COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

ALICE E. WAGGLE 

v. Record No. 0556-96-4 

JOHN M. LANG & SUSAN A. LANG, t/a 

 KILLAHEVLIN 

 MEMORANDUM OPINION* BY 

and JUDGE CHARLES H. DUFF 

 NOVEMBER 19, 1996 

SHELLEY A. MARTIN 

v. Record No. 0557-96-4 

JOHN M. LANG & SUSAN A. LANG, t/a 

 KILLAHEVLIN 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Jerry O. Talton (Nikolas E. Parthemos; 

Prosser, Parthemos & Bryant, P.C., on 

briefs), for appellants. 

 Dana L. Rust (John M. Oakey, Jr.; Matthew S. 

Bryant; McGuire, Woods, Battle & Boothe, 

L.L.P., on briefs), for appellees. 

 Alice E. Waggle ("Waggle") and Shelley A. Martin ("Martin") 

appeal a decision of the Workers' Compensation Commission denying 

their applications for compensation benefits. Waggle and Martin 

contend that the commission erred in finding that they were not 

employees of John M. Lang and Susan A. Lang, t/a Killahevlin 

pursuant to the provisions of the Workers' Compensation Act ("the 

Act"). Finding no error, we affirm the commission's decision. 

 

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

designated for publication. 
 2 

 When Martin's and Waggle's accident occurred on May 25, 

1994, they were working for the Langs. Their jobs involved 

stripping paint from a tower wall on one of the buildings at 

Killahevlin, a bed and breakfast owned by the Langs. Martin and 

Waggle had been working on the tower for two days prior to May 

25, 1994. John Lang had instructed Martin and Waggle to strip 

the paint off the entire outside wall on the tower. As Martin 

and Waggle stood on an eight by four foot porch and worked 

opposite each other stripping paint from the upper wall, the 

porch collapsed, causing them to fall to the ground. Martin and 

Waggle sustained multiple injuries. 

 Martin began working for the Langs in April 1994. She 

worked five days per week, eight hours per day, and earned $7.50 

per hour. The Langs usually paid her by check each Friday, but 

on occasion gave her money on the day she worked. At times, the 

Langs paid Martin in cash. 

 From April 1994 until May 25, 1994, Martin scraped and 

sanded radiators, windows and doors at Killahevlin. Martin 

stated that at the time of her accident, the Langs also employed 

Henry Sloane, Melvin Baugher, Tommy Daniels, Alice Waggle, and 

others whom she could not remember. Martin stated that John Lang 

showed her how to strip walls. 

 Waggle testified that she began working for the Langs in 

early 1993. She sanded, stripped paint, and, at times, cleaned 

rooms. She may also have worked during this period of time for 
 3 

one or two weeks for Melvin Baugher. Waggle stated that she 

worked forty hours per week, Monday through Friday, and she 

earned between $7 and $10 per hour, depending on the difficulty 

of the job. When Waggle first started working for the Langs, 

they paid her in cash, but later paid her by check on a weekly 

basis. Waggle stated that John Lang set her work hours, provided 

all her tools, told her what to do when she got to work, was 

present on the jobsite, controlled her work performance, and 

showed her how to perform various job tasks. Waggle stated that 

the Langs employed several other individuals at the time of her 

accident. 

 Wendy Clooney testified that she accepted telephone calls at 

her home on behalf of Waggle. Clooney stated that John Lang 

called her home ten to fifteen times to tell Waggle when to be at 

work. 

 John Lang testified that Killahevlin is a bed and breakfast, 

which he and his wife have been renovating for five-and-one-half 

years. They also live in the house. John Lang stated that he 

hires various contractors, carpenters, and day laborers to work 

on the renovations. He did not withhold taxes or social security 

for any of these individuals. John Lang claimed that he did not 

supervise the independent contractors who helped renovate the 

house. He characterized these individuals as casual laborers 

because they did not have regular work schedules. Instead, they 

worked only when the Langs needed them. 
 4 

 John Lang testified that he hired Waggle in 1993 and paid 

her $7.50 per hour. He stated that Waggle's main task was to 

sand woodwork, and that Waggle did not work continuously for him 

up until the time of the accident, but that she also worked for 

Baugher. John Lang stated that Waggle first brought Martin to 

the jobsite. He stated that he paid Martin $7.50 per hour and 

she did not work a set schedule. Martin and Waggle kept track of 

the hours they worked by writing them on a calendar provided by 

the Langs. John Lang denied that he supervised Martin and Waggle 

when they performed work on the tower. He admitted that in order 

to make the bed and breakfast profitable he had to renovate the 

house, but asserted that he did not run a home renovation 

business. He admitted that he provided all of Waggle's and 

Martin's tools. He also stated that he probably told Waggle and 

Martin to strip the paint off the tower and suggested they use a 

product called "Peel-Away." He had shown Waggle how to use 

Peel-Away on a previous occasion. 

