COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Bray 

Argued at Norfolk, Virginia 

JOYE ANNETTE COMPTON-WALDROP, DECEASED 

 OPINION BY 

v. Record No. 2385-94-1 JUDGE SAM W. COLEMAN III 

 NOVEMBER 14, 1995 

CITY OF VIRGINIA BEACH POLICE DEPARTMENT 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Michael A. Kernbach for appellant. 

 Charles B. Miller, Assistant City Attorney 

 (Office of the City Attorney, on brief), 

 for appellee. 

 In this workers' compensation appeal, the commission denied 

death benefits under Code § 65.2-512 to the statutory beneficiary 

of Joye Annette Compton-Waldrop, deceased. The commission held 

that the decedent was not an employee of the City of Virginia 

Beach Police Department as defined by Code § 65.2-101 

("Employee") of the Workers' Compensation Act (Act). The 

claimant contends that Compton-Waldrop was an employee of the 

City under the "emergency employee" doctrine because she had been 

"deputized" to assist an auxiliary police officer with an 

emergency rescue. We hold that because the City of Virginia 

Beach had passed a resolution extending its workers' compensation 

coverage to members of its auxiliary police force, when ComptonWaldrop was required to assist the auxiliary police officer in 

the rescue, she became an ad hoc member of the auxiliary police 

force and thereby became an "employee" under the Act by virtue of 
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Code § 65.2-101 ("Employee") Subsection (1)(l). Accordingly, we 

reverse the commission and remand the claim for entry of an award 

in accordance with this holding. 

 Joye Annette Compton-Waldrop worked as a restaurant manager. 

 After an evening shift, she and a co-worker, Martin Egert, drove 

several employees home. Thereafter, Compton-Waldrop and Egert 

witnessed a serious two-car collision. They stopped and began 

rendering assistance to the injured occupants of the wrecked 

vehicles. While doing so, a City of Virginia Beach Auxiliary 

Police officer, George W. Starr, arrived and took control of the 

accident scene.1

 Initially, Officer Starr ordered everyone to the side of the 

roadway. Moments later, however, he directed Egert, ComptonWaldrop, and another gentleman to assist him. He told Egert to 

direct the headlights of his car to illuminate the accident scene 

and then to take a flashlight and reflective vest to alert 

oncoming drivers of the accident. Officer Starr told ComptonWaldrop to assist him with an injured person lying in the roadway 

who appeared confused. Officer Starr said to Compton-Waldrop, 

"Ma'am come here, I need some help with this man." Compton-

 1 Code §§ 15.1-159.2(A) and 15.1-159.5 define the authority 

of auxiliary police officers. Code § 15.1-159.2(A) provides that 

an auxiliary police officer, "when called into service . . . 

shall have all the powers and authority and all the immunities of 

constables at common law." Although the record does not 

specifically address whether Officer Starr had been "called into 

service" by the City of Virginia Beach at the time, he was in 

uniform, and it appears from the record that the parties do not 

dispute that Starr was in service as an auxiliary officer. 
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Waldrop responded and went onto the traveled portion of the 

highway to assist the officer. As Egert was walking up the 

roadway, a car sped past him and struck Compton-Waldrop and 

Officer Starr, killing both. 

 Whether a person is an employee under the Workers' 

Compensation Act is a question of law, reviewable on appeal. 

Humphries v. Thomas, 244 Va. 571, 574, 422 S.E.2d 755, 756 

(1992). Because the right to recover under the Act is purely 

statutory, the legislature has exercised its authority to define 

who is and who is not an employee. Code § 65.2-101 ("Employee"); 

see Barksdale v. H.O. Engen, Inc., 218 Va. 496, 498-99, 237 

S.E.2d 794, 796 (1977). Code § 65.2-101 defines the term, 

"Employee" in subsection (1)(1) as "[e]very person, including a 

minor, in the service of another under any contract of hire or 

apprenticeship, written or implied, . . . in the usual course of 

the trade, business, occupation or profession of the employer." 

In addition to the foregoing general definition, Code § 65.2-101 

also identifies specific groups or classes of persons who are 

"employees" under the Act. Thus, an individual is covered by the 

Act only if he or she qualifies as an "employee" under 

subsections 1(b) through (q) or is in the service of another 

under a written or implied contract of hire or apprenticeship in 

the usual course of the employer's trade, business, occupation or 

profession. 

 The claimant contends that Compton-Waldrop became an 
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employee of Virginia Beach when Officer Starr required that she 

assist him in an emergency rescue of an injured motorist. In 

invoking the "emergency employee" doctrine, a principle 

recognized in a number of jurisdictions, see, e.g., State ex rel. 

Nienaber v. District Court of Ramsey County, 165 N.W. 268, 268 

(Minn. 1917), she argues that Officer Starr made Compton-Waldrop 

a deputy subject to his command and control. See also 1B Arthur 

Larson, The Law of Workmen's Compensation § 47.42(c) (1995); 

Annotation, Implied Authority of Servant to Employ Another in 

Emergency So As to Create Relation of Master and Servant, 76 

A.L.R. 963, 971(c) (1932). Consequently, because the power to 

control a person's actions is the most significant factor in 

defining a master-servant or employment relationship, Intermodal 

Servs., Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d 221, 224 

(1988), Compton-Waldrop became a deputy, and thus, an employee 

under Code § 18.2-463 and the doctrine of posse comitatus. 

