COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Elder and Petty 

Argued at Salem, Virginia 

DILLON CONSTRUCTION AND 

 ACCIDENT FUND INSURANCE COMPANY 

 OF AMERICA 

 OPINION BY 

v. Record No. 2946-08-3 JUDGE LARRY G. ELDER 

DECEMBER 22, 2009 

DARYL LANDON CARTER 

 FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION 

 Ramesh Murthy (Penn, Stuart & Eskridge, on brief), for appellants. 

 Stephen G. Bass (Carter Craig, on brief), for appellee. 

 Dillon Construction and Accident Fund Insurance Company of America (collectively 

referred to as the company) appeal from a decision of the Workers’ Compensation Commission 

(commission) holding that Daryl Carter (claimant) was entitled to medical and temporary total 

disability benefits following a work-related accident. On appeal, the company argues the 

commission erred in finding that an employer/employee relationship existed between claimant 

and the company such that claimant was a covered employee within the meaning of the Workers’ 

Compensation Act (the Act). Because the evidence is sufficient to support the conclusion that 

Dillon Construction’s owner, Ronnie Dillon, possessed the power of control over the means and 

method by which claimant performed his job, we affirm the commission’s decision. 

I. 

BACKGROUND 

 We view the evidence in the light most favorable to claimant, who prevailed below. See

Westmoreland Coal v. Russell, 31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999). So viewed, the 
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evidence shows that in 2005, claimant began working for the company as a skilled carpenter. 

The company withheld money from claimant’s wages for taxes and social security. 

 In 2006, claimant voluntarily terminated his employment relationship with the company 

and obtained a city license to perform freelance contractor work on his own. He kept in contact 

with the company and performed part-time carpentry work for it as needed. As part of the 

operation of his private business, claimant used his own truck, cell phone, and basic carpentry 

tools, which he treated as business expenses for purposes of his 2006 tax returns. 

 On November 20, 2006, claimant returned to work for the company because he had 

difficulty obtaining sufficient work to sustain a separate business. Claimant worked for the 

company continuously until July 31, 2007, when he fell from the second story of a residence 

under construction and sustained injuries to his left elbow and pelvis. On August 10, 2007, 

claimant filed a claim for benefits. The company denied the claim because it did not consider 

claimant an “employee” as contemplated by the relevant provisions of the Act. Claimant 

requested a hearing, and the commission ultimately held that claimant was a covered employee 

and thus entitled to medical and disability compensation benefits. This appeal followed. 

II. 

ANALYSIS 

The Act provides, in relevant part, that an employee entitled to workers’ compensation 

coverage pursuant to its terms includes “every person, including a minor, in the service of 

another under any contract of hire or apprenticeship, written or implied, except . . . one whose 

employment is not in the usual course of the trade, business, occupation or profession of the 

employer.” Code § 65.2-101. A claimant seeking benefits under the Act bears the burden of 

proving he is an employee within the definition of Code § 65.2-101. See Behrenson v. Whitaker, 

10 Va. App. 364, 366, 392 S.E.2d 508, 509 (1990). 
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 “‘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.’” Intermodal Servs., Inc. v. Smith, 

234 Va. 596, 600, 364 S.E.2d 221, 224 (1988) (quoting Baker v. Nussman, 152 Va. 293, 302, 

147 S.E. 246, 249 (1929)). Although the commission’s factual findings are binding and 

conclusive on appeal when they are supported by credible evidence, see James v. Capitol Steel 

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989), a “determination of the 

relationship involves a mixed question of law and fact which is reviewable on appeal,” City of 

Spotsylvania v. Walker, 25 Va. App. 224, 230, 487 S.E.2d 274, 276 (1997). 

 The company argues it was not obligated under the Act to provide claimant benefits 

because he was an independent contractor and not a covered employee. In support of this 

argument, the company points to evidence that owner Ronnie Dillon lacked control over the 

manner and means by which claimant performed his work and that claimant chose, upon his 

return to work for the company, to pay his own taxes from his wages. We hold credible evidence 

supports the commission’s finding that Dillon “exercised significant control over the detailed 

manner in which the claimant performed the work” and, thus, we affirm the commission’s award 

of benefits. 

