COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Felton 

Argued at Richmond, Virginia 

FRANK AUSTIN DARBY 

 MEMORANDUM OPINION* BY 

v. Record No. 2101-02-2 JUDGE WALTER S. FELTON, JR. 

 JUNE 24, 2003 

ALLEN W. HARVEY, T/A IVY HILL FARM, 

 IVY HILL DEVELOPMENT COMPANY, INC., AND 

 UNINSURED EMPLOYER'S FUND 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Robert L. Flax (Flax and Stout, on briefs), 

for appellant. 

 Linda D. Frith (E. Albion Armfield; Frith, 

Anderson and Peake, P.C., on brief), for 

appellees Allen W. Harvey, t/a Ivy Hill 

Farm, and Ivy Hill Development Company, Inc. 

 John J. Beall, Jr., Senior Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee Uninsured Employer's 

Fund. 

 Frank Darby appeals a decision of the Workers' Compensation 

Commission denying him benefits for an injury sustained to his 

left leg while working at Allen Harvey's private residence. 

Darby contends on appeal that the commission erred in 

determining that (1) he was an independent contractor; (2) if he 

was deemed an employee rather than an independent contractor, he 

was an employee of Harvey and not Ivy Hill Development 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
Corporation; and (3) Harvey was exempt as an employer from the 

Workers' Compensation Act. We affirm the commission's decision. 

I. BACKGROUND

On appeal, "[d]ecisions of the commission as 

to questions of fact, if supported by 

credible evidence, are conclusive and 

binding on this Court." Manassas Ice & Fuel 

Co. v. Farrar, 13 Va. App. 227, 229, 409 

S.E.2d 824, 826 (1991) (citing Code 

§ 65.1-98; McCaskey v. Patrick Henry Hosp., 

225 Va. 413, 415, 304 S.E.2d 1, 2 (1983)). 

[Footnote omitted.] "The fact that contrary 

evidence may be found in the record is of no 

consequence if credible evidence supports 

the commission's finding." Id. (citing 

Russell Loungewear v. Gray, 2 Va. App. 90, 

95, 341 S.E.2d 824, 826 (1986)). We view 

the evidence in the light most favorable to 

the party prevailing below. Creedle Sales 

Co. v. Edmonds, 24 Va. App. 24, 26, 480 

S.E.2d 123, 124 (1997). 

County of Henrico Police v. Medlin, 37 Va. App. 756, 759-60, 561 

S.E.2d 60, 61 (2002). 

A. THE INJURIES

 On December 17, 1998, Frank Darby broke the fibula and 

tibia in his left leg when it was caught between the wheel and 

the fender of the tractor he was using to scrape Allen Harvey's 

driveway. Harvey owned the tractor. Darby underwent several 

surgical procedures as a result of his injury. His medical 

records reflect that his work related and non-work related 

injuries rendered him disabled to work. 

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B. EVIDENCE REGARDING EMPLOYMENT STATUS

 In 1995 or early 1996, Harvey engaged Darby to perform 

maintenance and other odd jobs at his home in Forest, Virginia, 

as well as at his Smith Mountain Lake home.1 Occasionally Darby 

performed similar work at Harvey's real estate office, Ivy Hill 

Realty Company, Inc. 

 According to Darby, the business relationship began when he 

approached Harvey about obtaining firewood from fallen trees 

located on Harvey's property. Darby gave Harvey a "Darby 

Brother's Cleaning Service" business card that referred to lawn 

care and piecework. Harvey subsequently asked Darby if he could 

help him if he was needed. Darby began upkeep of Harvey's 

residences and occasionally the property of the real estate 

office.2

 According to Darby, "whenever [Harvey] wanted me to do 

something, he would always meet me out when I first go to work 

in the mornings, he'd meet me out there and tell me what he 

wanted me to do first . . . ." Darby's duties included raking 

leaves, mowing, cleaning gullies and ditches, and occasionally 

assisting the maintenance crew at the golf course owned by 

 1

 Approximately eighty-five to ninety percent of the work 

performed by Darby was at Harvey's residence. 

2

 In 1997, Harvey intermittently used another landscaping 

company to assist in the maintenance of the properties. 

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Harvey.3 Occasionally he was asked to clean inside the office of 

Ivy Realty Company. Darby indicated that he used Harvey's lawn 

care tools, mowers, truck and tractors. However, Darby also 

supplied and used his own tools such as power saws, a bush hog, 

hoes, rakes, shovels, and his truck. 

 Although Darby was informed of the tasks that needed to be 

completed, he acknowledged that it was left up to him to decide 

how the tasks would be accomplished. Harvey did not supervise 

Darby's work. However, on occasion he would work with Darby. 

At the deputy commissioner's hearing, Darby testified that he 

set his own schedule, hours, and kept his own time records. 

Furthermore, if he had something else to do, he might decide not 

to work that day. Darby also did work for others. He provided 

lawn care for others and cleaning services for multiple 

businesses. In addition, up until 1997, Darby was employed by 

Richmond Security Corporation. 

 Ivy Hill Development Corporation was a "shell corporation." 

According to Harvey, the corporation never took any tax 

deductions. It never conducted any trade or business, never had 

an office, never had a payroll, never had income or losses 

necessitating the payment of taxes, and had four unpaid board 

members. The only source of funds for the Ivy Hill Development 

Corporation was from Harvey's personal assets. He used the 

 3

 Harvey sold the golf course in May 1996. 

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funds in the corporation's checking account to pay personal 

expenses. 

