                     COURT OF APPEALS OF VIRGINIA


Present:    Judge Annunziata, Senior Judges Hodges and Coleman


ESTATE OF NORMAN RAY PELFREY
                                             MEMORANDUM OPINION*
v.   Record No. 0647-03-3                         PER CURIAM
                                                 JULY 8, 2003
SAM V. SORAH T/A SAM'S GUN SHOP AND
 UNINSURED EMPLOYER'S FUND


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (D. Edward Wise, Jr.; Arrington, Schelin &
             Herrell, P.C., on brief), for appellant.

             (Jerry W. Kilgore, Attorney General; John J.
             Beall, Jr., Senior Assistant Attorney
             General; James W. Osborne, Special Counsel
             and Assistant Attorney General, on brief),
             for appellee Uninsured Employer's Fund.

             No brief for appellee Sam V. Sorah t/a Sam's
             Gun Shop.


     The Estate of Norman Ray Pelfrey contends the Workers'

Compensation Commission erred in ruling (1) it lacked

jurisdiction to consider the claim filed by Kitty L. Pelfrey

(claimant) because employer had less than three employees

regularly employed within the Commonwealth on August 10, 2000,

the date of Pelfrey's injury and death; and (2) the doctrine of

res judicata did not apply to bar the deputy commissioner from

reconsidering whether the commission had jurisdiction.      Upon


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
reviewing the record and the parties' briefs, we conclude that

this appeal is without merit.    Accordingly, we summarily affirm

the commission's decision.    Rule 5A:27.

                             Jurisdiction

               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. "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." We are
          bound by the commission's findings of fact
          if those findings are supported by credible
          evidence. On appeal, we construe the
          evidence in the light most favorable to the
          employer, the party prevailing below.

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

(2001) (footnote omitted) (citations omitted).

     Pursuant to Code § 65.2-101, the term "Employee" includes

"every executive officer, including president, vice president,

secretary, treasurer or other officer" of a corporation, except

for certain executive officers who have rejected coverage

pursuant to Code § 65.2-300. 1

     In ruling that employer proved by a preponderance of the

evidence that it had fewer than three employees regularly in

service within the Commonwealth at the time of Pelfrey's injury

and death, the commission found as follows:



     1
       It was undisputed that neither Sam nor Mary Sorah filed
the required rejection notice with the commission.
                             - 2 -
          The Deputy Commissioner credited the
          testimony of Sam and Mary Sorah and, based
          on this testimony, concluded that the
          employer regularly employed fewer than three
          employees at the time of the claimant's
          injury. Mr. Sorah testified that his mother
          resigned as the employer's secretary,
          treasurer, and director before the
          claimant's injury and death, leaving him as
          the employer's sole officer, director and
          shareholder, and Mrs. Sorah substantiated
          her son's testimony. We find no reason to
          disturb the Deputy Commissioner's
          credibility determination.

               We also find that the Deputy
          Commissioner's decision is supported by the
          documentary evidence, and, in particular,
          the minutes from the employer's board of
          directors' meeting on March 5, 2000,
          reflecting Mrs. Sorah's immediate
          resignation. Pursuant to Code § 13.1-695,
          an officer may resign from a corporation "at
          any time by delivering notice to the
          corporation" and pursuant to Code
          § 13.1-679, a corporate director can resign
          at any time by "delivering written notice to
          the board of directors, its chairman, the
          president or the secretary." Mrs. Sorah
          testified that she told her son, the
          employer/corporation's president, that she
          wished to resign. She also signed the
          minutes from the meeting on March 5, 2000,
          and these minutes provided written notice
          that she was being "removed from all
          association with the corporation due to her
          health." Under the circumstances, we find
          that as of March 5, 2000, before the
          decedent's injury and death, the employer
          had no more than two employees regularly in
          service in the Commonwealth-that is, Mr.
          Sorah and the decedent.

