COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Bray and 

 Senior Judge Overton*

Argued at Norfolk, Virginia 

ASSOCIATED CABS, INC. 

 MEMORANDUM OPINION** BY 

v. Record No. 1823-98-1 JUDGE RICHARD S. BRAY 

 FEBRUARY 9, 1999 

ISSIAH KING 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Kevin W. Grierson (Richard B. Donaldson; 

Jones, Blechman, Woltz & Kelly, P.C., on 

brief), for appellant. 

 No brief or argument for appellee. 

 Issiah King (claimant) filed a claim for benefits with the 

Workers' Compensation Commission (commission) alleging a 

compensable accidental injury suffered while in the employ of 

Associated Cabs, Inc. (employer). The deputy commissioner 

awarded temporary total disability at a rate of "$312.33 per week 

. . . continuing until conditions justif[ied] a modification 

thereof." The full commission affirmed, amending the award to 

"$264.83 per week," also until circumstances required 

modification. Employer appeals, complaining the commission 

erroneously found that the accident caused claimant's injuries 

 

 *Judge Overton participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

January 31, 1999 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401, recodifying Code 

§ 17-116.01:1. 

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

this opinion is not designated for publication. 
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and a related disability and incorrectly calculated the attendant 

benefits. Finding no error, we affirm the decision. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to 

disposition of the appeal. On review, we construe the evidence 

in the light most favorable to the prevailing party below, 

claimant in this instance. See R.G. Moore Bldg. Corp. v. 

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

 The evidence disclosed that claimant regularly drove a taxi 

for employer, earning a "salary" of $300 per week and an 

additional weekly "commission" of approximately $100 for driving 

employer's cabs at night. While operating a taxi for employer 

during a salaried period, claimant "got hit in the rear [by 

another vehicle] and felt a snap . . . in the right side of [his] 

neck," followed by pain in his neck and shoulder regions. 

 Claimant was admitted to Bon Secours-DePaul Medical Center 

immediately after the accident, and a CT scan revealed 

abnormalities in the cervical spine which required surgical 

intervention. A report of the scan concluded that claimant's 

condition 

 may be do [sic] entirely to old degenerative 

joint disease either secondarily induced from 

trauma or perhaps infection. The possibility 

that the mild subluxation has occurred 

secondary to this trauma superimposed on an 

old injured weakened facet cannot be excluded 

particularly given the clinical new acute 

right upper extremity radiculopathy and 

recent severe neck trauma from an automobile 

accident. 
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 In correspondence dated December 11, 1996, Dr. Jonathan 

Partington, claimant's treating neurosurgeon, reviewed claimant's 

history and related findings, noting that he had 

 been hospitalized at Bon Secours-DePaul 

Medical Center from 11/21/96 to the present. 

 He was admitted following a motor vehicle 

accident which resulted in neck pain and 

right arm weakness and numbness. The workup 

revealed instability of C4-C5. He was taken 

to surgery on 11/26/96 for right C5 

foraminotomy, and multiple bone biopsies. 

 [Claimant] has subsequently developed an 

apparent C4-C5 infection of the facet joint 

and possible diskitis and will likely need 

4-6 weeks of intravenous antimicrobial 

therapy. [Claimant] still has right upper 

extremity weakness and numbness, as well as 

persistent neck pain. 

Dr. Partington opined "that [claimant] will be disabled and 

unable to be gainfully employed for at least one year." 

 Claimant testified that he had been asymptomatic prior to 

the accident. However, he has since been disabled by "severe 

problems" and has not "been released [to work] by the doctor." 

The record provided no medical evidence of claimant's condition 

at the time of the hearing. 

 Relying upon claimant's testimony, the results of the CT 

scan, and Dr. Partington's report, the commission determined that 

claimant "sustained an injury by accident to his neck arising out 

of and in the course of his employment," which caused temporary 

total disability. In computing attendant compensation benefits, 

the commission included claimant's "commission" earnings. 

