COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

JON W. JUNGERS t/a 

 RICHMOND MODULAR 

 MEMORANDUM OPINION*

v. Record No. 1207-98-2 PER CURIAM 

 OCTOBER 27, 1998 

NORMAN REED POWERS 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Phyllis L. Bean, on brief), for appellant. 

 (Ruth E. Nathanson; Maloney, Huennekens, 

Parks, Gecker & Parsons, on brief), for 

appellee. 

 Jon W. Jungers t/a Richmond Modular ("Richmond Modular") 

contends that the Workers' Compensation Commission ("commission") 

erred in finding that (1) Norman Reed Powers ("claimant") was an 

"employee" of Richmond Modular; (2) employer failed to prove that 

claimant's willful failure or refusal to use a safety appliance 

barred his claim pursuant to Code § 65.2-306(A)(4); and (3) 

Richmond Modular was an "employer" subject to a fine under the 

Workers' Compensation Act ("the Act") for failing to carry 

workers' compensation insurance. 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. See Rule 5A:27. 

 

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

designated for publication. 
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I. and III. 

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

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). On appellate review, the findings of 

fact made by the commission will be upheld when supported by 

credible evidence. See James v. Capitol Steel Constr. Co., 8 Va. 

App. 512, 515, 382 S.E.2d 487, 488 (1989). 

 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)). 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. See id. at 367, 392 S.E.2d at 510. 

 In holding that claimant was an employee of Richmond 

Modular, the commission made the following findings: 

 [T]he claimant and his co-workers credibly 

testified that they were paid on an hourly 

basis based upon time sheets that they had to 

turn in to the employer. In addition, the 

workers were not required to bring their own 

tools; were directed by the employer to 

particular jobsites; were directed by the 

employer to be at the worksite by 7:00 a.m.; 

and were reimbursed for traveling expenses. 
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Furthermore, the particular job on which the 

claimant was injured supports the claimant's 

statement that the employer retained control. 

 When uncertain as to whether or not to use a 

backhoe, the claimant requested advice from 

the employer and that advice was given. 

Therefore, as the Deputy Commissioner 

correctly noted, the credible testimony of 

the claimant and his co-workers indicate that 

Richmond Modular regularly employed at least 

three people who were not independent 

contractors but, instead, employees of 

Richmond Modular. 

 The testimony of claimant and his co-workers, Tim 

Christiansen, Benjamin Ragland, and Charles Smelser, provide 

ample credible evidence to support the commission's findings. 

Their testimony supports a finding that Richmond Modular 

controlled not only the result, but also the means and methods by 

which the work was to be accomplished. Thus, we find that 

credible evidence supports the commission's findings, and those 

findings indicate that claimant was Richmond Modular's employee 

pursuant to the Act. 

 The testimony of claimant and his co-workers also provides 

credible evidence to support the commission's finding that 

Richmond Modular employed at least three or more employees. 

Thus, the commission did not abuse its discretion in issuing a 

fine of $1,500 against Richmond Modular for failure to maintain 

workers' compensation insurance pursuant to Code § 65.2-800. 

 II. 

 Code § 65.2-306(A)(4) provides as follows: "No compensation 

shall be awarded to the employee . . . for an injury . . . caused 
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by: . . . 4. The employee's willful failure or refusal to use a 

safety appliance or perform a duty required by statute . . . ." 

"Whether an employee is guilty of willful misconduct is a 

question of fact to be resolved by the commission and the 

commission's finding is binding on appeal if supported by 

credible evidence." Adams ex rel. Boysaw v. Hercules, Inc., 21 

Va. App. 458, 463, 465 S.E.2d 135, 137 (1995). 

 In holding that employer failed to prove that claimant 

committed willful misconduct, the commission found as follows: 

 The employer's assertion that the claimant 

did not follow a commonly known safety 

procedure is insufficient to establish the 

affirmative defense of willful misconduct. 

The fact that the claimant sought out the 

employer's advice as to the use of a backhoe 

in taking down a chimney clearly shows that 

the claimant did not have a wrongful 

intention in going about the job. Instead, 

he sought out the appropriate way to take 

down the wall and was instructed in how to do 

so. Given the claimant's inexperience in 

chimney demolition and the lack of any 

express safety standard by the employer, the 

employer clearly has not met his burden of 

proving that claimant's injury was due to his 

willful misconduct. 

 Claimant's testimony provides credible evidence to support 

the commission's findings. Claimant testified that he had never 

demolished a chimney before and sought instruction from employer, 

but received no safety directions. No evidence showed that 

employer ever held safety meetings; that employer ever 

promulgated safety rules; or that employer ever told its 

employees, including claimant, to shore the chimney by using a 
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brace. Thus, no evidence proved that claimant intended to commit 

an act which he knew, or should have known, was wrongful or 

forbidden. 

 "'Wilful' . . . imports something more than a 

mere exercise of the will in doing the act. 

It imports a wrongful intention. An 

intention to do an act that he knows, or 

ought to know, is wrongful, or forbidden by 

law. . . . There cannot, however, be a 

wilful failure to perform an unknown duty." 

Brockway v. Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161 

(1995) (quoting King v. Empire Collieries Co., 148 Va. 585, 

590-91, 139 S.E. 478, 479 (1927)). 

 Because credible evidence supports the commission's 

findings, we cannot say that the commission erred in ruling that 

employer failed to prove that claimant was guilty of willful 

misconduct. 

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

 Affirmed.