                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Annunziata
Argued at Salem, Virginia


HAROLD LEONARD RAY
                                       MEMORANDUM OPINION * BY
v.   Record No. 2576-97-3            JUDGE ROSEMARIE ANNUNZIATA
                                            JUNE 2, 1998
WENDALL J. AND ANN C. RADFORD AND
 UNINSURED EMPLOYER'S FUND


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           James B. Feinman (James B. Feinman &
           Associates, on brief), for appellant.

           Jonathan L. McGrady (McGrady & McGrady,
           L.L.P., on brief), for appellees Wendall J.
           and Ann C. Radford.

           No brief or argument for appellee Uninsured
           Employer's Fund.



     Harold L. Ray (claimant) appeals the decision of the

Workers' Compensation Commission, arguing that the commission

erred in determining that it did not have jurisdiction to award

benefits to claimant.    In addition to arguing that the commission

was not in error, Wendall J. and Ann C. Radford (employer) argue

in response that if the commission erred in determining that it

did not have jurisdiction, claimant's application for benefits

should be dismissed for his willful misconduct.

     On August 8, 1995, claimant, an employee on employer's dairy

farm, applied air pressure to an automobile tire as part of the

process of changing the tire.    The tire exploded, causing
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
extensive injuries to claimant.    At the time of the accident,

employer employed claimant's mother and Danny Willard in addition

to claimant.    Whether the commission had jurisdiction to consider

claimant's application for benefits turns on a determination of

the number of "full-time" employees employer had under Code

§ 65.2-101(2)(g).

        The deputy commissioner analyzed the evidence, which was in

dispute, in light of the standard for full-time employment set

out in Lynch v. Thomas E. Lee & Sons, 12 Va. App. 933, 934-35,

406 S.E.2d 423, 424 (1991).    The deputy commissioner specifically

indicated that he found persuasive the testimony of Ann Radford

that Willard only worked twenty hours per week, and made $80 per

week.    The commissioner found that "Willard made less money than

the farm's other two employees because he worked fewer hours, and

not because some alternate compensation arrangement was in

effect."    The commissioner held that because employer only had

two full-time employees, he did not have jurisdiction to consider

claimant's claim.

        On review, the full commission found that employer had not

used Willard's normal employment capacity, and, thus, that

Willard was not a full-time employee.    The commission found that

employer's provision of a place for Willard to live did not

signify that Willard worked full time.    The commission indicated

that the contrary testimony of claimant and claimant's mother was

"somewhat vague," and did not establish, in the context of all



                                   2
the testimony, that Willard was a full-time employee.

     Claimant contends that the commission erred in finding that

employer only had two full-time employees.   "Under familiar

principles, we view the evidence in the light most favorable" to

employer, the prevailing party below.   R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990) (citing

Crisp v. Tyson's Corner Dodge, Inc., 1 Va. App. 503, 504, 339

S.E.2d 916, 916 (1986)).   "'It lies within the commission's

authority to determine the facts and the weight of the evidence,

and its findings in that regard, when supported by credible

evidence, will not be disturbed on appeal.'"   Dominion Assocs.

Group, Inc. v. Queen, 17 Va. App. 764, 767, 441 S.E.2d 45, 46

(1994) (quoting Rose v. Red's Hitch & Trailer Serv., Inc., 11 Va.

App. 55, 60, 396 S.E.2d 392, 395 (1990)).

     Code § 65.2-101(2)(g) provides that, within the meaning of

the workers' compensation statute, the term "employee" does not

include "[f]arm and horticultural laborers, unless the employer

regularly has in service more than two full-time employees."      See

also Cotman v. Green, 4 Va. App. 256, 258-59, 356 S.E.2d 447, 448

(1987) (explaining that, unlike non-farm employers, farm

employers must have three full-time employees to be covered by

the statute).   In Lynch, 12 Va. App. at 934, 406 S.E.2d at 424,

this Court explained:
          The words "full-time" have plain and common
          meaning. Suffice it to say that "full-time
          employment" imports a sense of permanence
          coupled with a commitment between the
          employer and employee whereby the latter's



                                 3
             normal employment capacity is essentially
             utilized.


     The parties do not dispute that claimant and his mother were

full-time employees of employer.       We hold that the finding of the

commission that Willard was not a full-time employee is supported

by the evidence.    Wendall Radford testified that Willard worked

twenty hours a week on his farm, and was a part-time employee.

He explained that Willard closely watched his twenty-hour limit,

and warned employer when he was approaching twenty hours.      Ann

Radford also testified that Willard worked part-time at

employer's farm.
     While claimant and his mother testified that Willard was a

full-time employee, neither could confirm Willard's work

schedule.    The commission found the testimony of claimant and his

mother "somewhat vague," and assigned greater weight to the

testimony of employer and his witnesses.      "We do not retry the

facts before the Commission, nor do we review the weight,

preponderance of the evidence, or the credibility of witnesses."