 Code § 18.2-463 provides that if a person, on being required 

to assist a law enforcement officer, refuses or neglects to 

assist in any case of rescue, the person shall be guilty of a 

Class 2 misdemeanor. The statute is founded in the common law 

doctrine of posse comitatus. 

 [A]s in the days of Edward I, the citizenry 

may be called upon to enforce the justice of 

the state, not faintly and with lagging 

steps, but honestly and bravely and with 

whatever implements and facilities are 

convenient and at hand. 

Babington v. Yellow Taxi Corp., 164 N.E. 726, 727 (N.Y. 1928). 
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 This power of the sheriff, or his deputy, 

to summon aid in a proper case, in enforcing 

the criminal laws, is not open to question. 

It is of ancient origin and in the early days 

of our country's growth often was exercised. 

 More recently, with the organization in 

almost every state of state-wide police 

agencies and the development in each county 

of the various states of a larger and better 

integrated sheriff's force, the occasion for 

resorting to the posse comitatus has 

diminished greatly. Nevertheless, the power 

is there. The sheriff may make the call and 

the citizen will ignore it at his peril. 

Eaton v. Bernadillo County, 128 P.2d 738, 742 (N.M. 1942). 

 The commission made no factual finding about whether Starr 

ordered Compton-Waldrop to assist him in the emergency rescue. 

However, the evidence proves, at a minimum, that Officer Starr 

required the three bystanders to assist him in securing the 

accident scene and in attempting to rescue the injured motorist. 

 Thus, we find that Compton-Waldrop was required to assist 

Officer Starr subject to penalty under Code § 18.2-463 and, 

therefore, became an ad hoc member of the auxiliary police force. 

 Although Compton-Waldrop was legally obligated under 

Code § 18.2-463 to assist the rescue effort and was an ad hoc

member of the auxiliary police force, the fact that Officer Starr 

could control her actions does not alone render her an employee 

of Virginia Beach for purposes of the Workers' Compensation Act. 

 The purpose of the Workers' Compensation Act is to compensate an 

"employee" who is injured during and as a result of the 

employment, in an amount based upon a portion of the injured 

employee's average weekly wage. "Generally, 'a person is an 
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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.'" Intermodal, 

234 Va. at 601, 364 S.E.2d at 224 (quoting Richmond Newspapers v. 

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

person is an "employee" depends upon whether the person meets the 

definition under the Act, not whether the person satisfies a 

common-law definition of master-servant as a result of 

Code § 18.2-463 or the doctrine of posse comitatus. 

Charlottesville Music Ctr., Inc. v. McCray, 215 Va. 31, 34, 205 

S.E.2d 674, 677 (1974). A person may be an employee under the 

Act based upon an "implied" contract of hire, Code § 65.2-101 

("Employee") (1)(a); however, if no contract to pay wages for 

"hire" can be implied from the facts, a person is not an 

"employee" under Subsection (1)(a). 

 Compton-Waldrop had no expectation that she would be 

compensated for her services. "[E]xcluded from the definition of 

'employees' [are] workers who neither receive nor expect to 

receive remuneration of any kind for their services." 

Charlottesville Music 215 Va. at 35, 205 S.E.2d at 678. Thus, 

Compton-Waldrop was not an "employee" based upon an implied 

contract for hire under Subsection (1)(a) of Code § 65.2-101. If 

Compton-Waldrop was an "employee" under another provision of the 

Act, only Subsection (1)(l) is potentially applicable. 

 Code § 65.2-101 ("Employee") (1)(l) provides that for 
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purposes of the Act, "volunteer lifesaving or rescue squad 

members, . . . auxiliary or reserve police . . . shall be deemed 

employees . . . if the [local] governing body of such political 

subdivision . . . has adopted a resolution acknowledging" that 

coverage under the Act shall be extended to them. Id. (emphasis 

added). Virginia Beach has adopted such a resolution, which 

states in part: 

 Sec. 2-4. Recognition of police, fire 

companies and rescue squads as part 

of public safety program.

 In gratitude to and in recognition of the 

valuable and necessary services performed by 

police, fire companies and rescue squads and 

the individual members thereof, both 

professional and volunteer, which service the 

city, the following police agencies and 

chartered fire companies and rescue squads 

are recognized and acknowledged to be an 

integral part of the official public safety 

program of the city, and the volunteer 

members of these police, and chartered and 

nonchartered fire companies and rescue 

squads, shall be deemed employees for the 

purposes of the Virginia Worker's 

Compensation Act: 

* * * * * * * 

 Virginia Beach Auxiliary Police 

* * * * * * * 

 Virginia Beach Rescue Squad, Incorporated 

 

 Subsection (1)(l) of Code § 65.1-101 ("Employee") enables 

local governing bodies to adopt a resolution extending workers' 

compensation benefits to members of volunteer rescue squads or 

auxiliary police forces, who serve the public without 
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compensation. These persons become "employees" at the locality's 

option. Virginia Beach adopted such a resolution extending 

coverage to members of the auxiliary police force, even though 

these "employees" receive no weekly wage or have no expectation 

of remuneration. 

 We hold that when Officer Starr required Compton-Waldrop to 

assist him with the emergency rescue, thereby placing her in 

harm's way, she became an ad hoc member of the Virginia Beach 

Auxiliary Police Department, and, therefore, because Virginia 

Beach had passed a resolution extending workers' compensation 

benefits to members of the Virginia Beach Auxiliary Police, 

Compton-Waldrop was an "employee" under the Act. Accordingly, we 

remand the claim to the commission for entry of an award in 

accordance with the Act. 

 Reversed and remanded.