COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

DOG FACE MANAGEMENT, INC., 

 t/a TONY ELLIOTT BAND and 

 ANTHONY D. ELLIOTT 

 MEMORANDUM OPINION* BY 

v. Record No. 0530-97-1 JUDGE RICHARD S. BRAY 

 NOVEMBER 18, 1997 

WILLIAM T. USHER 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Karen M. Rye for appellants. 

 C. Allen Riggins (Parker, Pollard & Brown, on 

brief), for appellee. 

 Dog Face Management, Inc., t/a Tony Elliott Band, and 

Anthony D. Elliott (collectively Elliott) appeal a decision of 

the Workers' Compensation Commission awarding benefits to William 

J. Usher (claimant). On appeal, employer complains that the 

commission erroneously concluded that claimant was not an 

independent contractor but, rather, an employee entitled to 

benefits under the Workers' Compensation Act (Act). We disagree 

and affirm the award. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to 

disposition of the appeal. 

 "The [Act] covers employees but not independent 

contractors." County of Spotsylvania v. Walker, 25 Va. App. 224, 

 

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

designated for publication. 
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229, 487 S.E.2d 274, 276 (1997). The distinction must be 

determined from the facts of each case, with the burden upon a 

claimant to prove an employer/employee relationship contemplated 

by the Act. Id. at 229-30, 487 S.E.2d at 276; see Code 

§ 65.2-101. Although factual findings of the commission, 

supported by credible evidence, are binding and conclusive on 

appeal, James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 

382 S.E.2d 487, 488 (1989); see Code § 65.2-706, a 

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

law and fact 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, 509-510 (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). 

 [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 

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 
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but an independent contractor.' 

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

221, 224 (citations omitted). 

 Here, the evidence disclosed that Anthony Elliott, 

self-described "leader" of the "Tony Elliott Band,"1 hired 

claimant, a professional musician, to play guitar with the group 

at an agreed weekly salary of $300. Claimant was expected to 

provide and maintain equipment necessary to his performance in 

accordance with instructions from Elliott. Elliott directed the 

time, place, and duration of band rehearsals and approved 

engagements for the band, together with attendant dress 

requirements, musical style and selections.2

 In early June, 

1995, Elliott terminated claimant, with the understanding that he 

remain for a final performance in Raleigh, North Carolina. 

 On the evening of June 10, 1995, while preparing for this 

engagement, claimant fell from steps leading to the stage, 

suffering head, back, and neck injuries. Claimant, nevertheless, 

performed as agreed, drove himself back to Virginia, and sought 

treatment at Riverside Emergency Trauma Center the following day. 

 Diagnosed with scalp contusions and back muscle spasms, the 

attending physician ordered claimant from work for two days. 

Dr. James F. Allen, a neurosurgeon, also treated claimant and 

 

 1Later incorporated as Dog Face Management, Inc. 

 2Employer's argument that the band was actually controlled 

by its "agent," Cellar Door, is belied by the record. 
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restricted his work activity to "brief sessions" and "jobs 

locally" for a period of two weeks. Dr. Allen ultimately 

discharged claimant from his care on July 28, 1995. 

 Such evidence clearly established that claimant was hired 

and fired by Elliott, serving in the interim, including the time 

of injury, under Elliott's direction and control for an agreed 

salary, circumstances which defined claimant as an employee 

entitled to benefits of the Act in accordance with the 

commission's decision. 

 Employer also appealed to the commission the deputy's 

finding that claimant's response to Elliott's request for 

admissions did not limit his disability entitlement to the 

"period 6/10/95 through 6/30/95." Although such issue was again 

appealed, briefed and argued before this Court, it was not 

expressly decided by the commission. We, therefore, remand this 

question for resolution by the commission, with an appropriate 

award of related benefits. 

 Affirmed and remanded.