COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Kelsey and Senior Judge Hodges

MUSSO'S TOWING, INC.

MEMORANDUM OPINION*

v. Record No. 1100-03-1 PER CURIAM

SEPTEMBER 9, 2003

STEVE WALL

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(W. Ware Morrison, on brief), for appellant.

(Anthony L. Montagna, Jr.; Montagna &

Montagna, P.C., on brief), for appellee.

Musso's Towing, Inc. (Musso's) contends the Workers'

Compensation Commission erred in finding that Steve Wall

(claimant) was its employee rather than an independent

contractor at the time of his compensable injury by accident on

October 4, 2001. Pursuant to Rule 5A:21(b), claimant raises the

additional questions of whether this Court should (1) order

Musso's to pay claimant's attorney additional attorney's fees

and costs; and (2) assess sanctions against Musso's pursuant to

Code § 8.01-271.1. 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.

 

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

designated for publication.
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I. Employee vs. Independent Contractor

"The Workers' Compensation Act covers employees but not

independent contractors." County of Spotsylvania v. Walker, 25

Va. App. 224, 229, 487 S.E.2d 274, 276 (1997). This distinction

must be determined from the facts of each case, with the burden

upon the person seeking benefits under the Act to prove the

relationship contemplated by the Act. Id. at 229-30, 487 S.E.2d

at 276; see Code § 65.2-101. Although the commission's factual

findings are binding and conclusive on appeal, when they are

supported by credible evidence, see James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989), a

"[d]etermination of the relationship involves a mixed question

of law and fact which is reviewable on appeal." County of

Spotsylvania, 25 Va. App. at 230, 487 S.E.2d at 276.

Generally, an individual "'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.'"

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)).

[T]he 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
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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."

The extent of the reserved right of control

may be determined by examining the

performance of the parties in the activity

under scrutiny.

Intermodal Servs., Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d

221, 224 (1988) (citations omitted).

Musso's sole argument on appeal is that because claimant

was paid by the job for each completed vehicle repair he was an

independent contractor.

In holding that an employee/employer relationship existed

between claimant and Musso's, the commission made the following

findings:

[T]he employer, Dominic Musolino, agreed to

hire the claimant to perform auto repair

work as a "subcontractor," and did not

deduct any employee withholdings from the

claimant's pay. However, the claimant

worked a regular schedule at the employer's

shop and attended to customers that were

sent by Mr. Musolino. The claimant supplied

most, but not all, of the tools, completed

work orders that were provided to him, and

was paid per hour for the jobs. He

testified that he was told what repair work

to perform just like "a regular shop would

do." He also drove the tow truck at night

on an on-call basis. We find this evidence

sufficient to demonstrate that the claimant

was an employee.

Claimant's testimony constitutes credible evidence to

support the commission's finding that he was Musso's employee
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rather than an independent contractor. Claimant testified that

he received work through work orders that were written on

customer's vehicles by Musolino or whoever answered the shop

telephone. Musso's paid claimant $29.50 per hour for the number

of hours he was required to work on each repair. He earned an

average of $600 per week. He worked regular hours from 9:00

a.m. to 5:00 or 6:00 p.m. He also worked some nights as a tow

truck driver for Musso's. He stated that he worked an average

of thirty to fifty hours per week.

The fact finder was entitled to reject those portions of

Musolino's testimony that conflicted with claimant's testimony.

It is well settled that credibility determinations are within

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

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

Furthermore, the manner in which Musso's paid claimant by the

hour for each individual repair job did not necessarily make him

an independent contractor, rather "[i]t merely constituted the

manner of payment and the measure of compensation for his

services . . . ." Jackson v. Haynie's Adm'r, 106 Va. 365, 368,

56 S.E. 148, 149 (1907). "Payment of wages, alone, is not the

determinative factor." Purvis v. Porter Cabs, Inc., 38 Va. App.

760, 773 n.4, 568 S.E.2d 424, 430 n.4 (2002).

Claimant's testimony proved that Musolino reserved the

right to exercise control over the means and methods by which

claimant's work was ultimately accomplished. Musolino admitted
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that if claimant did not have the proper tools to perform a

repair, he would give the repair to another mechanic. Thus,

credible evidence supports the commission's finding that Musso's

exercised the requisite control over claimant to make him its

employee.

II. Attorney's Fees

In his December 4, 2002 opinion, the deputy commissioner

awarded claimant's counsel attorney's fees in the amount of $800

to be paid from claimant's accumulated benefits. On review to

the full commission, claimant did not request an award of

additional attorney's fees. The full commission affirmed the

deputy commissioner's decision without an award of additional

attorney's fees.

Claimant now requests that this Court order Musso's to pay

additional attorney's fees and costs to claimant's counsel

incurred as a result of Musso's request for review to the full

commission and its appeal to this Court.

"Code § 65.1-102 [(now Code § 65.2-714)] provides that fees

of attorneys shall be subject to the approval and award of the

Commission." Hudock v. Industrial Comm'n, 1 Va. App. 474, 477,

340 S.E.2d 168, 171 (1986). Thus, claimant's request must be

made to the commission not this Court. Accordingly, we decline

to address this issue on appeal.
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III. Sanctions

Claimant requests that this Court assess sanctions against

Musso's under Code § 8.01-271.1. Claimant contends that Musso's

appeal to this Court is not grounded in fact or warranted by

existing law or a good faith argument for an extension,

modification, or reversal of existing law. Claimant also

alleges that Musso's appeal was undertaken to harass, cause

unnecessary delay, or needlessly increase litigation costs.

To establish a basis for sanctions, the

record and existing law must be sufficient

to establish that, after reasonable inquiry,

[Musso's] could not have formed a reasonable

belief that its [appeal] was "warranted by

existing law."

We need not decide whether [Musso's]

position was actually "warranted by existing

law." In assessing conduct which is

allegedly in violation of Code § 8.01-271.1,

we apply an objective standard of

reasonableness. We also resolve any doubts

in favor of [Musso's], and eschew the wisdom

of hindsight.

County of Prince William v. Rau, 239 Va. 616, 620, 391 S.E.2d

290, 292-93 (1990) (citation omitted) (footnote omitted).

Under the facts and circumstances of this case, Musso's

could have formed the reasonable belief that its appeal was

warranted by existing law. Furthermore, nothing shows that

Musso's appeal was undertaken to harass, cause unnecessary

delay, or needlessly increase litigation costs. Accordingly,
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claimant's request for an assessment of sanctions against

Musso's, pursuant to Code § 8.01-271.1, is denied.

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

Affirmed.