The question as to whether a claimant qualifies as an employee under the Act “must be 

determined from the facts of the particular case in the light of well settled principles.” Brown v. 

Fox, 189 Va. 509, 516, 54 S.E.2d 109, 113 (1949). Under the common law, the four criteria we 

must consider are the “‘(1) [s]election and engagement of the servant; (2) payment of wages; 

(3) power of dismissal; and (4) the power of control of the servant’s action.’” Crowder v. 

Haymaker, 164 Va. 77, 79, 178 S.E. 803, 804 (1935) (quoting Baker, 152 Va. at 303, 147 S.E. at 

249). “The power of control is the most significant indicium of the employment relationship; 
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other factors merely help to elucidate the manner and degree of control.” Richmond 

Newspapers, Inc. v. Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843 (1982). 

[T]he right of control includes not only the power to specify the 

result to be attained, but also the power to control “the means and 

methods by which the result is to be accomplished.” Gill, 224 Va. 

at 98, 294 S.E.2d at 843. 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. 

“If 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.” [Va. Emp. Comm’n v.] A.I.M. Corp., 

225 Va. [338,] 347, 302 S.E.2d [534,] 540 [(1983)]. The extent of 

the reserved right of control may be determined by examining the 

performance of the parties in the activity under scrutiny. 

Smith, 234 Va. at 601, 364 S.E.2d at 224. 

 Dispositive of the issue in this case is the fact that Dillon retained the power of control 

over claimant’s job performance such that claimant was not “free to adopt such means and 

methods as he [chose] to accomplish the result.” A.I.M. Corp., 225 Va. at 347, 302 S.E.2d at 

540. “The potential power of control, not the actual exercise of control, is the important 

element.” Id. at 347, 302 S.E.2d at 539-40. We must look to the nature of the work to determine 

on a case-by-case basis whether the employer possessed the requisite degree of control for the 

claimant to qualify as an employee. See Purvis v. Porter Cabs, Inc., 38 Va. App. 760, 770, 568 

S.E.2d 424, 429 (2002). 

 Here, the company’s supervisors managed the individual projects and Dillon monitored 

their progress on a daily basis by telephone or personal visits to each jobsite. The hourly 

employees working for the company were not given specific instructions on how to perform their 

tasks because they were skilled carpenters who did not need close supervision. However, Dillon 

reserved the power to “ma[k]e decisions about tearing work out as unsatisfactory[,]” and “with 

regard to changing work in terms of the owner communicating such requirements.” 
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 The record discloses no meaningful distinction between Dillon’s power of control over 

his hourly employees and his power of control over claimant. Dillon acknowledged that he 

would “tell [claimant] at the beginning of the day what to do during the day, what [he] wanted to 

get done,” but did not interfere with the manner in which claimant performed those tasks because 

“he was an experienced carpenter with several years experience and knew what he was doing.” 

Accordingly, claimant was not “treated any differently during the workday with regard to his 

carpentry work than a skilled carpenter who [Dillon] considered an employee.” 

 Consideration of the remaining three factors underscores the power of control Dillon 

possessed over claimant’s work. The uncontradicted evidence demonstrates that Dillon retained 

the sole ability to hire potential carpenters based on each carpenter’s experience. Moreover, 

claimant and Dillon did not reduce their verbal agreement to a written employment contract, 

placing claimant in the legal status of an at-will employee who could be fired at any time for any 

reason or no reason. Cf. Gill, 224 Va. at 100, 294 S.E.2d at 844 (interpreting written contracts 

that contain limitations on terminating the employment relationship as “characteristic of 

contracts negotiated by independent contractors”). Claimant was paid hourly wages, and he was 

required to turn in a time card reflecting the time spent on each project. Finally, Dillon provided 

the power tools, materials, ladders, and scaffolding for claimant and the other hourly employees 

to use while working at company jobsites. Even though claimant brought his own small 

carpentry tools, the evidence proves that this was customary for all of Dillon’s employees. 

