COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Willis 

Argued at Salem, Virginia 

W & L CONSTRUCTION & PAVING, INC. 

 and PENNSYLVANIA MANUFACTURERS' 

 ASSOCIATION INSURANCE COMPANY MEMORANDUM OPINION* BY 

 JUDGE SAM W. COLEMAN III 

v. Record No. 2764-96-3 MAY 27, 1997 

HERCHEL FRANK SULLIVAN, JR. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 James G. Muncie, Jr. (Kathryn Spruill Lingle; 

Midkiff & Hiner, P.C., on brief), for 

appellants. 

 Gerald F. Sharp (Browning, Lamie & Sharp, 

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

 W & L Construction & Paving, Inc. and its insurer appeal the 

decision of the Workers' Compensation Commission granting Herchel 

Frank Sullivan (claimant) temporary total disability benefits. 

The commission held that the claimant was a statutory employee of 

W & L Construction and that the claimant was temporarily totally 

disabled for psychiatric reasons. Finding no error, we affirm 

the commission's decision. 

 Viewed in the light most favorable to the claimant as the 

prevailing party, the evidence established that the claimant was 

employed by MMS Trucking at the time of his injury. MMS Trucking 

is a trucking company owned and operated by Myra Sullivan, the 

claimant's sister-in-law. MMS Trucking owned one dump truck, 

 

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

designated for publication. 
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which was driven by the claimant and had one employee, the 

claimant. Myra Sullivan negotiated and entered into a contract 

with W & L Construction, a general contractor, to haul asphalt 

and gravel to various construction job sites. 

STATUTORY EMPLOYEE

 In order to recover, the claimant had the burden of proving 

that he was an employee of MMS Trucking, which was a 

subcontractor of W & L Construction. See Craddock Moving & 

Storage Co. v. Settles, 16 Va. App. 1, 3, 427 S.E.2d 428, 430 

(1993), aff'd, 247 Va. 165, 440 S.E.2d 613 (1994); Code 

§ 65.2-302. "'What constitutes an employee is a question of 

law'; however, whether a specific person falls within that 

definition 'is usually a question of fact.'" Metropolitan 

Cleaning Corp. v. Crawley, 14 Va. App. 261, 264, 416 S.E.2d 35, 

37 (1992) (en banc) (citation omitted). 

 In determining whether an individual is an employee, we 

consider four elements: 1) selection and engagement of the 

servant; 2) payment of wages; 3) power of dismissal; and 4) power 

of control of the servant's action. Hamilton Trucking/Hamilton 

Terminal Corp. v. Springer, 10 Va. App. 710, 715, 396 S.E.2d 379, 

381 (1990) (citation omitted). "[T]he first, second and third of 

these elements are not essential to the relationship. . . . The 

'power of control' is the most significant element bearing on the 

question." Id.; see also Richmond Newspapers, Inc. v. Gill, 224 

Va. 92, 98, 294 S.E.2d 840, 843 (1982); Behrensen v. Whitaker, 10 
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Va. App. 364, 366-67, 392 S.E.2d 508, 509-10 (1990). 

 The right of control inherent in an employer 

and employee relationship is the power to 

control the means and methods by which the 

result sought is to be accomplished. An 

employer retains power to direct "the means 

and methods" by which an employee performs 

his or her work. Furthermore, "it is not the 

actual exercise of control, but the right to 

control," that is determinative. 

James v. Wood Prods. of Virginia, 15 Va. App. 754, 757, 427 

S.E.2d 224, 225 (1993) (citations omitted). 

 In this case, the evidence proves that Myra Sullivan had the 

right to control the means and methods by which the claimant 

performed his work. She delegated the authority and 

responsibility for conducting the claimant's day to day duties to 

W & L Construction under the contract. The nature of the hauling 

contract with W & L Construction made it unnecessary for Ms. 

Sullivan to directly control the claimant on a daily basis. Ms. 

Sullivan negotiated the contracts for hauling, with the exception 

of the occasional weekend hauling for individuals who contacted 

the claimant directly. She received all payments for hauling, 

both from W & L Construction and from private individuals. The 

claimant did not pay for use of the truck, rather, he was paid to 

operate it. The fact that he was paid a percentage of the gross 

receipts is of no consequence. See Hill City Trucking, Inc. v. 

Christian, 5 Va. App. 106, 111, 360 S.E.2d 867, 869 (1987), rev'd 

on other grounds, 238 Va. 735, 385 S.E.2d 377 (1989). Ms. 

Sullivan withheld all state and federal taxes from the claimant's 
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paycheck and paid his Social Security taxes. She was solely 

responsible for all maintenance, insurance, and operating 

expenses relating to the dump truck. She retained the power to 

control the claimant and how he performed his work and as such he 

was an employee of MMS Trucking. 

 Because MMS Trucking did not have three or more regular 

employees at the time of claimant's injury, it is not subject to 

the Workers' Compensation Act. Code § 65.2-101(2)(h). However, 

since MMS was engaged in the same trade, business, or occupation 

as W & L Construction, the claimant was a statutory employee of 

that corporation. Code § 65.2-302. Thus, the commission did not 

err in finding that the claimant was a statutory employee of 

W & L Construction. 

TOTAL DISABILITY

 Upon appellate review, the commission's findings of fact 

will be upheld when supported by credible evidence in the record. 

Stancill v. Ford Motor Co., 15 Va. App. 154, 158, 421 S.E.2d 

872, 874 (1992). Here, the commission found that the claimant 

was totally disabled as of February 27, 1996 as a result of 

post-traumatic stress disorder and anxiety depressive syndrome. 

Dr. McKnight, a psychiatrist who was treating the claimant, and 

Dr. Kanwal, an internist, both opined that, while the claimant 

had recovered from his physical injury and was physically able to 

work, he was totally disabled by the post-traumatic stress 

disorder and anxiety depressive disorder caused by the accident. 
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 This uncontradicted evidence constitutes sufficient credible 

evidence for the commission to have found that the claimant was 

temporarily totally disabled as a result of the accident. 

Accordingly, we affirm the decision of the commission. 

Affirmed.