                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


JESSE E. BOWLING, JR.

v.   Record No. 1540-96-3                        MEMORANDUM OPINION *
                                                     PER CURIAM
P & G OIL CORPORATION t/a                         DECEMBER 10, 1996
 P & G TRUCKING CORPORATION AND
 THE UNINSURED EMPLOYER'S FUND


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (James B. Feinman; Esther S. McGuinn, on
           brief), for appellant.

           (J. Gorman Rosenberger, Jr.; Wilson, Garbee &
           Rosenberger, on brief), for appellee P & G
           Oil Corporation t/a P & G Trucking
           Corporation.

           (James S. Gilmore, III, Attorney General;
           Robert L. Walker, Assistant Attorney General;
           John J. Beall, Jr., Assistant Attorney
           General, on brief), for appellee The
           Uninsured Employer's Fund.



     Jesse E. Bowling, Jr. ("claimant") contends that the

Workers' Compensation Commission ("commission") erred in denying

him compensation benefits on the ground that he was an

independent contractor, rather than an employee of P & G Oil

Corporation ("P & G"), at the time of his industrial accident.

Upon reviewing the record and the briefs of the parties, we

conclude that this appeal is without merit.   Accordingly, we

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

     "What constitutes an employee is a question of law; but
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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).   Generally, an individual "'is an

employee if he works for wages or a salary and the person who

hires him reserves the power to fire him and the power to

exercise control over the work to be performed.      The power of

control is the most significant indicium of the employment

relationship.'"   Behrensen v. Whitaker, 10 Va. App. 364, 367, 392

S.E.2d 508, 509-10 (1990) (quoting Richmond Newspapers, Inc. v.
Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843 (1982)).       See also

Stover v. Ratliff, 221 Va. 509, 512, 272 S.E.2d 40, 42 (1980).

The employer/employee relationship exists if the power to control

includes not only the result to be accomplished, but also the

means and methods by which the result is to be accomplished.

Behrensen, 10 Va. App. at 367, 392 S.E.2d at 510.      Unless we can

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

burden of proving that he worked for P & G as an employee rather

than an independent contractor, the commission's findings are

binding and conclusive upon us.       Tomko v. Michael's Plastering

Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     In holding that an employee/employer relationship did not

exist between claimant and P & G, the commission found as

follows:
           Even without considering the Contract
           Agreement itself, we agree with the Deputy
           Commissioner's conclusion that the claimant
           was an independent contractor. . . . The
           Deputy Commissioner found the defendants



                                  2
           credible in their testimony regarding the
           claimant's autonomy in selecting his own
           loads and determining his routes and
           schedule. While we are not bound by these
           credibility determinations, we will not
           arbitrarily reject them. The evidence
           reflects that the claimant was given a list
           of brokers whom he was to contact to obtain
           loads to haul. These brokers advanced
           claimant expenses for the trip. The claimant
           reported daily on his whereabouts to the
           defendant, who paid the claimant twenty-five
           percent of the proceeds. The corporation
           owned and maintained the truck, as well as
           the ICC license. However, the claimant was
           free to turn down loads, and chose his own
           routes. These factual findings point towards
           an independent contractor relationship.

     In its role as fact finder, the commission accepted the

testimony of P & G's witnesses and rejected claimant's testimony

with regard to his employment status.      It is well settled that

credibility determinations are within the fact finder's exclusive

purview.   Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374,

381, 363 S.E.2d 433, 437 (1987).       The testimony of P & G's

witnesses supports the commission's finding that claimant was not

an employee of P & G under the Workers' Compensation Act ("the

Act").   Accordingly, we cannot say as a matter of law that

claimant's evidence sustained his burden of proof.

     We also find no merit in claimant's argument that even if

the commission did not err in finding that he was an independent

contractor, it erred in not holding P & G responsible to him for

workers' compensation benefits pursuant to Code § 65.2-302.       Code

§ 65.2-302(A)(1) does not provide workers' compensation benefits

to independent contractors who are not employees under the Act.


                                   3
Rather, Code § 65.2-302(A)(1) renders an owner liable for

workers' compensation benefits to workers employed by a

subcontractor, where the owner has contracted with the

subcontractor for the subcontractor to perform work which is a

part of the owner's trade, business, or occupation.   Code

§ 65.2-302 has no applicability to the facts of this case.

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

                                             Affirmed.




                                4
