COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Overton and Senior Judge Duff 

LMI INSURANCE COMPANY 

v. Record No. 2670-96-4 

JAMES FOLEY, 

 TOWER ELECTRIC COMPANY, 

 CANOVA ELECTRICAL CONTRACTING, INC. 

 AND ROYAL INSURANCE COMPANY OF AMERICA 

 MEMORANDUM OPINION* BY 

LMI INSURANCE COMPANY CHARLES H. DUFF 

 JULY 29, 1997 

v. Record No. 2671-96-4 

CARLOS A. REAL, 

 TOWER ELECTRIC COMPANY, 

 CANOVA ELECTRICAL CONTRACTING, INC. 

 AND ROYAL INSURANCE COMPANY OF AMERICA 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Cathie W. Howard; Pierce & Howard, P.C., on 

briefs), for appellant. Appellant submitting 

on brief. 

 (Benjamin J. Trichilo; Trichilo, Bancroft, 

McGavin, Horvath & Judkins, P.C., on briefs), 

for appellees Canova Electrical Contracting, 

Inc. and Royal Insurance Company of America. 

 Appellees submitting on brief. 

 No brief for appellee James Foley. 

 No brief for appellee Tower Electric Company. 

 No brief for appellee Carlos A. Real. 

 LMI Insurance Company (LMI) appeals decisions of the 

Workers' Compensation Commission holding it liable to James Foley 

 

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

designated for publication. 
 2 

and Carlos A. Real for workers' compensation benefits. LMI 

contends that the commission erred in finding that Real and Foley 

were not loaned employees of Canova Electrical Contracting, Inc. 

(Canova), but rather, were employees of Tower Electric Company 

(Tower) at the time of their industrial accidents. Because 

credible evidence supports the commission's decisions, we affirm. 

 We decline to address the jurisdictional issue raised by the 

parties because our affirmance of the commission's decision on 

the "loaned employee" issue renders the jurisdictional issue 

moot. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. See R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

 So viewed, the evidence established that on June 21, 1994 

and July 10, 1994, respectively, Real and Foley, Tower's 

employees, sustained compensable industrial injuries while 

working as electricians at a Sears/Landmark renovation jobsite 

(the Landmark job) located in Northern Virginia. Tower filed two 

separate Employer's First Reports of Accident with the commission 

reporting both accidents. 

 All Interiors was the general contractor on the Landmark 

job. Canova, a company headquartered in Pennsylvania, was a 

subcontractor performing electrical work on the Landmark job 

renovation. In turn, Canova entered into a labor subcontract 

agreement with Tower, a Virginia company, for Tower to supply all 
 3 

 

of the labor necessary to perform the electrical work. The 

agreement required Canova to furnish all necessary supervision 

for the Landmark job. The intent of the labor subcontract was 

for Tower to provide Canova a pool of laborers for a limited 

period of time while Canova worked on the Landmark job, and for 

Tower to pay all fringe benefits for its workers, including 

workers' compensation insurance.1

 Glen Johnson, Tower's vice-president, testified that at the 

end of the month, pursuant to the terms of Tower's subcontract 

with Canova, Tower billed Canova for the total direct cost of the 

labor Tower furnished for the Landmark job plus a sixty percent 

mark-up. Johnson sent Tower employees to the Landmark jobs upon 

request from Canova's supervisor, Melvin Worrall. 

 Real believed Worrall was his foreman on the Landmark job. 

Worrall routinely checked Real's work. Real heard Worrall give 

instructions to Brad Walport, Tower's foreman on the Landmark 

job. Real believed that Worrall could terminate his employment. 

 Worrall recorded Real's hours worked and gave Real his 

paychecks. On the day of his accident, Real received his work 

instructions from Walport. 