Employer challenges the sufficiency of the evidence to support 
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both the commission's causation findings and calculation of the 

dependent award. 

 "The commission's determination regarding causation is a 

finding of fact and is binding on appeal when supported by 

credible evidence." Marcus v. Arlington County Bd. of 

Supervisors, 15 Va. App. 544, 551, 425 S.E.2d 525, 530 (1993) 

(citations omitted). A finding of disability is similarly 

binding on review by the Court. See Georgia Pacific Corp. v. 

Dancy, 17 Va. App. 128, 133-34, 435 S.E.2d 898, 901 (1993). 

"'Medical evidence is not necessarily conclusive, but is subject 

to the commission's consideration and weighing.' The testimony 

of a claimant may also be considered in determining causation, 

especially where the medical testimony is inconclusive." Dollar 

General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 

154 (1996) (citations omitted). 

 Here, the record reflects that claimant was involved in an 

accident which resulted in trauma to his neck and the onset of 

pain and discomfort, necessitating immediate medical attention. 

Subsequent diagnostic care identified a possible nexus between 

the "severe neck trauma from an automobile accident" and the 

abnormal studies of claimant's neck. Claimant's attending 

neurosurgeon reported on December 11, 1996 that his symptoms 

"resulted" from the accident and opined that claimant would be 

"disabled . . . for at least a year." Claimant testified that he 

had not "been released by the doctor yet [a]nd . . . still had 
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severe problems." Such evidence provides sufficient support for 

the commission's factual finding that the accident caused both 

the disputed injury and disability. 

 Employer next contends that the commission erroneously 

computed claimant's average weekly wage, arguing that he worked 

as an independent contractor, rather than an employee, when 

driving on commission. "Average weekly wage" includes "[t]he 

earnings of the injured employee in the employment in which he 

was working at the time of the injury." Code § 65.2-101(1)(a). 

However, earnings as an independent contractor generally cannot 

be combined with income from employment to calculate average 

weekly wage. See Intermodal Servs., Inc. v. Smith, 234 Va. 596, 

600, 364 S.E.2d 221, 223 (1988). Determination by the commission 

of average weekly wage constitutes a factual finding. See

Chesapeake Bay Seafood House v. Clements, 14 Va. App. 143, 146, 

415 S.E.2d 864, 866 (1992) (citations omitted). 

 "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." Intermodal Servs., 234 Va. at 600, 

364 S.E.2d at 223 (citation omitted). 

 Generally, "a person is an employee if he 

works for 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 right of control 

is the determining factor in ascertaining" 

whether one is an employee or not. This 

right of control includes "the power to 

specify the result to be attained [and] the 

power to control 'the means and methods by 

which the result is to be accomplished.'" A 
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person is an employee if the person for whom 

he or she is working "has the power to direct 

the means and methods by which [he or she] 

does the work." 

Metropolitan Cleaning Corp., Inc. v. Crawley, 14 Va. App. 261, 

264-65, 416 S.E.2d 35, 37-38 (1992) (en banc) (citation omitted) 

(alterations in original). 

 On the instant record, the commission correctly found "that 

the claimant [on commission] was subject to the control of 

[employer] both as to the result achieved, i.e. transporting 

passengers from one location to another, and the means and 

methods of transporting them, i.e. using [employer's] cab, in the 

same manner that he used it when on salary."1

 Although claimant 

could "pick" his hours of commission work, he was required to 

provide his services at the direction of employer, as an employee 

at will, albeit on different terms of payment. Thus, credible 

evidence supports the commission's inclusion of claimant's net 

earnings on commission in his average weekly wage before 

computing the related benefit. 

 Accordingly, we affirm the decision of the commission. 

 Affirmed.

 

 1Moreover, the evidence does not establish that claimant "is 

excluded from taxation by the Federal Unemployment Tax Act," a 

circumstance which removes "[a]ny taxicab . . . driver from the 

statutory definition of "[e]mployee." Code § 65.2-101.