 Code § 65.2-101 defines "employee" as follows: 

 1. a. Every person . . . in the service of 

another under any contract of hire or 

apprenticeship, written or implied, except 

(i) one whose employment is not in the usual 

course of the trade, business, occupation or 

profession of the employer or (ii) as 

otherwise provided in subdivision 2 of this 

definition. 

* * * * * * * 

 2. "Employee" shall not mean: 

* * * * * * * 
 5 

 e. Casual employees. 

 Waggle and Martin bore the burden of proving that they were 

employees of the Langs. Craddock Moving & Storage Co. v. 

Settles, 16 Va. App. 1, 3, 427 S.E.2d 428, 430 (1993), aff'd, 247 

Va. 165, 440 S.E.2d 613 (1994). 

 "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.2d 246, 247 (1929). "Deciding what is the trade, 

business, or occupation of an entity is a 'mixed question of law 

and fact' and is a question that 'does not readily yield to 

categorical or absolute standards.'" Henderson v. Central Tel. 

Co. of Virginia, 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987) 

(quoting Bassett Furniture v. McReynolds, 216 Va. 897, 902, 224 

S.E.2d 323, 326 (1976)). 

 The commission found that the Langs were not in the business 

of purchasing and restoring historical properties; rather, they 

were in the business of operating a bed and breakfast. The 

commission held that "the preparation of the proper facilities to 

conduct that business by restoration or renovation does not 

constitute 'periodic, regular, or permanent' activities that are 

part of the usual course of the trade, business, or occupation of 

the employer." The commission found that although the renovation 

was essential to the establishment of the Langs' bed and 

breakfast, it was not part of the Langs' regular and permanent 
 6 

operations. Thus, the commission agreed that Waggle and Martin 

were not independent contractors, yet they did not qualify as 

"employees" under Code § 65.2-101. 

 In Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162 

(1972), the Supreme Court set forth the test this Court must use 

to determine whether Waggle and Martin were engaged in the Langs' 

trade, business, or occupation: 

 [T]he test is not one of whether the 

subcontractor's activity is useful, 

necessary, or even absolutely indispensable 

to the statutory employer's business, since, 

after all, this could be said of practically 

any repair, construction or transportation 

service. The test (except in cases where the 

work is obviously a subcontracted fraction of 

a main contract) is whether this 

indispensable activity is, in the business, 

normally carried on through employees rather 

than independent contractors. 

Id. at 722, 187 S.E.2d at 167. This test "works best in cases 

involving private businesses because those entities often define 

their trade, business, or occupation by their conduct. With 

regard to such entities, what they do on a day-to-day basis 

provides a reasonably reliable indicator of their trade, 

business, or occupation." Henderson, 233 Va. at 383, 355 S.E.2d 

at 599. 

 In Mims v. McCoy, 219 Va. 616, 248 S.E.2d 817 (1978), the 

Supreme Court held that the work performed by a carpenter in 

doing renovations for a farmer on his riverfront cabin was in no 

way connected to the farmer's usual occupation, and therefore, 

the commission erred in ruling that the carpenter was an employee 
 7 

covered by the Act. Id. at 619, 248 S.E.2d at 819. 

 In this case, although the record established that the work 

Waggle and Martin performed for the Langs was not casual, and 

that John Lang maintained a degree of control over the means and 

methods Waggle and Martin used to accomplish their work, the 

evidence failed to show that Waggle's and Martin's work fell 

within the Langs' usual trade, business, or occupation. Thus, 

the commission did not err in finding that Waggle and Martin were 

not "employees" covered under the Act. The work Waggle and 

Martin performed, i.e., renovation and restoration of the 

Killahevlin buildings, was not part of the Langs' regular or 

permanent business of running a bed and breakfast inn nor did the 

evidence prove that the Langs expected the bed and breakfast 

employees to perform such work. 

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

 Affirmed.