 Jules Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 69, 334

S.E.2d 592, 595 (1985).    Because credible evidence supports the

finding of the commission, we will not disturb that finding on

appeal.     Id. (citing Caskey v. Dan River Mills, 225 Va. 405, 411,

302 S.E.2d 507, 510 (1983)). 1

     1
      In light of our decision in this case on jurisdictional
grounds, we do not reach employer's secondary defense of
employee's willful misconduct.



                                   4
        Claimant also argues that the commission erred in failing to

accord him a presumption that Willard's testimony would have been

adverse to employer because employer failed to produce him. 2     We

find no error in this ruling.      In Virginia, it is a "settled rule

that the unexplained failure of a party to call an available

material witness gives rise to an inference, sometimes called a

presumption, that the testimony of such absent witness would be

adverse to such party."       Neeley v. Johnson, 215 Va. 565, 573, 211

S.E.2d 100, 107 (1975) (citing, inter alia, Williams v. Vaughan,
214 Va. 307, 310, 199 S.E.2d 515, 517 (1973)).      "Availability of

a witness is one essential element for invoking the 'missing

witness' rule."       Faison v. Hudson, 243 Va. 397, 406, 417 S.E.2d

305, 310 (1992) (quoting Neeley, 215 Va. at 573, 211 S.E.2d at

107).       "[N]onavailability may be due to the person's absence from

the jurisdiction, his illness, the party's ignorance of the

whereabouts of the witness, the person's testimony being

inadmissible, or other like circumstances."       Neeley, 215 Va. at

573-74, 211 S.E.2d at 107.

        The deputy commissioner found that, "There is no evidence

that the defendant has any control over Willard or his actions,
        2
      Claimant argues that Willard did not appear because his
testimony would have disclosed a scheme to fraudulently collect
food stamps. Both the deputy commissioner and the commission
found that the evidence did not support claimant's allegation of
fraud against employer. The commission's finding on this point
is supported by the testimony of Wendall and Ann Radford, and we
will not disturb this finding on appeal. Dominion Assocs. Group,
Inc., 17 Va. App. at 767, 441 S.E.2d at 46 (citing Rose, 11 Va.
App. at 60, 396 S.E.2d at 395).




                                     5
and Willard's failure to appear both at the hearing and for his

deposition cannot reasonably be imputed to the defendant."     This

finding is supported by the evidence.   Claimant subpoenaed

Willard to appear at the hearing before the deputy commissioner,

but Willard did not appear.   Claimant attempted to subpoena

Willard to appear at a deposition, but the Henry County Sheriff's

Office informed claimant that Willard's last known residence had

been vacated, and they were unable to locate him.   Claimant

employed an investigator to find Willard, but the search was

unsuccessful.   Claimant's own evidence shows that Willard was

absent from the jurisdiction.   The missing witness rule,

therefore, is inapplicable because Willard was not available to

employer.
     Finally, claimant argues that the commission erred in

failing to consider the value of perquisites provided by employer

to Willard in evaluating whether Willard was a full-time

employee.   The "Notes from the Workers' Compensation Commission"

appended to Code § 65.2-101 provide values assigned to employment

perquisites such as meals and lodging which are to be included in

the calculation of an employee's "average weekly wage" as defined

in Code § 65.2-101.   The Virginia Workers' Compensation Act

Annotated 58-59 (1996).

     The evidence supports the commission's finding that the

perquisites furnished by employer did not convert Willard into a

full-time employee.   The commission noted that employer provided




                                 6
Willard with a place to live, but found that this perquisite did

not necessarily mean that Willard was a full-time employee.    Dr.

Castle and Roger Radford testified that dairy farmers typically

provide housing to their employees.   Employer had also furnished

claimant and his mother with a place to live in the past, in

addition to their full-time wages, supporting the inference that

the provision of housing did not constitute in-kind compensation

for hours worked.
     Assuming without deciding that the "Notes" promulgated by

the commission are binding upon them, the schedule of perquisites

does not mandate a finding that Willard was a full-time employee.

The schedule of perquisites only provides values to be used in

determining the "average weekly wage" of an employee.   In this

case, the average weekly wage of claimant was not at issue, and

it is not determinative of the question before us.   Rather, the

issue was the factual question of whether Willard was a full-time

employee, which the commission decided after examining all the

evidence, including perquisites furnished by employer to Willard.

     We therefore affirm the decision of the commission.

                                                        Affirmed.




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