COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner 

Argued at Salem, Virginia 

GLENWOOD EDWARD JOHNSON 

 MEMORANDUM OPINION* BY 

v. Record No. 0907-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JANUARY 12, 1999 

M S CARRIERS, INC. and 

 UNINSURED EMPLOYERS' FUND 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 George L. Townsend (Chandler, Franklin & 

O'Bryan, on briefs), for appellant. 

 Thomas G. Bell, Jr. (Timberlake, Smith, 

Thomas & Moses, on brief), for appellee M S 

Carriers, Inc. 

 No brief or argument for appellee Uninsured 

Employers' Fund. 

 In this workers' compensation case, Glenwood E. Johnson 

(claimant) appeals the commission's decision declining 

jurisdiction because employer did not have three or more 

employees regularly in service within Virginia. Claimant also 

appeals the commission's finding that employer's "all-state" 

endorsement provision in its out-of-state workers' compensation 

policy did not subject it to the jurisdiction of the commission. 

 Finding no error, we affirm the commission's decision. 

 I. 

 "Under familiar principles, we view the evidence in the 

light most favorable to the party prevailing below. The 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
- 2 - 

commission's findings of fact will be upheld on appeal if they 

are supported by credible evidence." Uninsured Employer's Fund 

v. Clark, 26 Va. App. 277, 280, 494 S.E.2d 474, 475 (1998). 

 So viewed, the evidence established that claimant, a 

resident of Virginia, was employed as an over-the-road (OTR) 

truck driver for employer beginning on July 19, 1994. While 

employer's headquarters is located in Memphis, Tennessee, 

claimant drove routes nationwide, including occasional deliveries 

in Virginia. Claimant estimated that approximately twice per 

month he would unload or pick-up a load in Virginia, although he 

was dispatched out of Tennessee. 

 Employer presented evidence that it is subject to the 

workers' compensation laws of Tennessee and that its insurance 

policy contains an "all-state" endorsement provision, covering 

claims made in states other than Tennessee. Employer concedes 

that it has two employees regularly in service in Virginia. 

These include Gary Santolla (Santolla), a driver recruiter in 

Dublin, Virginia, and an unidentified local driver in Richmond, 

Virginia. While the company has several other OTR drivers who 

reside in Virginia, these employees are all dispatched from 

Tennessee and travel nationwide. 

 Employer owns terminals in Texas, Tennessee, Georgia, Ohio 

and West Virginia. The company does not own any facilities in 

Virginia. However, it leases an office building in Dublin, where 

Santolla works, and maintains "drop yards" in both Dublin and 
- 3 - 

Chester, where no employees work but loads are frequently picked 

up and dropped off. More than three OTR drivers use the drop 

yards in Virginia. 

 Based upon this evidence, the commission held that it lacked 

jurisdiction over the claim. The commission wrote: 

 Upon consideration of the cases and from 

this record, we find the Deputy Commissioner 

correctly determined the Commission does not 

have jurisdiction over this claim because the 

employer had "regularly in service less than 

three employees in the same business within 

the Commonwealth" pursuant to Code 

§ 65.2-101(2)(h). We agree that "regularly 

in service" implies more than occasional 

pick-ups and drop-offs or merely driving 

through Virginia. We further agree that in 

view of this finding, the "all-states" 

endorsement carried by the employer on its 

workers' compensation policy does not subject 

the employer to jurisdiction. 

 II. 

 On appeal, claimant contends that the commission erred in 

holding that employer had less than three employees regularly in 

service within the Commonwealth. He argues that credible 

evidence does not support the commission's finding because on any 

given day, employer dispatched an OTR driver to unload or pick-up 

a load in Virginia. Accordingly, claimant concludes, employer 

collectively had three employees working within the Commonwealth. 

 We disagree. 

 "[O]nce an employee proves that his or her injury occurred 

while employed in Virginia, an employer has the burden of 

producing sufficient evidence upon which the commission can find 
- 4 - 

that the employer employed less than three employees regularly in 

service in Virginia." Craddock Moving & Storage Co. v. Settles, 

16 Va. App. 1, 2, 427 S.E.2d 428, 429 (1993), aff'd per curium, 

247 Va. 165, 440 S.E.2d 613 (1994). 

 "Whether a person is an `employee' and whether an employer 

has three or more employees `regularly in service' are pivotal 

determinations in deciding if an employer is subject to the Act." 

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

 Both full-time and part-time employees who are regularly 

employed to carry out the trade or business of the employer must 

be counted in determining the number of employees "regularly in 

service" to employer. See id. at 258-59, 356 S.E.2d at 448. 

"[A]ny person hired by the employer to work in the usual course 

of the employer's business is an `employee' under the Act 

regardless of how often or for low long he may be employed. Id.

at 258, 356 S.E.2d at 448 (citing Hoffer Bros. v. Smith, 148 Va. 

220, 226, 138 S.E. 474, 476 (1927)). 

 In the present case, credible evidence supports the 

commission's finding that employer did not fall within the 

purview of the Act. It is undisputed that employer has two 

employees, Santolla and an unidentified local driver, who work on 

a regular basis within the Commonwealth. However, the other 

various OTR drivers, delivering loads in Virginia and stopping at 

the "drop yards" on any given day, do not constitute the third 

necessary employee. We conclude that this evidence is not 
- 5 - 

sufficient to establish the required basis of regularity of a 

single employee under the Act. Like the commission, we agree 

that "`regularly in service' implies more that occasional 

pick-ups and drop-offs or merely driving through Virginia." 

Accordingly, we affirm the commission's decision.1

 Affirmed.

 

 1Claimant also argues that employer's insurance policy 

containing an "all-state" endorsement provision subjects employer 

to the jurisdiction of the commission. This argument is without 

merit. The "all-state" endorsement does not create an obligation 

in Virginia, and employer is not required to maintain coverage 

since it did not have three employees regularly in service in 

Virginia. See Thompson v. Graebel Van Lines, No. 0676-88-4 (Va. 

Ct. App. Mar. 16, 1989).