COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata 

Argued at Salem, Virginia 

JAMES GRANT WHITLOCK 

 OPINION BY 

v. Record No. 3072-96-3 JUDGE JOHANNA L. FITZPATRICK 

 SEPTEMBER 2, 1997 

WHITLOCK MECHANICAL/CHECK SERVICES, INC. 

 and PENNSYLVANIA MANUFACTURERS' 

 ASSOCIATION INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Rhonda L. Overstreet (Gary L. Lumsden; 

Lumsden & Overstreet, on brief), for 

appellant. 

 Paul C. Kuhnel (Wooten & Hart, P.C., on 

brief), for appellees. 

 

 The issue in this appeal is whether James G. Whitlock 

(claimant) was, at the time of his injury, a sole proprietor who 

qualified as an "employee" and thus was entitled to workers' 

compensation benefits under Code § 65.2-101(1)(n). Claimant 

argues that the Workers' Compensation Commission erred in finding 

that he was an independent contractor who failed to properly 

elect coverage pursuant to Code §§ 65.2-305 and 65.2-101(1)(n) 

and that he was not entitled to benefits as a sole proprietor 

under these code sections. For the reasons that follow, we find 

no error and affirm the judgment of the commission.1

 

 1Employer also contends that the deputy commissioner erred 

by failing to take judicial notice of certain insurance 

provisions. However, we do not address this issue, as we affirm 

on other grounds. 
 2 

 

I. BACKGROUND 

 On October 17, 1994, claimant fell and broke his leg and 

ankle during the course of his employment. At the time of his 

injury, claimant was a sole proprietor, trading as "Whitlock 

Mechanical," who engaged in the business of providing heating and 

air conditioning services. Claimant had procured the job from a 

custom builder. The job involved installing an air conditioner 

in the ceiling of a new home. 

 During that period, claimant had a business relationship 

with an entity called Check Services, Inc.2

 (Check). For a small 

fee, Check performed various tasks for claimant. Check withheld 

claimant's state and federal taxes, performed payroll services, 

and occasionally referred claimant jobs in his field. The nature 

of Check's business was unrelated to the heating and air 

conditioning trade; rather, it was a "leasing" company that was 

"essentially a bookkeeping service." 

 Pennsylvania Manufacturers' Association Insurance Company 

(PMA) provided workers' compensation coverage for Check. 

Following his injury, claimant applied for workers' compensation 

medical benefits through PMA. By letter dated August 2, 1995, 

PMA denied claimant's workers' compensation claim, stating that 

claimant was "not technically an employee of [the] insured, Check 

Services." 

 2Check Services, Inc. went out of business in December 1994. 

 
 3 

 A hearing regarding claimant's coverage by PMA was held on 

May 9, 1996 before a deputy commissioner. Claimant described the 

relationship between his company and Check in the following 

terms: "Hunt Financial and Check Services, I work for them. And 

the[] way I did that is she took out my Workmen's Comp. 

[premiums] and she took out my federal and state income tax." 

Claimant explained that a representative from Check told him that 

Check Services was a "leasing company." 

 Claimant further testified that Whitlock Mechanical was a 

sole proprietorship, and that he, trading as Whitlock Mechanical, 

had no other employees. He indicated that at the time he was 

injured, he "just worked for [him]self" and was in "control at 

the jobsite." Finally, he admitted that he did not fill out or 

sign any document that he understood to be an application for 

workers' compensation insurance and that he did not make a 

specific election for coverage under Code §§ 65.2-305 and 

65.2-101(1)(n). 

 Mike Stafford, an account claims executive with PMA, also 

testified at the hearing. He reviewed the PMA insurance policy 

and stated that "the coverage for Check Services, Inc. would be 

to all officers or employees of Check Services." He further 

testified that the policy covered only the "named insured" and 

that claimant was not covered under this policy because "he was 

not an employee of Check Services but that he was a sole 

proprietor and that he had control over his work product, and for 
 4 

that reason was not [an] employee." 

 By opinion dated May 10, 1996, the deputy commissioner found 

that claimant was "covered under Check Services' policy" and that 

"the claimant contracted with Check Services, Inc. for very 

specific reasons, reasons which included workers' compensation 

coverage." In reaching this decision, the deputy commissioner 

specifically referred to the certificate of insurance produced by 

claimant "which indicated that 'WHITLOCK MECHANICAL' had 

'WORKERS' COMPENSATION' coverage under Check Services' policy at 

the time of the accident." 

 However, upon review, the full commission determined that 

claimant was an independent contractor, not an employee of Check, 

and reversed the deputy commissioner's decision. Additionally, 

the commission found that claimant operated Whitlock Mechanical 

as a sole proprietor and as such did not come within the purview 

of the Workers' Compensation Act. 

