COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, Athey and White

Argued by videoconference 

SCOTT BRIAN DUNN

MEMORANDUM OPINION* BY

v. Record No. 0358-22-3 JUDGE CLIFFORD L. ATHEY, JR. 

FEBRUARY 7, 2023

CITYSCAPE, LLC AND

 FLAGSHIP CITY INSURANCE CO.

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Hannah Bowie (Brandon S. Osterbind; Kelly A. Osterbind; 

Osterbind Law, PLLC, on briefs), for appellant.

Richard D. Lucas (Lucas & Kite, PLC, on brief), for appellees.

Scott Brian Dunn (“Dunn”) appeals a decision of the Workers’ Compensation Commission 

denying his claim seeking a closed period of temporary total disability benefits, as well as medical 

benefits, related to a right hip injury that occurred at work on July 22, 2019. Dunn argues that the 

Commission erred by finding he was an independent contractor and Cityscape, LLC (“Cityscape”) 

“did not exercise sufficient control over [him] to render him an employee.” We find no error and 

affirm the decision of the Commission.

I. BACKGROUND

Beginning in 2008, Dunn operated his own unincorporated business, specializing in 

cabinet, door, and tile installation, woodworking, and trim. Dunn’s business had a tax 

identification number, a business license, business cards, an email address, and a presence on 

Facebook and Angie’s List. Dunn also posted signs advertising his business on at least two job 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

UNPUBLISHED
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sites. The work vehicle Dunn operated was licensed and insured by his business. At the time of 

the work accident, Dunn’s business had workers’ compensation insurance. Dunn testified that 

his business’s workers’ compensation insurance policy was a “ghost policy,” meaning that the 

policy covered his employees, but not himself. Dunn obtained the policy to produce evidence of 

coverage on contracted jobs. 

Cityscape is “a general contractor . . . [specializing in] historical renovation.” In April 

2019, Danny George (“George”) hired Dunn to work at Cityscape’s job site in Lynchburg.1 

George had hired Dunn to work on a prior Cityscape project, where Dunn had “put in all the 

cabinets, door closers, anything from scrubbing floors to get paint off, to caulking and whatever 

else they asked me that I thought was okay.” George was employed by Adaptive Services, a 

subcontractor for Cityscape, and served as their head project manager for the Lynchburg project.

Dunn was also supervised by Scott Boswell (“Boswell”) who was an employee of Cityscape with 

the title of “job site superintendent.” In addition, Manny McMillan, who was “a direct hire by 

Cityscape,” worked “side by side with . . . Dunn” as “Dunn’s helper during the cabinet 

installation process.” 

Dunn’s duties at the Lynchburg job site included hardware and cabinet installation. He 

was also responsible for completing a “punch list” when the installation work was finished. 

George and Boswell created the “punch list” with tasks for Dunn to complete and advised Dunn 

if he needed to fix or redo any of his assigned tasks. Dunn also asked them questions if he 

needed clarification on his assigned tasks. In addition, George set deadlines for Dunn to 

complete his tasks, and Dunn would need approval from George before “making changes to the 

1 There were other subcontractors performing work on the job site as well, all of whom 

Cityscape required to have a tax identification number and proof of insurance. One of the other 

subcontractors was Home Servicing Construction, which Cityscape hired to perform many of the 

same duties Dunn was hired to perform. Home Servicing Construction finished Dunn’s job after 

his work injury.
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job that [he was] doing.” But Dunn “didn’t have somebody standing over [him] all day telling 

[him] what to do, how to do it.” According to George, Dunn “could have done whatever he 

wanted” outside the work he performed at the Lynchburg job site, and Dunn was never 

prohibited from doing side jobs. 

At the time of the injury, Dunn was working “anywhere from forty to sixty plus” hours 

per week at the Lynchburg job site, pursuant to a schedule approved by George. Dunn submitted 

the number of hours he worked to Boswell, and Cityscape “issued [Dunn’s] checks” weekly. 

Dunn could not recall if the checks were made out to him directly, or his business. However,

according to George, Cityscape likely issued checks to Dunn’s business, rather than to Dunn 

directly. There was no written contract between Dunn and Cityscape. 

Cityscape supplied “all the materials,” including “anything from caulk to glue to 

hardware, screws; whatever it took,” as well as any lumber and drywall. Dunn used his own 

tools. Dunn testified that he “wouldn’t really borrow anything. I used their ladder, but . . . I 

have all the tools. If I need something, I got no problem going out and buying it.” George also 

could not “think of a tool specifically that we bought [Dunn].” 

Dunn sustained a right hip injury on July 22, 2019, while performing construction work 

at Cityscape’s Lynchburg job site. He filed a claim with the Workers’ Compensation 

Commission seeking medical benefits and a closed period of temporary total disability benefits. 

At the evidentiary hearing, the parties stipulated that Dunn sustained a compensable injury by 

accident, while earning a pre-injury average weekly wage of $1,295.67. Cityscape contested 

Dunn’s claim on the ground that he was an independent contractor, rather than an employee of 

Cityscape, at the time of the work accident. 

The deputy commissioner held that Dunn was an independent contractor and not an 

employee of Cityscape. Dunn timely filed with the Commission his request for review of the 
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deputy commissioner’s opinion. The Commission affirmed the deputy commissioner’s findings, 

holding that Cityscape did not retain “the right to exercise sufficient control over the means and 

methods by which [Dunn] performed his work to make him an employee.” This appeal 

followed.

