COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and 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 WAYNE FRIDLEY 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Monica Taylor Monday (Gentry, Locke, Rakes & 

Moore, on brief), for appellant. 

 Rhonda L. Overstreet (Lumsden, Overstreet & 

Hansen, on brief), for appellee. 

Gilbert J. Perkey, t/a Botetourt Stonemasons, appeals a 

decision of the commission awarding Randall Wayne Fridley 

temporary total disability benefits, temporary partial disability 

benefits and medical benefits, and assessing against Perkey a fine 

of $500, pursuant to Code § 65.2-805 for failing to insure its 

liability for workers' compensation purposes. Perkey contends the 

commission erred in finding that he had three or more employees 

regularly in service and that he was, therefore, 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 jurisdiction. For the reasons that follow, we affirm 

the decision of the commission. 

We first note that Perkey does not dispute the commission's 

determination that Fridley, the claimant, and Gilbert Perkey, his 

son, were "employees" within the meaning of Code § 65.2-101(2)(h). 

Instead, Perkey confines his argument to whether the commission 

erred in finding that Thomas Perkey, also his son, was an employee 

and that Perkey therefore had three or more employees regularly in 

service, subjecting him to the commission's jurisdiction pursuant 

to the Act. We disagree with Perkey's contention 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). 

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Osborne v. Forner, 36 Va. App. 91, 95, 548 S.E.2d 270, 272 

(2001). 

Therefore, we must determine if there is evidence in the 

record that credibly supports the commission's finding that Thomas 

Perkey was Perkey's employee and not an independent contractor. 

"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. 

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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 Fridley, established that Thomas Perkey had 

worked primarily for his father since he was a teenager.1 The 

evidence further established that he was transported to the 

various sites in the company vehicle, that he was paid on a 

"square footage basis, that averaged out to an hourly thing" of 

approximately $8.00 per hour, and that he primarily 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, because he "didn't have the 

equipment" to allow him to do so. 

Moreover, the evidence supported the commission's 

determination that Perkey had the "power to direct the means and 

methods by which [Thomas Perkey did his] work." Intermodal, 234 

Va. at 601, 364 S.E.2d at 224. Indeed, Thomas Perkey conceded, in 

response to questioning by the deputy commissioner, "[y]eah, he 

tells me how he wants it done, overall result. I mean if he wants 

 

1

 Thomas Perkey testified that he was 21 years of age at the 

time of the hearing. 

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a wall, he tells me he needs a wall." Further, Gilbert Perkey 

testified that his father established quitting time and that he 

gave the workers, including Thomas Perkey, their individual 

assignments. He also stated that when "it came to stuff we didn't 

know about, then [Perkey] would do it." Finally, Thomas Perkey 

himself testified 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 employed three or more employees, we find no 

error in its finding that it possessed jurisdiction over Fridley's 

claim. 

Affirmed. 

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