COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

ROBERT LEE THACKER 

 MEMORANDUM OPINION* BY 

v. Record No. 3111-99-4 JUDGE LARRY G. ELDER 

 JULY 11, 2000 

TNT INSULATIONS COMPANY/ALICE JOAN THACKER AND 

 HARTFORD UNDERWRITERS INSURANCE COMPANY 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Elliot P. DeMatteis (Suzanne B. Simpson; 

Timothy J. McEvoy; Bean, Kinney & Korman, on 

brief), for appellant. 

 S. Vernon Priddy III (Sands, Anderson, 

Marks & Miller, on brief), for appellees. 

 Robert Thacker (claimant) appeals from a decision of the 

Workers' Compensation Commission (commission) holding that he 

was an independent contractor and was not entitled to disability 

benefits from TNT Insulations Company and its insurer, Hartford 

Underwriters Insurance Company. On appeal, he contends the 

commission erred in concluding he was not a covered employee 

within the meaning of the Workers' Compensation Act (the Act) 

and in failing to reach three additional issues mooted by the 

commission's ruling on his employee status. TNT includes two 

issues for cross-appeal. First, if this Court adopts the deputy 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 
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commissioner's conclusion that claimant was covered under the 

Act as a partner, TNT contends that claimant's lack of timely 

notice to the insurer bars his recovery. Second, TNT contends 

that the commission wrongly held the Act does not require a 

claimant to specify the subsection of Code § 65.2-101 under 

which he claims coverage. We hold that, in the absence of an 

order from the commission or specific interrogatory from the 

employer or insurer under Commission Rules 1.11 or 1.8 

respectively, the Act does not require a claimant to specify the 

portion of Code § 65.2-101 under which he claims coverage. We 

also hold that claimant was an employee under that code section 

as a matter of law. Therefore, we reverse the commission's 

denial of benefits and remand for further proceedings consistent 

with this opinion. 

A. 

DUTY TO ASSERT BASIS FOR CLAIM OF EMPLOYEE STATUS 

 As a threshold issue, the insurer contends claimant was 

required before the deputy commissioner to specify the 

particular subsection of Code § 65.2-101's definition of 

employee (1(a) to (q)) under which he claimed employee status. 

The commission held that such specification was not necessary, 

and we agree. A claimant seeking benefits bears the burden of 

proving he is an employee within the definition of Code 

§ 65.2-101. See Behrensen v. Whitaker 10 Va. App. 364, 366, 392 

S.E.2d 508, 509 (1990). However, nothing in that code section 
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or any other portion of the Act requires the employee to elect 

the subsection or subsections under which he claims coverage. 

All the Act requires is that the claimant's evidence establish 

an entitlement to coverage. 

 Commission Rule 1.11 permits the commission to "require a 

prehearing statement by the parties as to the particulars of a 

claim and the grounds of defense." Pursuant to Commission Rule 

1.8(H), an employer or insurer is free to propound 

interrogatories to a claimant seeking the basis for his claim 

that he is a covered employee under Code § 65.2-101. However, 

nothing in this record indicates that either the commission or 

the insurer queried claimant about the subsection or subsections 

of Code § 65.2-101 under which he claimed employee status. 

Therefore, the commission did not err in holding the deputy 

commissioner properly evaluated claimant's status as an employee 

under all subsections. 

B. 

COVERAGE AS EMPLOYEE UNDER CODE § 65.2-101 

 The Act provides, in relevant part, that an employee 

entitled to coverage under the Act includes "[e]very person, 

including a minor, in the service of another under any contract 

of hire or apprenticeship, written or implied, except . . . one 

whose employment is not in the usual course of the trade, 

business, occupation or profession of the employer." Code 

§ 65.2-101. A claimant seeking benefits under the Act bears the 
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burden of proving he is an employee within the definition of 

Code § 65.2-101. See Behrensen, 10 Va. App. at 366, 392 S.E.2d 

at 509. "'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., Inc. v. Smith, 234 Va. 596, 600, 364 S.E.2d 221, 224 

(1988) (quoting Baker v. Nussman, 152 Va. 293, 302, 147 S.E. 

246, 249 (1929)). The commission's findings of fact on this 

issue are binding and conclusive upon us if supported by 

credible evidence. See Tomko v. Michael's Plastering Co., 210 

Va. 697, 699, 173 S.E.2d 833, 835 (1970). However, if 

claimant's evidence proved as a matter of law that he was an 

employee of TNT rather than an independent contractor at the 

time of his accident, we must reverse. See id.