 Foley did not consider himself an employee of Canova, but 

believed that he was employed by Tower. Foley received his 

paychecks from a Tower foreman. Foley had been instructed to 

 1Pursuant to a policy for workers' compensation insurance 

and employer's liability insurance, LMI insured Tower for the 

period from August 1, 1993 through August 1, 1994. 
 4 

report to Worrall when he arrived at the Landmark job. Foley 

stated that a Tower official told him he was on loan to Canova 

for a temporary period. Immediately preceding Foley's accident, 

Worrall instructed Foley to climb the scaffold to work on some 

lighting. Foley stated that Walport acted as the Tower 

supervisor on the Landmark job. Foley received most of his 

instructions from Walport. Walport told Foley who to work with 

and where to go. Foley had twenty years experience as an 

electrician. 

 Walport, a skilled electrician, testified that he acted as 

Tower's sub-foreman on the Landmark job. Walport assigned the 

laborers to various tasks under the direction of Worrall, from 

whom Walport received his instructions. Walport believed that 

Worrall gave raises to several Tower employees who worked on the 

Landmark job. 

 Denise Gold, Tower's office manager, testified that Worrall 

or Thomas L. Mattey turned in the time sheets for Tower's 

employees each week, and then one of them picked up the paychecks 

for the week for Tower's employees on the Landmark job and 

delivered the checks to the employees. Gold stated that the 

raises received by Tower employees on the Landmark job were only 

effective during that job. Tower billed Canova for performing 

the payroll function. 

 Thomas L. Mattey testified that he acted as a supervisor for 

Canova on the Sears/Fair Oaks job (the Fair Oaks job). Mattey 
 5 

relied heavily upon a Tower employee, Charlie Jones, to relay 

instructions and directions to the approximately thirteen to 

fifteen Tower employees on the Fair Oaks job. Mattey verified 

that the Tower employees were doing what they were supposed to do 

once Jones had assigned them to work. If a task had not been 

done in accordance with the general contractor's plans and 

specifications, Mattey notified Jones, who then instructed 

Tower's employees to make the correction. Tower's employees 

notified Jones or Tower if they were going to be late or absent 

from work. Tower's workers provided their own hand tools. 

Canova provided the larger equipment, such as scaffolding. 

Mattey had no authority to hire or fire the Tower employees on 

the Fair Oaks job. All Interiors also had a supervisor on the 

Fair Oaks job, Anthony Gulianno. Mattey reported to Gulianno 

every day. At most, Mattey had three to four additional Canova 

employees at the Fair Oaks job. 

 James Canova, Canova's president and owner, testified that 

Canova had a subcontract with Sears to renovate two stores in 

Northern Virginia. Canova then entered into a labor subcontract 

with Tower for Tower to provide the labor for the Sears jobs. 

Worrall acted as Canova's superintendent on the Landmark job. 

Worrall received his instructions from All Interiors, and then 

relayed those to Tower's foreman, who then directed the Tower 

workers. Canova sent four to five of its own electricians to 

work on the Landmark job. Walport supervised the Tower employees 
 6 

on the Landmark job. Walport reported to Worrall, who told 

Walport what needed to be done. James Canova understood that a 

portion of the sixty-percent mark-up charged by Tower to Canova 

included Tower's cost for workers' compensation coverage for its 

workers. James Canova testified that his company had no 

authority to hire or fire Tower's employees. If Canova was 

dissatisfied with a Tower employee, it sent the employee back to 

the Tower office. 

 Worrall testified that he told Walport what needed to be 

done on the Landmark job. If Worrall found that a task had not 

been done correctly, he told Walport to correct the problem, and 

Walport made sure that his employees did so. If Worrall was 

displeased with a Tower employee, he sent the employee back to 

Tower's office. Worrall faxed the Tower employees' hours to 

Tower's office each week so that Tower could do the payroll. 

Walport distributed the paychecks at the jobsite. Worrall did 

not inspect Tower's work every day, but performed walk-throughs 

on a regular basis. Worrall gave Walport the blueprints for the 

Landmark job for Tower to use in performing the electrical work. 

