Rotty was Roque's employee. Roque hired Rotty for the job, 

transported Rotty to the site, and provided tools needed for the 

job. Roque had the "power to direct the means and methods by 

which [Rotty did] the work." Intermodal Services, Inc. v. Smith, 

234 Va. 596, 601, 364 S.E.2d 221, 224 (1988). All of his work 

prior to his injury was work performed by Rotty under Roque's 

supervision. Roque controlled Rotty's means and methods of work. 

See Uninsured Employer's Fund v. Clark, 26 Va. App. 277, 283, 

494 S.E.2d 474, 477 (1998). 

 III. 

 Mount Vernon next contends that the commission erred in 

holding that Rotty was Mount Vernon's statutory employee. It 

argues that Roque's work was not part of its "trade, business or 

occupation." Code § 65.2-302. 

 Under Code § 65.2-302, two tests may be used to determine 

whether a general contractor is the statutory employer of an 

injured worker. See F. Richard Wilton, Jr., Inc. v. Gibson, 22 

Va. App. 606, 610, 471 S.E.2d 832, 834 (1996). Using the 

"subcontracted fraction test," see Code § 65.2-302(B), the full 

commission held: 

 Mount Vernon was hired to repair and 

reshingle the flat roof, reshingle the rest 

of the roof and build a new front porch. 

Replacing the roof was a 

subcontracted-fraction of the main contract. 

 Mount Vernon was the general contractor who 

engaged [Roque] to perform that fraction of 

the contract. Therefore, it is the statutory 

employer of [Rotty]. 
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The evidence supports this determination. Mount Vernon is a 

general contractor. Its trade, business or occupation is general 

home repair, which includes roof repair. It entered into a 

single contract to repair the porch and roof of a residence. 

Thus, Rotty, working under Roque's subcontract, was engaged in 

Mount Vernon's trade or business. Wilton, 22 Va. App. at 610-11, 

471 S.E.2d at 834-35. 

 IV. 

 Finally, Mount Vernon contends that the commission erred in 

calculating Rotty's "average weekly wage." We agree. "Average 

weekly wage" means 

 the earnings of the injured employee in the 

employment in which he was working at the 

time of the injury during the period of 

fifty-two weeks immediately preceding the 

date of the injury, divided by fifty-two 

. . . . When, by reason of a shortness of 

time during which the employee has been in 

the employment of his employer or the casual 

nature or terms of his employment, it is 

impractical to compute the average weekly 

wages as above defined, regard shall be had 

to the average weekly amount which during the 

fifty-two weeks previous to the injury was 

being earned by a person of the same grade 

and character employed in the same class of 

employment in the same locality or community. 

Code § 65.2-101(1)(a). In the interests of fairness, the 

calculation should "most nearly approximate the amount which the 

injured employee would be earning were it not for the injury." 

Code § 65.2-101(1)(b). Here, the evidence is insufficient to 

support the commission's calculation of Rotty's wage. 

 Rotty was to be paid $450 for the Mount Vernon job. The 
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full commission set that amount as Rotty's average weekly wage, 

stating only that "[t]he evidence showed the claimant was to 

receive $450 for two day's worth of work which is his average 

weekly wage." 

 Rotty had a full time job as a roofer with Burgundy Roofing. 

 He testified that he was paid $11 an hour and worked between 

twenty and forty hours a week. Beverly Ange, Burgundy's owner, 

testified that Rotty's average weekly wage over the fifty-two 

weeks preceding his injury was $230.93. 

 The Mount Vernon job was the only "side job" worked by 

Rotty. No evidence suggested that he intended to undertake other 

"side jobs" or that other "side jobs" were available. 

 Because the commission erroneously calculated Rotty's 

average weekly wage, we reverse the commission's decision on this 

issue and remand for a redetermination of the amount which he 

would be earning were it not for the injury. 

 The decision of the commission is affirmed on the issues of 

liability. Its calculation of the award is reversed, and this 

case is remanded for a determination of Rotty's "average weekly 

wage" and recalculation of his award. 

 Affirmed in part,

reversed and

remanded in part.