COURT OF APPEALS OF VIRGINIA

Present: Judg es Bumgardner , Humphreys an d Clements Argued at Salem, Virginia

GILBERT J. PERKEY, t/a BOTETOURT STONEMASONS MEMORANDUM OPINION * BY v. Record No. 1870-02-3 JUDGE ROBERT J. HUMPHREYS JANUARY 28, 2003 RANDALL WAYN E FRIDLEY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Monica Taylor Monday (Gentry, Lock e, Rakes & Moore, on brief), for appellant. Rhonda L. Overstreet (Lumsden, Ov erstreet & Hansen, on brief), for appellee.

Gilbert J. Perkey, t/a Botetourt Stonemasons, appeals a decision of th e commission awarding Randall Wayn e Fridley temporary total di sability benefits, tempor ary partial disability benefits and medical be nefits, and assessing against Pe rkey a fine of $500, pursuant to Code § 65.2-805 for fa iling to insure its liability for work ers' compensation purposes . Perkey contends the commission erred in fi nding that he had three or mo re employees regularly in service an d that he was, theref ore, subject to the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Further, because this opinion has no precedential value, we recite only those facts essential to our holding.commission's jurisdicti on. For the reasons th at follow, we affirm the decision of the commission. We first note that Perkey does not disp ute the comm ission's determination that Fridley, th e claimant, and Gi lbert Perkey, his son, were "employe es" within the meaning of Code § 65.2-101(2)(h). Instead, Perkey confin es his argument to wh ether the co mmission erred in finding that Th omas Perkey, also his son, was an employee and that Perkey theref ore had three or more employees re gularly in service, subjecting hi m to the commis sion's jurisdiction pursuant to the Act. We disagr ee with Perkey's conten tion in this regard. Under Code § 65.2-101, employers with fewer than three employees are exempt from coverage under the Workers' Compensation Act. The employer has the burden of producing evidence that it is exempt from coverage. Craddock Moving & Storage Co. v. Settles , 16 Va. App. 1, 2, 427 S.E.2d 428, 429 (1993), aff'd per curiam , 247 Va. 165, 440 S.E.2d 613 (1994). "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); see also Metropolitan Cleaning Corp., Inc. v. Crawley , 14 Va. App. 261, 264, 416 S.E.2d 35, 37 (1992) ( en banc ). We are bound by the commission's findings of fact if those findings are supported by credible evidence. Lynch v. Lee , 19 Va. App. 230, 234, 450 S.E.2d 391, 393 (1994). On appeal, we construe the evidence in the light most favorable to the employer, the party prevailing below. Whitlock v. Whitlock Mechanical/Check Services, Inc. , 25 Va. App. 470, 479, 489 S.E.2d 687, 692 (1997).

- 2 -Osborne v. Forner , 36 Va. App. 91, 95, 548 S.E.2d 270, 272 (2001). Therefore, we must determine if ther e is evidence in the record that credibly supports the commission's find ing that Thomas Perkey was Perkey's em ployee and not an inde pendent cont ractor. "The elements of an employment relationship are: (1) selection and engagement of the employee, (2) payment of wages, (3) power of dismissal, and (4) power of control of the employee's action. The most important of these is the element of control." Behrensen v. Whitaker , 10 Va. App. 364, 366, 392 S.E.2d 508, 509 (1990) (citation omitted). The first three elements "are not the ultimate facts, but only those more or less useful in determining whose is the work and where is the power of control." Stover v. Ratliff , 221 Va. 509, 512, 272 S.E.2d 40, 42 (1980). Mount Vernon Builders, Inc. v. Rotty , 28 Va. App. 511, 514, 507 S.E.2d 95, 96-97 (1998). [Thus,] [t]he right of control is the determining factor in ascertaining the parties' status in an analysis of an employment relationship. Virginia Employment Comm'n v. A.I.M. Corp. , 225 Va. 338, 347, 302 S.E.2d 534, 539 (1983). And the 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." [ Richmond Newspapers v. Gill , 224 Va. 92, 98, 294 S.E.2d 840, 843 (1982)]. 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 but an independent contractor." A.I.M.

- 3 -Corp. , 225 Va. at 347, 302 S.E.2d at 540; Craig v. Doyle , 179 Va. 526, 531, 19 S.E.2d 675, 677 (1942). The extent of the reserved right of control may be determined by examining the performance of the parties in the activity under scrutiny. Intermodal Services, Inc. v. Smith , 234 Va. 596, 601, 364 S.E.2d 221, 224 (1988). The evidence in the case at bar, when considered in the light most favorable to Frid ley, established that Thomas Perkey had worked primarily fo r his father since he was a teenager. 1 The evidence further esta blished that he was transp orted to the various sites in the company vehi cle, that he was paid on a "square footage ba sis, that averaged out to an hourly thing" of approximately $8 .00 per hour, an d that he prim arily used his father's equipment when performing his work . In fact, Perkey testified that he was not able to work on "major" jobs, like those he worked on with his father, be cause he "didn't have the equipment" to allo w him to do so. Moreover, the evid ence supported the commission's determination that Perkey had the "power to dire ct the means and methods by which [Thomas Pe rkey did his] work." Intermodal , 234 Va. at 601, 364 S. E.2d at 224. In deed, Thomas Perk ey conceded, in response to ques tioning by the deputy co mmissioner, "[ y]eah, he tells me how he wa nts it done, over all result. I me an if he wants

1 Thomas Perkey testified that he was 21 years of age at the time of the hearing.

- 4 -a wall, he tells me he needs a wall." Further, Gilbert Perkey testified that his fath er established quitting time and that he gave the workers, in cluding Thomas Perkey , their in dividual assignments. He also stated that when "it came to stuff we didn't know about, then [Perke y] would do it." Fi nally, Thomas Perkey himself testif ied that he did not bid for other large jobs, but only did "small" jobs for friends. Because credible evidence existed in the record to support the commission's determination that Thomas Perkey was an "employee," not an independent contractor, and that Perkey therefore, regularly empl oyed three or more em ployees, we find no error in its finding th at it possesse d jurisdiction over Fridley's claim. Affirmed.

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