COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Lemons and Senior Judge Hodges 

Argued at Alexandria, Virginia 

WADE MICHAEL SHELDON 

 MEMORANDUM OPINION*

v. Record No. 0655-98-4 BY JUDGE WILLIAM H. HODGES 

 JANUARY 12, 1999 

SPIRITS RESTAURANT, A/K/A 

 J.J. NIKITAKIS & COMPANY, 

 INC. AND VIRGINIA HOSPITALITY 

 GROUP SELF-INSURANCE ASSOCIATION, 

 LANDIN, INC. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Peter A. Cerick for appellant. 

 R. Ferrell Newman (Anne M. Dobson; Thompson, 

Smithers, Newman & Wade, on brief), for 

appellees. 

 Wade Michael Sheldon ("claimant") contends that the Workers' 

Compensation Commission ("commission") erred in finding that he 

was an independent contractor rather than an employee of Spirits 

Restaurant ("employer") at the time of his January 14, 1996 

injury by accident. Because we find as a matter of law that the 

evidence was sufficient to prove that claimant was an employee 

rather than an independent contractor, we reverse the 

commission's decision. 

 This appeal does not present a case of 

conflicting evidence or a dispute concerning 

the commission's findings of fact. When the 

issue is the sufficiency of the evidence and 

there is no conflict in the evidence, the 

issue is purely a question of law. This 

Court is not bound by the legal 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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determinations made by the commission. "[W]e 

must inquire to determine if the correct 

legal conclusion has been reached." 

Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416 

S.E.2d 708, 711 (1992) (quoting City of Norfolk v. Bennett, 205 

Va. 877, 880, 140 S.E.2d 655, 657 (1965)) (other citations 

omitted), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993). 

 James Nikitakis testified that he is the president of a 

corporation which runs a restaurant business, including the 

Grapevine Restaurant. The building which houses the Grapevine 

Restaurant and some attached apartments was damaged by fire and 

smoke. Nikitakis directed Johnnie Green to oversee and complete 

the renovation and repair of the building. Green worked for 

Nikitakis as a salaried employee, managing some of the 

corporation's restaurants and performing maintenance and 

renovation work. Green and his helper, Scotty Cox, began 

performing the repair work on the apartments. 

 Shortly thereafter, claimant, an experienced carpenter, 

sought work from Nikitakis. Nikitakis sent claimant to talk to 

Green about working on the repair and renovation job. Claimant 

stated that he went to the worksite and that Green organized what 

he wanted claimant to do. Claimant's primary duties involved 

installing a window and a closet. Claimant also helped to change 

sheet rock and assisted the electrician. Green showed claimant 

how he wanted the window installed with pressure treated wood up 

against the brick and then trimmed with 1 x 1's on the outside 
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and framed. Green also told claimant how he wanted some old 

doors put in a closet. At times, Nikitakis was present on the 

jobsite and gave instructions to Green and claimant. Upon 

completion of the job, if no more work was available, claimant 

would have sought work elsewhere. Claimant was paid $13 per hour 

with no taxes withheld, as had been the practice when he had 

worked for Nikitakis in the past. Claimant did not receive a W-2 

Form or a 1099 Form. 

 Green testified that he gave claimant instructions on the 

material to use for the window sill and the trim. Green told 

claimant how he wanted the window to look when completed. 

Nikitakis provided the materials for the job, but claimant 

furnished his own tools. Green viewed himself as claimant's 

supervisor. Nikitakis would have made any decision regarding 

whether to fire claimant. 

 Claimant and Green stated that their work hours were set by 

Green. Green had a key to the building and provided claimant 

with access into the building at the start of the workday. 

Claimant stayed on the job until Green locked up and left at the 

end of the day. Green also decided when he and claimant took a 

break or had lunch. 

 It was undisputed that on January 14, 1996, claimant 

sustained a near amputation of his left thumb while working on 

the repair and renovation of the apartments. 

 Generally, an individual "'is an employee if he works for 
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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. See Behrensen, 10 Va. App. at 367, 392 

S.E.2d at 510. However, "'it is not the actual exercise of 

[this] control, but the right [to] control,' that is 

determinative." James v. Wood Prods. of Virginia, 15 Va. App. 

754, 757, 427 S.E.2d 224, 226 (1993) (quoting Hann v. 

Times-Dispatch Publ'g Co., 166 Va. 102, 106, 184 S.E. 183, 185 

(1936)). 

 It was undisputed that employer paid claimant wages by the 

hour and reserved the power to fire him. When employer hired 

claimant, Nikitakis did not negotiate with claimant for him to 

perform the job. Rather, Nikitakis told claimant to report to 

Green, who then gave claimant instructions and supervised 

claimant on the job. Green provided access to the jobsite for 

claimant. Green set claimant's work hours and break times. 

Green instructed claimant on how he wanted the window and closet 
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completed, and Nikitakis provided the materials. 

 The testimony of claimant, Green, and Nikitakis was 

sufficient to prove as a matter of law that employer retained the 

right to control "the means and methods" by which claimant 

performed his work. "[W]ithout rejecting the testimony before 

it, the commission could not have concluded that [claimant] was 

an independent contractor. Because the commission did not reject 

the testimony, we must conclude that its decision rests upon the 

incorrect conclusions of law it expressed and that it erred in 

denying [claimant] compensation." Id. at 758, 427 S.E.2d at 226. 

 For these reasons, the commission's decision is reversed. 

 Reversed.