The company relies heavily on claimant’s election not to have Dillon withhold taxes and 

fees from his earnings and on claimant’s deduction of business expenses on his 2006 and 2007 

tax forms. Upon claimant’s return to work for the company on November 20, 2006, Dillon 

asked claimant if he “want[ed Dillon] to take out taxes,” to which claimant requested to “pay 

[his] own taxes.” Claimant continued to file these taxes under the tax ID number he had 
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obtained when he started his own contracting business in 2006. In 2007, claimant submitted 

receipts relating to his tool, truck, gas, and insurance expenses to his accountant for the purpose 

of computing his business deductions and resulting tax liability on his federal tax return. While 

relevant, see Hamilton Trucking Corp. v. Springer, 10 Va. App. 710, 716-17, 396 S.E.2d 379, 

382 (1990), in this case, claimant’s decision regarding his taxes merely demonstrates an exercise 

of his business judgment in an attempt to save money. The company has cited to no authority, 

and we have found none, that makes tax considerations dispositive of whether claimant is an 

independent contractor. 

 The company next argues that Dillon’s intent regarding claimant’s employment status 

compels us to reverse the commission’s award of benefits. However, it is well settled that 

“employers cannot simply designate persons as employees or independent contractors[,]” 

Springer, 10 Va. App. at 711, 396 S.E.2d at 379, though the parties’ intent can be considered as a 

factor in the ultimate determination, see Gill, 224 Va. at 98, 294 S.E.2d at 843; Walker, 25 Va. 

App. at 231, 487 S.E.2d at 277. The company acknowledges that claimant was an hourly 

employee when he first started in 2005, but it argues Dillon considered claimant a subcontractor 

when he returned in 2006 because claimant requested that Dillon not withhold taxes from his 

wages. Further, Dillon felt that because claimant was a subcontractor, he could not be 

reprimanded or punished for leaving one of the company’s projects to work on a job for one of 

claimant’s own clients. The record does not indicate, however, whether Dillon communicated 

this understanding to claimant when he returned in November 2006. To the contrary, Dillon 

admitted that he did not specifically ask claimant whether he wanted to return as an hourly 

employee or an independent contractor. Instead, he simply asked if claimant wanted taxes 

withheld from his earnings. Indeed, aside from not withholding taxes, claimant was treated in 

the same manner as the other company employees for all practical purposes. Claimant worked 
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eight hours a day, turned in his time cards, received his earnings based on hours worked, and 

performed the same duties as when he was an hourly employee in 2005. Significantly, Dillon 

testified that he hired subcontractors only for specialized tasks, such as plumbing or electrical 

work. By contrast, carpentry, claimant’s specialty, remained within the province of the 

company’s five hourly employees. Under these circumstances, the commission did not err in 

disregarding Dillon’s unspoken intent to change claimant’s status from an hourly employee to an 

independent contractor when claimant returned on November 20, 2006. 

Finally, we reject the company’s argument that claimant’s potential ability to work for 

other clients at the expense of not working for the company belies his status as a covered 

employee. The commission found, and the evidence demonstrates, that claimant only performed 

a few minor jobs for his own clients. In fact, claimant worked close to eight hours per day on 

jobsites for the company. The General Assembly did not intend to render an employee ineligible 

to receive disability benefits simply because the employee accepts additional work to supplement 

his or her present income. See A.I.M. Corp., 225 Va. at 346, 302 S.E.2d at 539 (“The Act is to 

be liberally construed to effect its beneficent purpose and in borderline cases ‘employment’ 

should be found to exist.” (quoting Unemp. Comp. Comm’n v. Collins, 182 Va. 426, 438, 29 

S.E.2d 388, 393 (1944))). 

III. 

Notwithstanding claimant’s election to make his own withholding tax payments from his 

wages, the evidence is sufficient to support a finding that Dillon retained the right to control, and 

did control, the method and means of the work claimant performed. Accordingly, we hold the 

commission did not err in finding claimant to be a covered employee under the Act, and we 

affirm its award of benefits. 

Affirmed.