COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

TACTICAL GROUP, INC. 

v. Record No. 1675-95-3 MEMORANDUM OPINION*

 PER CURIAM 

JIMMY RAY LUCAS, DECEMBER 29, 1995 

J. H. PENCE COMPANY, 

FIRST OF GEORGIA INSURANCE COMPANY, AND 

UNINSURED EMPLOYERS' FUND 

AND 

UNINSURED EMPLOYERS' FUND 

v. Record No. 1635-95-3 

 

TACTICAL GROUP, INC., 

JIMMY RAY LUCAS, J. H. PENCE COMPANY, AND 

FIRST OF GEORGIA INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Mark D. Kidd; Osterhoudt, Ferguson, Natt, Aheron & 

Agee, P.C., on brief), for Tactical Group, Inc. 

 (Terry L. Armentrout; Roger Ritchie & Partners, 

P.L.C., on brief), for Jimmy Ray Lucas. 

 (William C. Walker; Donna White Kearney; Taylor & 

 Walker, on briefs), for J. H. Pence Company 

 and First of Georgia Insurance Company. 

 (James S. Gilmore, III, Attorney General; John J. 

 Beall, Jr., Senior Assistant Attorney General; 

 Christopher D. Eib, Assistant Attorney General, on 

 brief), for Uninsured Employers' Fund. 

 

 Tactical Group, Inc. ("Tactical") contends that the Workers' 

Compensation Commission erred in finding that (1) Jimmy Ray Lucas 

 

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

designated for publication. 
 2 

was an employee of Tactical rather than an independent 

contractor; (2) Tactical employed three or more workers, making 

it subject to the Workers' Compensation Act ("the Act"); (3) 

Lucas earned an average weekly wage of $613.02; and (4) Lucas 

proved he sustained an injury by accident arising out of and in 

the course of his employment. The Uninsured Employer's Fund 

("the Fund") cross-appeals and contends that the commission erred 

in (1) allowing J.H. Pence Company ("Pence"), the statutory 

employer, to raise a Code § 65.2-600 notice defense at the July 

27, 1994 hearing; (2) finding that Lucas did not give Pence 

timely notice of his September 20, 1993 injury by accident; and 

(3) refusing to dismiss Lucas' application when he failed to 

appear at the second evidentiary hearing on January 12, 1995. 

Upon reviewing the record and the briefs of the parties, we 

conclude that these appeals are without merit. Accordingly, we 

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

TACTICAL'S APPEAL: RECORD NO. 1675-95-3

 I. Employee vs. Independent Contractor

 "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). On appellate review, the findings of 

fact made by the commission will be upheld when supported by 

credible evidence. James v. Capitol Steel Constr. Co., 8 Va. 

App. 512, 515, 382 S.E.2d 487, 488 (1989). 
 3 

 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, 893 

(1982)). 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. Id. at 367, 392 S.E.2d at 510. 

 Claimant testified that Tazwell K. McDole, Tactical's owner, 

hired him to install school lockers in Spotsylvania County. 

McDole paid Lucas by the hour, not by the job. Lucas did not use 

his own tools. Instead, he used tools provided by Tactical or 

Pence. McDole decided when and where Lucas would work. On 

various occasions, McDole showed Lucas the layout of the jobsite. 

 Lucas built the lockers and McDole retained responsibility over 

their placement. According to Lucas and co-workers Reese Painter 

and Mike Woodward, Lucas supervised the job, keeping time cards 

and distributing paychecks to other employees for McDole. 

 The testimony of claimant, Painter, Woodward, and McDole 

provides credible evidence to support the commission's finding 

that the right to control the Spotsylvania job clearly rested 

with McDole. Accordingly, the commission did not err in ruling 
 4 

that Lucas was Tactical's employee. 
 5 

 II. Applicability of the Act to Tactical

 An employer who has three or more employees regularly in 

service in the same business in Virginia is subject to the Act. 

Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448 (1987). 

 In ruling that the Act applied to Tactical, the commission 

found as follows: 

 While McDole testified that he is merely a 

"job shopper" who finds work for Pence, the 

weight of the evidence establishes that 

McDole, in his business capacity with 

Tactical, is in the business of installing 

school equipment. He has hired three or more 

employees in order to carry out that 

business. The evidence does not support a 

finding that Tactical was subcontracting this 

work to independent contractors. Each worker 

was paid on an hourly basis, and Tactical had 

the ability to control monetary disbursement, 

work conditions, and the end result. We find 

that the co-workers were in the same status 

as [Lucas], i.e., an employee of Tactical. 

The testimony of claimant, Painter, Woodward, and McDole provides 

credible evidence to support these findings. Accordingly, the 

commission did not err in concluding that the Act applied to 

Tactical. 

 III. Average Weekly Wage

 The commission calculated Lucas' $613.03 average weekly wage 

by dividing the net wages he actually earned on the Spotsylvania 

job ($3,503.00) by the forty days he worked for Tactical. 

Tactical contends that the commission erred by not dividing the 

$3503.00 by fifty-two weeks. We disagree. 

