COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Clements 

Argued at Alexandria, Virginia 

JOHN OSBORNE 

 OPINION BY 

v. Record No. 2434-00-4 JUDGE ROSEMARIE ANNUNZIATA 

 JULY 3, 2001 

ROBERT FORNER t/a BRUSH OF CLASS AND 

 UNINSURED EMPLOYER'S FUND 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Julie H. Heiden (Koonz, McKenney, Johnson, 

Depaolis & Lightfoot, on brief), for 

appellant. 

 James R. Ryan (Susan A. Evans; Siciliano, 

Ellis, Dyer & Boccarosse, on brief), for 

appellee Robert Forner t/a Brush of Class. 

 Paul S. Stahl, Assistant Attorney General 

(Mark L. Earley, Attorney General; John J. 

Beall, Jr., Senior Assistant Attorney 

General, on brief), for appellee Uninsured 

Employer's Fund. 

 The appellant, John Osborne, appeals a decision by the 

Workers' Compensation Commission finding that the employer, 

Robert Forner, t/a Brush of Class, did not regularly employ three 

or more employees and was, therefore, not subject to the 

Workers' Compensation Act. For the following reasons, we affirm. 

BACKGROUND

 Osborne was injured on November 4, 1997 while working for 

Robert Forner. Forner, a sole proprietor, works as a painting 

contractor. In October 1997, Osborne was in a paint store 

filling out an employment application when he met Forner. Forner 
testified that he "had a pretty large size job going on, so when 

I saw him filling out the application, I asked him if he was a 

painter, and then I asked him if he would like to work." Forner 

told Osborne that he paid $120 per day but that Forner could not 

guarantee him year-round work. Osborne worked for Forner for 

eight days before he was injured on the job. 

 Forner had two other employees, Stephanie Wickham and Mike 

Dunigan, both of whom worked with him on a part-time basis. 

Forner described his relationship with Wickham as follows: 

I would call her when I had enough work that 

I may need to use somebody, and if she could 

not show up, she would tell me so, and that's 

fine, and if she could show up, she would. 

She was also going to school at NOVA at the 

same time. 

Mike Dunigan had worked for Forner "on and off" for about eight 

years, and Forner described his relationship with Dunigan as 

follows: 

Basically the same [as with Wickham], that I 

would call him up when I had work and if he 

could show, he would. If he was working for 

somebody else at the time, he would tell me, 

and I would have to continue on the best I 

could. 

 During periods when business was slow or when Dunigan or 

Wickham was unavailable, Forner performed all the required work 

himself. Forner worked alone 75-80% of the time and did not work 

three months out of the year. He was described by Dunigan as a 

"one-man show." Dunigan also stated that the work was "not at 

all consistent." In 1997, the year of Osborne's injury, Dunigan 

had worked about fifty days for Forner and Wickham had worked 

about forty. Forner estimated that there were about twenty days 

in 1997 on which both Dunigan and Wickham worked. 

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 Dunigan generally worked alone on the Jenkins Lane project, 

the site where Osborne was injured. "Stephanie [Wickham] came in 

a couple times . . . [but] she wasn't there everyday." On the 

day Osborne was injured, Wickham was working on another project 

with Forner, but Dunigan testified that it was "rare" that more 

than one project at a time was undertaken and that he had "never 

seen it before." During the eight days Osborne worked prior to 

his injury, Dunigan worked with him every day. 

 Following his injury on November 4, 1997, Osborne filed for 

workers' compensation benefits. Forner contested the claim on 

the ground that, because he did not regularly employ three or 

more employees, he was not subject to the provisions of the 

Workers' Compensation Act. By opinion dated April 18, 2000, the 

deputy commissioner held that the employer regularly employed 

three or more employees and was, therefore, subject to the 

commission's jurisdiction. By opinion dated September 11, 2000, 

the full commission reversed, finding that Forner did not 

regularly employ three or more employees. Osborne now appeals to 

this Court. 

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ANALYSIS

 Under Code § 65.2-101, employers with fewer than three 

employees are exempt from coverage under the Workers' 

Compensation Act.1 The employer has the burden of producing 

evidence that it is exempt from coverage. Craddock Moving & 

Storage Co. v. Settles, 16 Va. App. 1, 2, 427 S.E.2d 428, 429 

(1993), aff'd per curiam, 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. 246, 247 (1929); see also Metropolitan Cleaning Corp., Inc. 

v. Crawley, 14 Va. App. 261, 264, 416 S.E.2d 35, 37 (1992) (en

banc). We are bound by the commission's findings of fact if 

those findings are supported by credible evidence. Lynch v. Lee, 

19 Va. App. 230, 234, 450 S.E.2d 391, 393 (1994). On appeal, we 

construe the evidence in the light most favorable to the 

employer, the party prevailing below. Whitlock v. Whitlock 

Mechanical/Check Services, Inc., 25 Va. App. 470, 479, 489 S.E.2d 

687, 692 (1997). 