 One of those personal expenses included payment to Darby 

for services rendered. Darby was paid seven dollars per hour 

and paid by check from the account of Ivy Hill Development 

Corporation. The check stubs contained Harvey's handwritten 

notations reflecting that payment was for "labor, fuel, and 

equipment" and occasionally for "labor, equipment, and 

supplies." 

 On his 1995 and 1996 federal income tax forms, Darby 

indicated that he was self-employed. In 1998, Darby received 

from Harvey a federal 1099 form (non-employee compensation). 

C. PROCEDURAL HISTORY

 At two hearings, on June 14, 2000 and May 9, 2001, Deputy 

Commissioner Herring heard evidence in this case. On November 

26, 2001, he issued an opinion that found Darby was an employee 

of Ivy Hill Development Corporation and not an independent 

contractor. Furthermore, Deputy Commissioner Herring found that 

Darby had suffered a compensable injury and was disabled. Darby 

was awarded workers' compensation benefits. 

 Harvey and the Uninsured Employer's Fund appealed the 

decision to the full commission. On July 19, 2002, the 

commission reversed the deputy commissioner's findings. It 

determined that Darby was an independent contractor and not an 

employee. Additionally, the commission found that if Darby were 

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considered an employee, he was an employee of Harvey and not Ivy 

Hill Development Corporation. Harvey did not possess the 

requisite number of employees, three, to fall within the purview 

of the Workers' Compensation Act. See Code § 65.2-101. 

Therefore, Darby was not entitled to an award of benefits. 

Darby appeals the commission's decision. 

II. ANALYSIS

 We first consider whether the commission erred in 

determining that Darby was an independent contractor. What 

constitutes an employee or independent contractor is a question 

of law, but whether the facts bring a person within the law's 

designation is usually a question of fact. See Stonega Coke & 

Coal Co. v. Sutherland, 136 Va. 489, 494, 118 S.E. 133, 134 

(1923). On appeal, legal questions are subject to de novo

review. However, we must give deference to any factual finding 

made by the commission. See Code § 65.2-706(A); Stenrich Group 

v. Jemmott, 251 Va. 186, 192, 467 S.E.2d 795, 798 (1996); 

Sinclair v. Shelter Const. Corp., 23 Va. App. 154, 156-57, 474 

S.E.2d 856, 857-58 (1996). 

Whether the existing status is that of an 

employee or that of an independent 

contractor is governed, not by any express 

provision of the workmen's compensation law, 

but by the common-law. Crowder v. Haymaker, 

164 Va. 77, 79, 178 S.E. 803. No hard and 

fast rule can be laid down for ascertaining 

whether the status is one or the other. It 

must be determined from the facts of the 

particular case in the light of well settled 

principles. 

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Hann v. Times-Dispatch Publ'g. Co., 166 Va. 102, 105-06, 184 

S.E. 183, 184 (1936). "Independent contractors or 

subcontractors are 'not countable as employees within the 

meaning of the Workmen's Compensation Act . . . . [T]he Act 

applies to the contractual relationship of master and servant.'" 

Richmond Newspapers, Inc. v. Gill, 224 Va. 92, 97, 294 S.E.2d 

840, 843 (1982) (quoting Stover v. Ratliff, 221 Va. 509, 511, 

272 S.E.2d 40, 42 (1980)). 

As a general rule, 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 power of 

control is the most significant indicium of 

the employment relationship; other factors 

merely help to elucidate the manner and 

degree of control. 

But an employer-employee relationship exists 

only if the control reserved includes the 

power to control, not only the result to be 

accomplished, but also the means and methods 

by which the result is to be accomplished. 

"If under the contract the party for whom 

the work is being done may prescribe not 

only what the result shall be, but also 

direct the means and methods by which the 

other shall do the work, the former is an 

employer, and the latter an employee. But 

if the former may specify the result only, 

and the latter may adopt such means and 

methods as he chooses to accomplish that 

result, then the latter is not an employee, 

but an independent contractor. So the 

master test is the right to control the 

work . . . ." 

Gill, 224 Va. at 98, 294 S.E.2d at 843 (quoting Craig v. Doyle, 

179 Va. 526, 531, 19 S.E.2d 675, 677 (1942)). 

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 In the instant case, there is credible evidence supporting 

the commission's finding that Darby was an independent 

contractor and not an employee. Darby began performing 

maintenance and other odd jobs for Harvey in 1995 or early 1996. 

When Darby initially approached Harvey about obtaining work, he 

provided a "Darby Brother's Cleaning Service" business card that 

referred to lawn care and piecework. For taxable years 1995 and 

1996, Darby indicated that he was self-employed. 

 At the hearing before Deputy Commssioner Herring, Darby 

testified that Harvey gave him general instructions about 

performing yard maintenance and other odd jobs. However, he 

acknowledged that it was up to him to decide how the tasks would 

be accomplished. Harvey did not supervise Darby's work. 

According to Darby, Harvey would inform him of what needed to be 

done and might not see him for extended periods of time 

thereafter. 

 Darby further testified that he set his own schedule, 

hours, and kept his own time records. He was permitted to do 

work for others if he so desired, and he advised Harvey whether 

or not he would be working. When performing his work, he not 

only used tools provided by Harvey, but he also used many of his 

own tools to complete his tasks. 

 Based on these facts, it is apparent that Harvey specified 

the result only and Darby maintained the right to control the 

work. See Gill, 224 Va. at 98, 294 S.E.2d at 843. There was 

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credible evidence to support the commission's finding that Darby 

was an independent contractor, not an employee. Since Darby was 

an independent contractor, and therefore not within the scope of 

the Workers' Compensation Act, we need not consider the other 

issues on appeal. The decision of the commission is affirmed. 

 Affirmed.

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