 "It was the duty of the Commission to make the best possible 
 6 

estimate of . . . impairments of earnings from the evidence 

adduced at the hearing, and to determine the average weekly 

wage . . . ." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 

435, 441, 339 S.E.2d 570, 573 (1986). In the absence of a fiftytwo week pay history, the average weekly wage may be calculated 

by "dividing the earnings during that period [the employee 

worked] by the number of weeks . . . which the employee earned 

wages . . . , provided that results fair and just to both parties 

will be thereby obtained." Code § 65.2-101 ("Average weekly 

wage"). The calculation of average weekly wage "is a question of 

fact to be determined by the Commission which, if based on 

credible evidence, will not be disturbed on appeal." Id. "Thus, 

if credible evidence supports the commission's findings regarding 

the claimant's average weekly wage, we must uphold those 

findings." Chesapeake Bay Seafood House v. Clements, 14 Va. App. 

143, 146, 415 S.E.2d 864, 866 (1992). 

 The record proved that Lucas worked forty days on the 

project. Thus, the commission reasoned that "[d]ividing the 

wages earned with this employer by 52 weeks would not produce an 

equitable result." Nothing in the record suggests that this 

method was not fair and just to both parties. Credible evidence 

supports the commission's method of calculating Lucas' average 

weekly wage, and it is not contrary to the provisions of Code 

§ 65.2-500. Accordingly, the commission did not err in awarding 

Lucas benefits based upon an average weekly wage of $613.03. 
 7 

 IV. Injury by Accident

 Tactical argues that Lucas was not credible, and, therefore, 

the commission erred in finding that he proved that he sustained 

an injury by accident arising out of and in the course of his 

employment on September 20, 1993. However, "[i]n determining 

whether credible evidence exists, the appellate court does not 

retry the facts, reweigh the preponderance of the evidence, or 

make its own determination of the credibility of the witnesses." 

Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 

32, 35 (1991). 

 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). Lucas 

testified that, on September 20, 1993, he sustained a back injury 

when he fell while carrying lockers down a flight of stairs. The 

commission, in its role as fact finder, reviewed the witnesses' 

testimony and the medical records, and resolved any 

inconsistencies in favor of Lucas. Lucas' testimony is 

consistent with the history he reported to Dr. Frederick Fox, his 

treating physician. Lucas' testimony, the medical records, and 

McDole's testimony (that Lucas notified him of the accident 

several days after it occurred) provide credible evidence to 

support the commission's finding that Lucas sustained a 

compensable back injury on September 20, 1993. Thus, we are 

bound by this finding on appeal. 
 8 

 THE FUND'S CROSS-APPEAL: RECORD NO. 1635-95-3

I. and II. Pence's Notice Defense

 The Fund contends that the commission erred in allowing 

Pence to raise a lack of notice defense, Code § 65.2-600, at the 

July 27, 1994 hearing because Pence did not list lack of notice 

as one of its defenses in its answers to interrogatories. The 

record supports the commission's finding that, at the beginning 

of the July 1994 hearing, Pence adopted all of Tactical's 

defenses, which included a lack of notice. Thus, the Fund knew 

from the beginning of the hearing that Pence intended to rely 

upon lack of notice as a defense. The record also shows that the 

deputy commissioner provided the Fund with an adequate 

opportunity to take further evidence on Pence's defense at the 

second evidentiary hearing held on January 12, 1995. Because the 

record shows that Pence's course of action did not result in 

prejudice to the Fund, we cannot say that the commission abused 

its discretion in allowing Pence to rely upon the lack of notice 

as a defense. 

 Moreover, credible evidence, including the testimony of 

Lucas and McDole, supports the commission's finding that Pence 

did not receive timely notice of Lucas' accident as required by 

Code § 65.2-600. Although McDole testified that he informed 

Pence's general manager that someone had been injured on a 

Stafford County job, he did not testify that he specifically 

notified Pence of Lucas' September 20, 1993 accident on the 
 9 

Spotsylvania County job. When Stephen P. Hawkins, vice president 

of Pence, was questioned concerning the notice issue, Lucas 

stipulated that he did not give Pence timely notice of his 

accident. 

 Because credible evidence supports the commission's finding 

that Pence did not receive timely notice of Lucas' accident as 

required by Code § 65.2-600, the commission did not err in 

dismissing Pence as a party defendant. 

 III. Lucas' Failure to Appear at Second Hearing

 The Fund also contends that the commission erred in not 

dismissing Lucas' application because he failed to appear at the 

second hearing on January 12, 1995. The record shows that the 

commission informed all parties that the purpose of the second 

hearing was to resolve the Show Cause Order against Tactical and 

to take additional evidence on the notice issue. 

 Lucas stipulated at the first hearing that he did not give 

timely notice of his accident to Pence. Thus, because Lucas had 

no further evidence to offer on the notice issue and the show 

cause issue did not concern him, Lucas' counsel informed the 

deputy commissioner that he and Lucas would not appear at the 

second hearing unless ordered to do so. If the Fund wanted to 

take additional evidence from Lucas concerning the notice issue, 

the Fund could have ensured Lucas' attendance at the second 

hearing. The Fund did not request a subpoena, and Lucas did not 

appear. 
 10 

 Based upon this record, we cannot say that the Commission 

abused its discretion by refusing to dismiss Lucas' application. 

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

 Affirmed.