 Although the commission confirmed that Check occasionally 

obtained contracts for air conditioning services for Whitlock 

Mechanical to perform, provided bookkeeping services for 

claimant, collected money for work performed by claimant, 

deposited state and federal taxes on behalf of claimant, and 

issued checks to claimant, the commission found that Check 

exercised no control over claimant or his work. The commission 

concluded as follows: 

 PMA covered only the employees of the 

independent contractor, Whitlock Mechanical, 

and [] this was the purpose of the 
 5 

certificate. The claimant himself, as an 

independent contractor, could not be a 

statutory employee of another contractor, nor 

of Check Services, Inc. Only Whitlock 

Mechanical's employees, had there been any, 

would qualify as statutory employees 

(§ 65.2-302, Code of Virginia).3

 We find no contract of employment 

between Check Services, Inc. and the claimant 

. . . . We find insufficient evidence that 

 3Code § 65.2-302 provides, in pertinent part, as follows: 

 A. When any person . . . undertakes to 

perform or execute any work which is a part 

of his trade, business or occupation and 

contracts with any other person . . . for the 

execution or performance by or under such 

subcontractor of the whole or any part of the 

work undertaken by such owner, the owner 

shall be liable to pay to any worker employed 

in the work any compensation under this title 

he would have been liable to pay if the 

worker had been immediately employed by him. 

 B. When any person . . . contracts to 

perform or execute any work for another 

person which work or undertaking is not a 

part of the trade, business or occupation of 

such other person and contracts with any 

other person . . . for the execution or 

performance by or under the subcontractor of 

the whole or any part of the work undertaken 

by such contractor, then the contractor shall 

be liable to pay to any worker employed in 

the work any compensation under this title 

which he would have been liable to pay if 

that worker had been immediately employed by 

him. 

 C. When the subcontractor in turn 

contracts with still another person . . . for 

the performance or execution by or under such 

last subcontractor of the whole or any party 

of the work undertaken by the first 

subcontractor, then the liability of the 

owner or contractor shall be the same as the 

liability imposed by subsections A and B of 

this section. 
 6 

the claimant himself has elected to be 

covered under the PMA policy . . . . Such an 

election is provided by [Code § 65.2-305], 

but it is clear that this [s]ection 

contemplates the employer itself directly 

applying with an insurance carrier for such 

insurance and being specifically a named 

insured [Code § 65.2-101(1)(n)]. In this 

case, the claimant attempts to establish 

coverage through the policy issued to another 

insured. His effort fails for the reasons 

set forth above. 

(Emphasis added). 

II. INDEPENDENT CONTRACTOR v. EMPLOYEE 

 It is undisputed that at the time of his injury, claimant 

was a sole proprietor. However, on appeal, claimant argues that 

the commission erred in finding that he was an independent 

contractor rather than an employee of Check. 

 A sole proprietor . . . is not 

necessarily an independent contractor. A 

sole proprietor may have employees who are 

subject to the act. A sole proprietor may 

also elect to be an employee covered by the 

act. Whether a sole proprietor who does not 

so elect is an employee or an independent 

contractor depends upon the nature of the 

relationship, particularly whether the person 

who hires him or her retains the right to 

control the work to be performed. Whether 

such a person is an employee under the act is 

usually a question of fact. 

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

265, 416 S.E.2d 35, 38 (1992) (emphasis added) (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.' The worker's status 

'must be determined from the facts of the particular case in the 
 7 

light of well settled principles.'" 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), and 

Brown v. Fox, 189 Va. 509, 516, 54 S.E.2d 109, 113 (1949)). 

 "'On appellate review, we must construe the evidence in the 

light most favorable to the party prevailing below. Factual 

findings by the commission that are supported by credible 

evidence are conclusive and binding upon this Court on appeal.'" 

White Elec. Co., Inc. v. Bak, 22 Va. App. 17, 23, 467 S.E.2d 

827, 830 (1996) (quoting Barnes v. Wise Fashions, 16 Va. App. 

108, 109, 428 S.E.2d 301, 301-02 (1993)); see also Celanese 

Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 

(1990). 

 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 the 

parties' status in an analysis of an 

employment relationship. And the right of 

control includes not only the power to 

specify the result to be attained, but the 

power to control "the means and methods by 

which the result is to be accomplished." 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. "[I]f 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." 

Intermodal Servs., 234 Va. at 601, 364 S.E.2d at 224 (citations 

omitted). 
 8 

 

 In the instant case, the record clearly established that 

Check exercised no control over claimant or his work. Check 

primarily provided unrelated administrative services for 

claimant. Check had no contract of employment with claimant. 

Check did not pay claimant a salary or wages nor did it have the 

power to fire him. Claimant maintained exclusive control over 

his work. Accordingly, we find that credible evidence supports 

the commission's determination that claimant was not an employee 

of Check but was an independent contractor. 