     The commission, as fact finder, found the testimony of Sam

and Mary Sorah to be credible.   It is well settled that

credibility determinations are within the fact finder's

                             - 3 -
exclusive purview.     Goodyear Tire & Rubber Co. v. Pierce, 5

Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).    Their testimony,

coupled with the written minutes of the March 5, 2000 Board of

Directors' meeting, established that Mary Sorah orally and in

writing resigned as an officer and director of the corporation

as of March 5, 2000.    That testimony and the written minutes

constitute credible evidence to support the commission's factual

findings that Mary Sorah was not an "employee" at the time of

Pelfrey's injury and death on August 10, 2000.    Accordingly, we

cannot disturb those findings on appeal.    Based upon those

findings, the commission did not err in determining that the

employer had only two employees regularly in service within the

Commonwealth on the date of Pelfrey's injury and death and,

therefore, was not subject to the Act.

                             Res Judicata

     Claimant argues that the commission was barred by the

doctrine of res judicata from considering the issue of

jurisdiction because that issue was previously litigated when

Deputy Commissioner Herring rejected the parties' voluntary

submission of a proposed settlement on August 8, 2001.    In his

August 8, 200l letter to the parties and J. Jasen Eige,

employer's counsel, Deputy Commissioner Herring wrote as

follows:

                After careful review of the materials
           submitted to me in the settlement of this

                                - 4 -
          claim, I regret that I am unable to enter
          the proposed order. . . .

           *      *      *      *       *     *        *

               For Mr. Eige's [employer's counsel]
          benefit, I note that the firm's annual
          report on file with the State Corporation
          Commission at the time of Mr. Pelfrey's
          death listed two corporate officers, Sam and
          Mary J. Sorah. Mr. Pelfrey, as the third
          employee, would bring the firm within
          coverage of the Workers' Compensation Act
          and consequently, subsection 65.2-512(A).

           *      *      *      *       *     *        *

               This case is returned to the
          Commission's claims department for referral
          to the hearing docket.

(Footnote omitted.)

     In Lowes of Christiansburg v. Clem, 37 Va. App. 315, 557

S.E.2d 745 (2002), we recognized that

          in a proper case "principles of res judicata
          apply to Commission decisions." Where
          applicable, the principle "bars relitigation
          of the same cause of action, or any part
          thereof which could have been litigated
          between the same parties and their privies."
          "One who asserts the defense of res judicata
          has the burden of proving by a preponderance
          of the evidence that an issue was previously
          raised and decided by [the commission] in a
          prior cause of action."

Id. at 322, 557 S.E.2d at 748 (citations omitted).    Unless we

can say as a matter of law that claimant's evidence sustained

her burden of proof, the commission's findings are binding and

conclusive upon us.   See Tomko v. Michael's Plastering Co., 210

Va. 697, 699, 173 S.E.2d 833, 835 (1970).


                              - 5 -
     In ruling that the doctrine of res judicata did not bar

Deputy Commissioner Burchett from considering whether the

commission had jurisdiction to consider claimant's claim against

the employer, the commission found as follows:

               We find that the Deputy Commissioner's
          statement regarding the employer's corporate
          officers within his letter rejecting the
          proposed settlement did not constitute a
          final judgment in the claimant's favor to
          which the doctrine of res judicata applies.
          There is also no evidence that the issue of
          the number of "employees" was ever actually
          "litigated" before Deputy Commissioner
          Herring.

     The record established that the employer, claimant, and the

Uninsured Employer's Fund neither actually litigated nor could

have finally litigated the issue of the number of employees

regularly in service in the Commonwealth at the time of

Pelfrey's injury and death before Deputy Commissioner Herring

when he considered whether to approve the settlement agreement.

In addition, the Uninsured Employer's Fund was not before the

commission at that time.   Deputy Commissioner Herring considered

the proposed settlement, rejected it, and then returned the case

to the hearing docket for further proceedings.   Thus, the

statements contained in his August 8, 2001 letter did not

constitute a final ruling or decision on the merits of the issue

of the number of employees regularly in service.   The issue of

jurisdiction was before the deputy initially and continued to be

an issue at each stage of the proceedings.

                              - 6 -
     Based upon this record, the doctrine of res judicata did

not apply to bar the commission from considering whether the

employer had three employees so as to fall within the Act so

that the commission would have jurisdiction over the claim.

     For these reasons, we affirm the commission's decision.

                                                        Affirmed.




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