 In determining the number of employees a sole proprietor has 

"regularly in service," a sole proprietor is excluded from the 

calculus unless an election is made to be included as an employee 

under workers' compensation coverage and the insurer is notified 

of the election. Code § 65.2-101(1)(n); Whitlock, 25 Va. App. at 

 1

 "'Employee' shall not mean: . . . . Employees of any 

person, firm or private corporation, including any public service 

corporation, that has regularly in service less than three 

employees in the same business within this Commonwealth . . . ." 

Code § 65.2-101(2)(h). 

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477, 489 S.E.2d at 691. In this case, Forner did not elect such 

coverage. We will, therefore, not treat him as an employee of 

his business. 

 For the purpose of determining the applicability of the Act 

to an employer, part-time workers may be included, provided they 

are "regularly in service." Cotman v. Green, 4 Va. App. 256, 

259, 356 S.E.2d 447, 448 (1987); see also Smith v. Hylton, 14 Va. 

App. 354, 356, 416 S.E.2d 712, 714 (1992); 4 Arthur Larson & Lex 

K. Larson, Larson's Workers' Compensation Law § 74.02 (2000). To 

determine whether an employee is "regularly in service," we 

examine the employer's "established mode of performing the work." 

Cotman, 4 Va. App. at 259, 356 S.E.2d at 448; Smith, 14 Va. App. 

at 356, 416 S.E.2d at 714; Larson, supra, § 74.02. The term 

"regularly" implies a "practice," France v. Munson, 3 A.2d 78, 81 

(Conn. 1938), or a "constant or periodic custom," Mathers v. 

Sellers, 113 So.2d 443, 445 (Fla. Dist. Ct. App. 1959), of 

employment. Therefore, we look for "regularly-recurring periods" 

of employing the requisite number of persons over some reasonable 

period of time. Larson, supra, § 74.02; see Lingo v. Crews, 43 

So.2d 815, 815-16 (Ala. 1950); LaPoint v. Barton, 328 So.2d 605, 

607 (Ala. Civ. App. 1976); France, 3 A.2d at 81; Harding v. 

Plumley, 496 S.E.2d 29, 32 (S.C. Ct. App. 1998). In order for 

the employer to be subject to the Act, the recurring periods of 

employing the requisite number of employees should be the rule 

and not the exception. See France, 3 A.2d at 83; Sudler v. Sun 

Oil Co., 227 So.2d 482, 484 (Fla. 1969). Stated differently, an 

employer's status under the Workers' Compensation Act should not 

fluctuate between being subject to the Act and being exempt from 

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it. Cotman, 4 Va. App. at 259, 356 S.E.2d at 448-49; Larson, 

supra, § 74.02. As we noted in Cotman: 

If an employer regularly employs three or 

more persons to carry out the established 

mode of performing the work of the business, 

he should remain subject to the provisions of 

the Act even if one or more of the employees 

works less than full-time, or if the number 

of his employees temporarily falls below 

three. 

Cotman, 4 Va. App. at 259, 356 S.E.2d at 449. The converse is 

true, as well; where an employer temporarily or occasionally 

employs a third person, the employer will not be subject to the 

provisions of the Act. 

 Applying these principles to the instant case, we hold that 

Forner did not regularly employ three or more persons in the 

operation of his business. In 1997, Dunigan and Wickham were 

part-time employees and worked fewer than fifty and forty days, 

respectively. Assuming without deciding Dunigan and Wickham are 

regular employees, the evidence nonetheless only establishes 

that Forner employed two individuals for an eight-day period and 

three individuals for one day.2

 Such a pattern of employment 

fails to establish a "mode of performing work" with three or more 

employees. See id. at 259, 356 S.E.2d at 448. 

 We find the commission's holding that Forner was exempt from 

coverage under the Act is supported by credible evidence. The 

evidence demonstrates that Forner's employment of three persons 

on the day Osborne was injured was the exception and not the 

rule. We accordingly affirm the commission's decision. 

 2

 Osborne worked only eight days before he was injured, and 

during the time of his employ, Dunigan worked with him each of 

the eight days, and Wickham worked only one of the days that 

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 Affirmed. 

 

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Osborne worked, but on a different project.