COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

GEORGE PHILLIP THOMAS 

 MEMORANDUM OPINION*

v. Record No. 0896-97-3 PER CURIAM 

 SEPTEMBER 9, 1997 

 

RICHARDSON BUILDERS, INC. and 

 SOUTHERN INSURANCE COMPANY 

 OF VIRGINIA 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Philip B. Baker; Joseph A. Sanzone 

Associates, on brief), for appellant. 

 (Cathie W. Howard; Pierce & Howard, on 

brief), for appellees. 

 George P. Thomas (claimant) contends that the Workers' 

Compensation Commission erred in finding that he was an 

independent contractor rather than an employee of Richardson 

Builders, Inc. (employer) at the time of his October 1, 1994 

injury by accident. Upon reviewing the record and the briefs of 

the parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the commission's decision. Rule 

5A:27. 

 "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." Baker v. Nussman, 152 Va. 293, 298, 

147 S.E. 246, 247 (1929). Generally, an individual "'is an 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

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.'" Behrensen v. Whitaker, 10 Va. App. 364, 367, 392 

S.E.2d 508, 509-10 (1990) (quoting Richmond Newspapers, Inc. v. 

Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843 (1982)). See also

Stover v. Ratliff, 221 Va. 509, 512, 272 S.E.2d 40, 42 (1980). 

The employer-employee relationship exists if the power to control 

includes not only the result to be accomplished, but also the 

means and methods by which the result is to be accomplished. 

Behrensen, 10 Va. App. at 367, 392 S.E.2d at 510. Unless we can 

say as a matter of law that claimant's evidence sustained his 

burden of proving that he worked for employer as an employee 

rather than an independent contractor, the commission's findings 

are binding and conclusive upon us. See Tomko v. Michael's 

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 In holding that an employee-employer relationship did not 

exist between claimant and employer, the commission found as 

follows: 

 The issue in this case is whether 

the employment relationship ended 

on September 22, 1994, as alleged 

by Mr. Richardson. This becomes an 

issue of credibility. Mr. 

Richardson's testimony that the 

claimant terminated the exclusive 

employment relationship to work as 

an independent contractor is 

corroborated by his payroll 

records. The claimant's testimony 
 3 

is corroborated to some extent by 

two co-workers, who testified that 

the claimant worked with them up 

until the time of the accident, and 

they were unaware of any change in 

his status. However, the testimony 

of one of these employees was 

equivocal in terms of whether the 

claimant was definitely working on 

the Friday before the accident, and 

both witnesses were incorrect about 

the date of the accident in their 

initial statements. Although we 

are somewhat troubled by the 

finding that the claimant changed 

his status from employee to 

independent contractor while 

working at the same house (Number 

15), nonetheless we are persuaded 

by Mr. Richardson's testimony. 

 In its role as fact finder, the commission accepted 

Richardson's testimony and rejected the testimony of claimant and 

his two co-workers with regard to claimant's employment status. 

It is well settled that credibility determinations are within the 

fact finder's exclusive purview. See Goodyear Tire & Rubber Co. 

v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). 

Richardson's testimony, which was corroborated by the payroll 

records, supports the commission's finding that claimant was not 

an employee under the Workers' Compensation Act. Accordingly, we 

cannot say as a matter of law that claimant's evidence sustained 

his burden of proof. 

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

 Affirmed.