 Ken Pluebell, Tower's president, testified that Tower agreed 

to provide Canova labor for the Landmark job at Tower's cost plus 

a sixty-percent mark-up. In exchange, Tower agreed to be 

responsible for all fringe benefits, including taxes and 

overhead, which included workers' compensation insurance 

coverage. 
 7 

 In affirming the deputy commissioner's decision, the full 

commission held that Real and Foley were Tower's employees and 

were not loaned employees to Canova. The commission found that 

although Tower and Canova exercised some control over Real and 

Foley, Tower, through its on-site supervisor, Walport, exercised 
 8 

the stronger and more direct control, giving Real and Foley their 

day-to-day assignments. In addition, the commission noted that 

Tower assigned employees to the jobsite, paid them, and 

reassigned them if requested by Canova. 

 The commission noted that Canova's limited control was not 

similar to the control exercised by the special employer in 

Virginia Polytechnic Inst. v. Frye, 6 Va. App. 589, 371 S.E.2d 34 

(1988), where the special employer "exclusively and completely" 

controlled the employee. The commission further noted that 

Canova's control was not similar to the "complete control" 

exercised by the special employer in Metro Mach. Corp. v. 

Mizenko, 244 Va. 78, 419 S.E.2d 632 (1992). 

 In Mizenko, the Supreme Court recognized that "control over 

the employee is the most important factor in consideration of 

[loaned employee] status, although it alone may not be 

dispositive." Id. at 83, 419 S.E.2d at 635. The factors 

"generally accepted as appropriate considerations" for 

determining whether an employee is a "loaned employee" are as 

follows: 

 (1) who has control over the employee and the 

work he is performing; (2) whether the work 

performed is that of the borrowing employer; 

 (3) was there an agreement between the 

original employer and the borrowing employer; 

 (4) did the employee acquiesce in the new 

work situation; (5) did the original employer 

terminate its relationship with the employee; 

 (6) who is responsible for furnishing the 

work place, work tools and working 

conditions; (7) the length of the employment 

and whether it implied acquiescence by the 

employee; (8) who had the right to discharge 
 9 

the employee; and (9) who was required to pay 

the employee. 

Id.

 "On appellate review, the factual findings of the commission 

are binding if they are supported by credible evidence." Wagner 

Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 

(1991). Here, the commission's findings that Foley and Real were 

Tower's employees and were not loaned employees of Canova are 

supported by credible evidence. Even though the labor 

subcontract agreement between Tower and Canova required Canova to 

furnish all necessary supervision, the facts showed that Tower, 

through its on-site supervisor, Walport, actually exercised 

stronger and more direct control over the Tower employees than 

did Canova. Walport assigned specific tasks to the workers on a 

daily basis. Tower paid the workers and reserved the right to 

terminate them. Although Canova had general supervisory 

authority over Foley and Real, its control was neither exclusive 

nor complete, as was the case in Mizenko and Frye. Canova merely 

told Tower how many workers it needed and what work needed to be 

done in accordance with the blueprints and general contractor's 

specifications. Foley testified that he received most of his 

supervision from Walport. Foley did not consider himself to be a 

Canova employee. Real testified that on the day of his accident, 

he received his instructions from Walport. At no point in time 

did Tower terminate its employment relationship with Foley or 

Real. In fact, Foley testified that he returned to employment 
 10 

with Tower after recovering from his injuries. 

 Worrall, the Canova supervisor, testified that he allowed 

Walport to decide which workers would perform specific tasks. 

Worrall testified that he could not fire Tower's workers. 

Pluebell, Tower's president, testified that Tower retained 

ultimate authority over firing decisions. In addition, Pluebell 

admitted that the intent of the agreement was for Tower to supply 

workers' compensation coverage for its workers. Moreover, the 

duration of the employment was temporary, not long-lasting. 

 Because credible evidence supports the commission's findings 

that Tower was Foley's and Real's employer and that Canova was 

not their special master, those findings are binding and 

conclusive upon this Court on appeal. "The fact that there is 

contrary evidence in the record is of no consequence if there is 

credible evidence to support the commission's finding." Wagner, 

12 Va. App. at 894, 407 S.E.2d at 35. "In determining whether 

credible evidence exists, the appellate court does not retry the 

facts, reweigh the preponderance of the evidence, or make its own 

determination of the credibility of the witnesses." Id. 

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

 Affirmed.