COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

JESSE E. BOWLING, JR. 

v. Record No. 1540-96-3 MEMORANDUM OPINION*

 PER CURIAM 

P & G OIL CORPORATION t/a DECEMBER 10, 1996 

 P & G TRUCKING CORPORATION AND 

 THE UNINSURED EMPLOYER'S FUND 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (James B. Feinman; Esther S. McGuinn, on 

brief), for appellant. 

 (J. Gorman Rosenberger, Jr.; Wilson, Garbee & 

Rosenberger, on brief), for appellee P & G 

Oil Corporation t/a P & G Trucking 

Corporation. 

 (James S. Gilmore, III, Attorney General; 

Robert L. Walker, Assistant Attorney General; 

John J. Beall, Jr., Assistant Attorney 

General, on brief), for appellee The 

Uninsured Employer's Fund. 

 Jesse E. Bowling, Jr. ("claimant") contends that the 

Workers' Compensation Commission ("commission") erred in denying 

him compensation benefits on the ground that he was an 

independent contractor, rather than an employee of P & G Oil 

Corporation ("P & G"), at the time of his industrial accident. 

Upon reviewing the record and the briefs of the parties, we 

conclude that this appeal is without merit. Accordingly, we 

summarily affirm the commission's decision. Rule 5A:27. 

 "What constitutes an employee is a question of law; but 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

whether the facts bring a person within the law's designation, is 

usually a question of fact." Baker v. Nussman, 152 Va. 293, 298, 

147 S.E. 246, 247 (1929). Generally, an individual "'is an 

employee if he works for wages or a salary and the person who 

hires him reserves the power to fire him and the power to 

exercise control over the work to be performed. The power of 

control is the most significant indicium of the employment 

relationship.'" Behrensen v. Whitaker, 10 Va. App. 364, 367, 392 

S.E.2d 508, 509-10 (1990) (quoting Richmond Newspapers, Inc. v. 

Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843 (1982)). See also

Stover v. Ratliff, 221 Va. 509, 512, 272 S.E.2d 40, 42 (1980). 

The employer/employee relationship exists if the power to control 

includes not only the result to be accomplished, but also the 

means and methods by which the result is to be accomplished. 

Behrensen, 10 Va. App. at 367, 392 S.E.2d at 510. Unless we can 

say as a matter of law that claimant's evidence sustained his 

burden of proving that he worked for P & G as an employee rather 

than an independent contractor, the commission's findings are 

binding and conclusive upon us. Tomko v. Michael's Plastering 

Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 In holding that an employee/employer relationship did not 

exist between claimant and P & G, the commission found as 

follows: 

 Even without considering the Contract 

Agreement itself, we agree with the Deputy 

Commissioner's conclusion that the claimant 

was an independent contractor. . . . The 

Deputy Commissioner found the defendants 
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credible in their testimony regarding the 

claimant's autonomy in selecting his own 

loads and determining his routes and 

schedule. While we are not bound by these 

credibility determinations, we will not 

arbitrarily reject them. The evidence 

reflects that the claimant was given a list 

of brokers whom he was to contact to obtain 

loads to haul. These brokers advanced 

claimant expenses for the trip. The claimant 

reported daily on his whereabouts to the 

defendant, who paid the claimant twenty-five 

percent of the proceeds. The corporation 

owned and maintained the truck, as well as 

the ICC license. However, the claimant was 

free to turn down loads, and chose his own 

routes. These factual findings point towards 

an independent contractor relationship. 

 In its role as fact finder, the commission accepted the 

testimony of P & G's witnesses and rejected claimant's testimony 

with regard to his employment status. It is well settled that 

credibility determinations are within the fact finder's exclusive 

purview. Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 

381, 363 S.E.2d 433, 437 (1987). The testimony of P & G's 

witnesses supports the commission's finding that claimant was not 

an employee of P & G under the Workers' Compensation Act ("the 

Act"). Accordingly, we cannot say as a matter of law that 

claimant's evidence sustained his burden of proof. 

 We also find no merit in claimant's argument that even if 

the commission did not err in finding that he was an independent 

contractor, it erred in not holding P & G responsible to him for 

workers' compensation benefits pursuant to Code § 65.2-302. Code 

§ 65.2-302(A)(1) does not provide workers' compensation benefits 

to independent contractors who are not employees under the Act. 
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Rather, Code § 65.2-302(A)(1) renders an owner liable for 

workers' compensation benefits to workers employed by a 

subcontractor, where the owner has contracted with the 

subcontractor for the subcontractor to perform work which is a 

part of the owner's trade, business, or occupation. Code 

§ 65.2-302 has no applicability to the facts of this case. 

 For these reasons, we affirm the commission's decision. 

 Affirmed.