COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Humphreys and Senior Judge Overton 

STEPHEN M. MASSARO 

 MEMORANDUM OPINION*

v. Record No. 3062-02-1 PER CURIAM 

 MARCH 25, 2003 

BLUE CHIP PAINTING AND 

 PRINCETON INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (David A. Buzard; Bennett and Zydron, P.C., 

on brief), for appellant. 

 (Allen Lotz; Huff, Poole & Mahoney, P.C., on 

brief), for appellees. 

 Stephen M. Massaro contends the Workers' Compensation 

Commission erred in finding that he was an independent 

contractor rather than an employee of Blue Chip Painting. Upon 

reviewing the record and the parties' briefs, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

the commission's decision. Rule 5A:27. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

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

denying Massaro's application, the deputy commissioner found as 

follows: 

 

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

designated for publication. 
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 From all the evidence, we conclude that 

[Massaro] has not borne his burden to prove 

that he was an employee. The evidence is 

almost in [equipoise] on this point, with 

certain facts tending to show an 

employer/employee relationship and other 

facts tending to indicate a 

contractor/independent contractor 

relationship. We find that [Massaro] was to 

be paid "by the job", not by the day. We 

also find that [Massaro] held himself out to 

[Joseph] Knehr[, the owner of Blue Chip,] as 

the proprietor of S.M.S.A. Painting 

Contractors. While Knehr retained the right 

to dictate the result to be achieved, it is 

not clear to us that he retained the right 

to control the means and methods of the 

work, despite Knehr having instructed 

[Massaro] to prime bare wood before applying 

paint. We think that the parties intended 

their relationship to be one of 

contractor/subcontractor rather than 

employer/employee. 

 Affirming the deputy commissioner's decision, the 

commission found as follows: 

[W]e find that [Massaro] has described an 

employment relationship. [He] testified 

that . . . Knehr exerted a significant 

degree of control over him by dictating the 

hours he was to work and the materials he 

was to use. [Massaro] also denied that he 

was allowed to hire an assistant to help him 

with the job. All of these factors, if 

true, support the existence of an 

employee/employer relationship. 

 However, . . . Knehr's description of 

his relationship with [Massaro] differs 

greatly from that described by [Massaro]. 

. . . Knehr testified that he contracted 

with [Massaro] to complete one particular 

project for a set price, regardless of how 

long it took [Massaro] to paint the house. 

He also testified that he had never worked 

with [Massaro] before this particular job. 

In addition, . . . Knehr denied that he 
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"controlled" [Massaro's] day-to-day 

activities by dictating the hours to be 

worked by [Massaro], by requiring [Massaro] 

to use his equipment, or by prohibiting 

[Massaro] from using an assistant. We find 

that the combination of these factors, if 

true, support the conclusion that [Massaro] 

was an independent contractor of Blue Chip 

Painting rather than an employee. 

 The deputy commissioner implicitly 

found . . . Knehr's testimony to be more 

credible than that of [Massaro], and we 

accept his conclusion in this regard. 

 Massaro contends the commission erred, as a matter of law, 

by ruling that the deputy commissioner "implicitly found" 

Knehr's testimony to be more credible than Massaro's testimony. 

He argues the deputy commissioner made no explicit findings 

concerning the credibility of the witnesses. We disagree. 

 The commission found that Massaro's testimony, if accepted, 

supported his contention that he was an employee. On the other 

hand, Knehr's testimony, if accepted, supported his contention 

that Massaro was an independent contractor. Although the deputy 

commissioner found the evidence was "almost" in equipoise, he 

ruled in favor of Blue Chip. The only witnesses who testified 

at the hearing were Massaro and Knehr. In other words, the 

deputy commissioner found, upon his review of the disputed 

evidence, that he believed Knehr's testimony. Thus, credible 

evidence supports the commission's conclusion that the deputy 

commissioner implicitly found Knehr's testimony to be more 

credible than Massaro's testimony. 
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 Moreover, the commission weighed the evidence, which 

presented substantial conflicts, and found in favor of Blue 

Chip. "We are bound by that factual finding." Grove v. Allied 

Signal, Inc., 15 Va. App. 17, 19, 421 S.E.2d 32, 33 (1992). The 

commission's resolution of the factual discrepancies between the 

testimony of Massaro and Knehr is not reviewable by this Court. 

"Matters of weight and preponderance of the evidence, and the 

resolution of conflicting inferences fairly deducible from the 

evidence, are within the prerogative of the commission and are 

conclusive and binding on the Court of Appeals." Kim v. 

Sportswear, 10 Va. App. 460, 465, 393 S.E.2d 418, 421 (1990) 

(citation omitted). Based upon the commission's factual 

determination upon conflicting evidence, we cannot find as a 

matter of law that Massaro's evidence sustained his burden of 

proof. 

 For these reasons, we affirm the commission's decision. 

Affirmed.