 "[W]hether a person is an employee or independent 

contractor 'is governed not by any express provision of the 

[workers'] compensation law, but by the common-law.'" Richmond 

Newspapers v. Gill, 224 Va. 92, 97, 294 S.E.2d 840, 843 (1982) 

(quoting Hann v. Times-Dispatch Pub. Co., 166 Va. 102, 105, 184 

S.E. 183, 184 (1936)). "[F]our elements . . . are considered: 

(1) Selection and engagement of the servant; (2) payment of 

wages; (3) power of dismissal; and (4) the power of control of 

the servant's action." Crowder v. Haymaker, 164 Va. 77, 79, 178 

S.E. 803, 804 (1935). The power of control which is 

determinative is the power to control not only the result to be 
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obtained but also "the means and methods by which the result is 

to be accomplished." Gill, 224 Va. at 98, 294 S.E.2d at 843. 

If the alleged employee "is free to adopt such means and methods 

as he chooses to accomplish the result, he is not an employee 

but an independent contractor." Virginia Employment Comm'n v. 

A.I.M. Corp., 225 Va. 338, 347, 302 S.E.2d 534, 540 (1983). 

 "The extent of the reserved right of control," the critical 

factor in assessing employee status, "may be determined by 

examining the performance of the parties." Smith, 234 Va. at 

601, 364 S.E.2d at 224. Where the record fails to establish 

that the employer had any right to dictate how claimant would 

accomplish the desired result, claimant has failed to meet his 

burden of proof. See Stover v. Ratliff, 221 Va. 509, 512, 272 

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

 Here, although Mrs. Thacker did not, in fact, dictate 

precisely how or during what hours claimant was to obtain and 

complete insulation jobs, the evidence as a whole establishes 

indicia of a retained power of control sufficient to compel the 

conclusion that claimant was an employee as a matter of law. 

Claimant had no employment contract, placing him in the legal 

status of an at-will employee who could be fired at any time for 

any reason or no reason. See Gill, 224 Va. at 100, 294 S.E.2d 

at 844. That claimant was Mrs. Thacker's husband and perhaps 

not likely to have been fired is not dispositive of his legal 

status in relation to the company. Further, the commission 
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noted the uncontradicted evidence that claimant was paid wages 

for his work. TNT withheld taxes from these wages, paid 

claimant's workers' compensation premiums and union dues, and 

issued claimant a W-2 Form for each tax year. 

 Finally, the evidence indicated other ways in which TNT 

retained control over the means by which the result would be 

achieved. Unlike the independent contractor in Gill, who 

purchased and delivered newspapers to customers in whatever 

manner he saw fit, see 224 Va. at 99, 294 S.E.2d at 844, TNT 

provided claimant with a vehicle in which to perform his work, 

and TNT, not claimant, insured the vehicle. Unlike Gill, who 

bought his own supplies, see 224 Va. at 101, 294 S.E.2d at 845, 

claimant purchased supplies in the name of TNT, and the supplies 

were charged to TNT's account. Mrs. Thacker included the cost 

of these supplies on the Schedule C Statement of Profit and Loss 

for the company, which she filed with her income taxes each 

year. TNT, via owner Mrs. Thacker, received payment for all 

work done by claimant on TNT's behalf, and unlike Gill, 224 Va. 

at 99, 294 S.E.2d at 844, the record contains no evidence that 

claimant bore any risk of loss from a customer's non-payment. 

Finally, claimant testified that when he worked for another 

company, he gave the payment he received to Mrs. Thacker for 

deposit in the TNT company account. 

 Although Mrs. Thacker may have been unfamiliar with the 

finer details of insulation work, the above evidence belies the 
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commission's conclusion that she had no power of control over 

the means by which the result sought by the company was to be 

accomplished. Her mere inability to exercise certain aspects of 

her power based on lack of knowledge is insufficient to rebut 

the indicia of retained power demonstrated by the factors 

outlined above. Therefore, under the facts of this case, we 

hold, as a matter of law, that claimant was an employee within 

the meaning of Code § 65.2-101. 

 Because we hold claimant was a covered employee, we need 

not consider the parties' remaining assignments of error. We 

reverse the commission's decision denying benefits and remand 

for further proceedings consistent with this opinion. 

Reversed and remanded.