III. COVERAGE UNDER THE ACT 

 Additionally, claimant contends that he meets the statutory 

definition of "employee" as set forth in Code § 65.2-101(1)(n) 

and that he elected workers' compensation coverage by entering 

into an employment contract with Check and by paying premiums to 

Check. Claimant also argues that the commission misinterpreted 

Code § 65.2-305.4

 As support for his contention, claimant points 

to Check's policy and the Certificate of Insurance issued by PMA 

identifying Whitlock Mechanical as a covered contractor. 

 It is uncontroverted that claimant was a sole proprietor at 

the time of his injury. A sole proprietor may obtain coverage as 

an "employee" as defined in Code § 65.2-101(1)(n) as follows: 

 Any sole proprietor or all partners of a 

 4Claimant argues that under Code § 65.2-305 he was not 

responsible for notifying PMA of his election for coverage and 

that he was not responsible for "directly apply[ing] to the 

insurance company for coverage." However, claimant cites no 

authority for this proposition. We find no basis to support 

claimant's interpretation of Code § 65.2-305. 
 9 

business electing to be included as an 

employee under the workers' compensation 

coverage of such business if the insurer is 

notified of this election. Any sole 

proprietor or the partners shall, upon such 

election, be entitled to employee benefits 

and be subject to employee responsibilities 

prescribed in this title. 

 When any partner or proprietor is 

entitled to receive coverage under this 

title, such person shall be subject to all 

provisions of this title as if he were an 

employee; however, the notices required under 

§§ 65.2-405 and 65.2-600 of this title shall 

be given to the insurance carrier, and the 

panel of physicians required under § 65.2-603 

shall be selected by the insurance carrier. 

(Emphasis added). Additionally, the provisions of Code 

§ 65.2-305(A) provide: 

 Those employers not subject to this 

title may, by complying with the provisions 

of this title and the applicable rules of the 

Commission, voluntarily elect to be bound by 

it as to accidents or occupational diseases 

or both. 

(Emphasis added). Thus, the crux of the issue is whether 

claimant's actions constituted an "election" under the Act and 

whether the insurer was sufficiently "notified" of his election. 

 It is undisputed that Check was the insured of PMA. As 

stated above, claimant was not an employee of Check and thus was 

not covered under the insurance policy in that capacity. 

Moreover, no evidence in the record proved that claimant 

specifically elected to be covered under the policy as a sole 

proprietor, and no evidence proved that he gave express notice to 

the insurer of his intention to be personally covered. While 
 10 

claimant testified he paid Check to retain workers' compensation 

coverage, he also testified that he never filled out or signed 

any document or form that he understood to be an application for 

workers' compensation insurance. Claimant gave no written notice 

to PMA or to Check that he elected to be covered under workers' 

compensation. Claimant admitted that he dealt only with Check 

personnel up until the time of his injury, and nothing in the 

record indicates that claimant communicated with any agent of PMA 

or any other insurance underwriter for the purpose of electing 

coverage as a sole proprietor. 

 Moreover, the commission stated that "PMA covered only the 

employees of the independent contractor, Whitlock Mechanical, and 

that this was the purpose of the [insurance] certificate." The 

commission found no contract of employment between Check and 

claimant; rather, the commission determined that claimant was a 

customer of Check and that Check provided bookkeeping services 

for claimant and referred work to him occasionally. The 

commission further established that Check was not in the building 

or construction trade, or any business that required services of 

a heating and air conditioning mechanic. The commission 

specifically decided as follows: 

 [There is] insufficient evidence that the 

claimant himself has elected to be covered 

under the PMA policy . . . . Such an election 

is provided by statute [Code § 65.2-305], but 

it is clear that this [s]ection contemplates 

the employer itself directly applying with an 

insurance carrier for such insurance and 

being specifically a named insured [Code 
 11 

§ 65.2-101(1)(n)]. In this case, the 

claimant attempts to establish coverage 

through the policy issued to another insured. 

 His effort fails . . . . 

 Giving deference to the matters coming within the 

cognizance, expertise, and knowledge of the Workers' Compensation 

Commission, Metropolitan Cleaning Corp., Inc., 14 Va. App. at 

265, 416 S.E.2d at 38, and construing the evidence in the light 

most favorable to the employer, who prevailed below, White Elec. 

Co., 22 Va. App. at 23, 467 S.E.2d at 830, we find that claimant 

made no election for coverage as a sole proprietor and provided 

no notice of any such election to the insurer. Thus, we hold 

that claimant was ineligible to receive benefits as an "employee" 

pursuant to Code § 65.2-101(1)(n). 

 For the foregoing reasons, we affirm the decision of the 

commission. 

 Affirmed.