II. ANALYSIS

A. Standard of Review

What constitutes an employee under the Workers’ Compensation Act is a question of 

law. Creative Designs Tattooing Assocs. v. Est. of Parrish, 56 Va. App. 299, 307 (2010). But 

whether the facts bring a person within the definition of an employee is a question of fact. 

Dillon Constr. & Accident Fund Ins. Co. of Am. v. Carter, 55 Va. App. 426, 430 (2009). The 

facts underlying the Commission’s determination are binding on this Court if credible evidence 

supports them. See Staton v. Bros. Signal Co., 66 Va. App. 185, 194-95 (2016). 

B. The Commission did not err by determining Dunn was an independent contractor

because Cityscape did not exercise sufficient control over Dunn to render him an 

employee.

On appeal, Dunn assigns error to the Commission’s finding that he was an independent 

contractor because Cityscape did not exercise sufficient control over him to render him an 

employee. We disagree. 

No “hard and fast rule” exists for determining whether a person is an employee of a 

company rather than an independent contractor. Creative Designs Tattooing Assocs., 56 

Va. App. at 308 (quoting Hann v. Times-Dispatch Pub. Co., 166 Va. 102, 105-06 (1936)). Four 

criteria are generally reviewed when a court is asked to determine whether a person is an 

“employee” under the Act: “‘(1) [s]election and engagement of the servant; (2) payment of 

wages; (3) power of dismissal; and (4) the power of control of the servant’s action.’” Dillon 

Constr., 55 Va. App. at 430 (quoting Crowder v. Haymaker, 164 Va. 77, 79 (1935)). Virginia 
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courts have held previously that “[t]he potential power of control, not the actual exercise of 

control, is the important element.” Id. at 431 (quoting Va. Emp. Comm’n v. A.I.M. Corp., 225 

Va. 338, 347 (1983)).

The right of control includes not only the power to specify the result to be attained, but 

also the power to control “the means and methods by which the result is to be accomplished.” 

Id. (quoting Richmond Newspapers, Inc. v. Gill, 224 Va. 92, 98 (1982)). “An 

employer/employee relationship exists if the party for whom the work is to be done has the 

power to direct the means and methods by which the other does the work.” Id. (quoting 

Intermodal Servs., Inc. v. Smith, 234 Va. 596, 601 (1988)). “If the latter is free to adopt such 

means and methods as he chooses to accomplish the result, he is not an employee but an 

independent contractor.” Id. (quoting A.I.M. Corp., 225 Va. at 347). “The extent of the reserved 

right of control may be determined by examining the performance of the parties in the activity 

under scrutiny.” Id. (quoting Intermodal Servs., Inc., 234 Va. at 601). This Court examines the 

nature of the work to determine on a case-by-case basis whether the employer possessed the 

requisite degree of control for the claimant to qualify as an employee. See Purvis v. Porter Cabs, 

Inc., 38 Va. App. 760, 770 (2002).

We disagree with Dunn’s contention that Cityscape retained the right to exercise 

sufficient control over the means and methods of Dunn’s work to render Dunn their employee. 

The evidence reflected that Cityscape did not closely supervise Dunn. As the Commission 

found, George and Boswell “coordinated the entire project and oversaw [Dunn’s] work, but 

neither of them dictated the means and methods by which [Dunn] accomplished the tasks 

assigned to him.” While Dunn’s supervisors checked behind Dunn’s work to ensure it met 

Cityscape’s standards, Dunn did not require instruction regarding how to complete his job duties. 
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Moreover, while the evidence suggests that Cityscape supplied Dunn with certain 

materials necessary to perform his duties, Dunn supplied his own tools. Along with the tools he 

already owned, Dunn had “no problem going out and buying [more tools]” on his own if 

necessary. In fact, George could not “think of a tool specifically that we bought [Dunn].” Dunn 

also held himself out to the public as a business owner performing the same work independently 

as the work he did for Cityscape. In 2008, Dunn started his business, specializing in cabinet and 

hardware installation, woodworking, and trim, which is the same work he was asked to perform 

at Cityscape’s Lynchburg job site and on other previous Cityscape jobs. Dunn’s business had a 

tax identification number, workers’ compensation insurance, a business license, business cards, 

and an online presence. Dunn’s vehicle was also licensed and insured under his business. At no 

point did Cityscape restrict Dunn (or his business) from working on other jobs outside the 

Lynchburg job site. There were also other subcontractors at Cityscape’s Lynchburg job site, 

including Home Servicing Construction, which Cityscape hired to perform many of the same 

duties that Dunn was hired to perform. 

Dunn cites several factors in support of his argument that he was an employee, including 

that he was paid an hourly wage, that Boswell dictated when he worked, and that he had to 

submit his hours to Boswell to get paid. Notwithstanding Dunn’s arguments, we find that the 

Commission properly weighed the totality of the evidence and correctly found that the evidence 

was sufficient to support a finding that Cityscape did not retain the right to control the method 

and means of the work Dunn performed. Thus, we hold that the Commission did not err in 

finding that Dunn was an independent contractor. 

III. CONCLUSION

For the foregoing reasons, we affirm the decision of the Commission.

Affirmed.