                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


TACTICAL GROUP, INC.

v.    Record No. 1675-95-3                      MEMORANDUM OPINION *
                                                    PER CURIAM
JIMMY RAY LUCAS,                                 DECEMBER 29, 1995
J. H. PENCE COMPANY,
FIRST OF GEORGIA INSURANCE COMPANY, AND
UNINSURED EMPLOYERS' FUND

AND
UNINSURED EMPLOYERS' FUND

v.    Record No. 1635-95-3

TACTICAL GROUP, INC.,
JIMMY RAY LUCAS, J. H. PENCE COMPANY, AND
FIRST OF GEORGIA INSURANCE COMPANY


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Mark D. Kidd; Osterhoudt, Ferguson, Natt, Aheron &
             Agee, P.C., on brief), for Tactical Group, Inc.

             (Terry L. Armentrout; Roger Ritchie & Partners,
             P.L.C., on brief), for Jimmy Ray Lucas.

            (William C. Walker; Donna White Kearney; Taylor &
      Walker, on briefs), for J. H. Pence Company
            and First of Georgia Insurance Company.

            (James S. Gilmore, III, Attorney General; John J.
      Beall, Jr., Senior Assistant Attorney General;
      Christopher D. Eib, Assistant Attorney General, on
      brief), for Uninsured Employers' Fund.




      Tactical Group, Inc. ("Tactical") contends that the Workers'

Compensation Commission erred in finding that (1) Jimmy Ray Lucas

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
was an employee of Tactical rather than an independent

contractor; (2) Tactical employed three or more workers, making

it subject to the Workers' Compensation Act ("the Act"); (3)

Lucas earned an average weekly wage of $613.02; and (4) Lucas

proved he sustained an injury by accident arising out of and in

the course of his employment.   The Uninsured Employer's Fund

("the Fund") cross-appeals and contends that the commission erred

in (1) allowing J.H. Pence Company ("Pence"), the statutory

employer, to raise a Code § 65.2-600 notice defense at the July

27, 1994 hearing; (2) finding that Lucas did not give Pence

timely notice of his September 20, 1993 injury by accident; and

(3) refusing to dismiss Lucas' application when he failed to

appear at the second evidentiary hearing on January 12, 1995.

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

conclude that these appeals are without merit.   Accordingly, we

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

             TACTICAL'S APPEAL: RECORD NO. 1675-95-3
             I.   Employee vs. Independent Contractor

     "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).   On appellate review, the findings of

fact made by the commission will be upheld when supported by

credible evidence.   James v. Capitol Steel Constr. Co., 8 Va.

App. 512, 515, 382 S.E.2d 487, 488 (1989).



                                  2
     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, 893

(1982)).   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.    Id. at 367, 392 S.E.2d at 510.

     Claimant testified that Tazwell K. McDole, Tactical's owner,

hired him to install school lockers in Spotsylvania County.

McDole paid Lucas by the hour, not by the job.    Lucas did not use

his own tools.   Instead, he used tools provided by Tactical or

Pence.   McDole decided when and where Lucas would work.   On

various occasions, McDole showed Lucas the layout of the jobsite.

Lucas built the lockers and McDole retained responsibility over

their placement.   According to Lucas and co-workers Reese Painter

and Mike Woodward, Lucas supervised the job, keeping time cards

and distributing paychecks to other employees for McDole.

    The testimony of claimant, Painter, Woodward, and McDole

provides credible evidence to support the commission's finding

that the right to control the Spotsylvania job clearly rested

with McDole.    Accordingly, the commission did not err in ruling



                                  3
that Lucas was Tactical's employee.




                                4
            II.   Applicability of the Act to Tactical

     An employer who has three or more employees regularly in

service in the same business in Virginia is subject to the Act.

Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448 (1987).

     In ruling that the Act applied to Tactical, the commission

found as follows:
          While McDole testified that he is merely a
          "job shopper" who finds work for Pence, the
          weight of the evidence establishes that
          McDole, in his business capacity with
          Tactical, is in the business of installing
          school equipment. He has hired three or more
          employees in order to carry out that
          business. The evidence does not support a
          finding that Tactical was subcontracting this
          work to independent contractors. Each worker
          was paid on an hourly basis, and Tactical had
          the ability to control monetary disbursement,
          work conditions, and the end result. We find
          that the co-workers were in the same status
          as [Lucas], i.e., an employee of Tactical.

The testimony of claimant, Painter, Woodward, and McDole provides

credible evidence to support these findings.      Accordingly, the

commission did not err in concluding that the Act applied to

Tactical.

                     III.   Average Weekly Wage

     The commission calculated Lucas' $613.03 average weekly wage

by dividing the net wages he actually earned on the Spotsylvania

job ($3,503.00) by the forty days he worked for Tactical.

Tactical contends that the commission erred by not dividing the

$3503.00 by fifty-two weeks.   We disagree.

     "It was the duty of the Commission to make the best possible




                                  5
estimate of . . . impairments of earnings from the evidence

adduced at the hearing, and to determine the average weekly

wage . . . ."    Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.

435, 441, 339 S.E.2d 570, 573 (1986).   In the absence of a fifty-

two week pay history, the average weekly wage may be calculated

by "dividing the earnings during that period [the employee

worked] by the number of weeks . . . which the employee earned

wages . . . , provided that results fair and just to both parties

will be thereby obtained."   Code § 65.2-101 ("Average weekly

wage").    The calculation of average weekly wage "is a question of

fact to be determined by the Commission which, if based on

credible evidence, will not be disturbed on appeal."    Id.   "Thus,

if credible evidence supports the commission's findings regarding

the claimant's average weekly wage, we must uphold those

findings."    Chesapeake Bay Seafood House v. Clements, 14 Va. App.

143, 146, 415 S.E.2d 864, 866 (1992).

     The record proved that Lucas worked forty days on the

project.   Thus, the commission reasoned that "[d]ividing the

wages earned with this employer by 52 weeks would not produce an

equitable result."   Nothing in the record suggests that this

method was not fair and just to both parties.   Credible evidence

supports the commission's method of calculating Lucas' average

weekly wage, and it is not contrary to the provisions of Code

§ 65.2-500.   Accordingly, the commission did not err in awarding

Lucas benefits based upon an average weekly wage of $613.03.



                                  6
                      IV.   Injury by Accident

     Tactical argues that Lucas was not credible, and, therefore,

the commission erred in finding that he proved that he sustained

an injury by accident arising out of and in the course of his

employment on September 20, 1993.      However, "[i]n determining

whether credible evidence exists, the appellate court does not

retry the facts, reweigh the preponderance of the evidence, or

make its own determination of the credibility of the witnesses."
 Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d

32, 35 (1991).

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.     R.G. Moore Bldg. Corp. v.

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

testified that, on September 20, 1993, he sustained a back injury

when he fell while carrying lockers down a flight of stairs.        The

commission, in its role as fact finder, reviewed the witnesses'

testimony and the medical records, and resolved any

inconsistencies in favor of Lucas.     Lucas' testimony is

consistent with the history he reported to Dr. Frederick Fox, his

treating physician.   Lucas' testimony, the medical records, and

McDole's testimony (that Lucas notified him of the accident

several days after it occurred) provide credible evidence to

support the commission's finding that Lucas sustained a

compensable back injury on September 20, 1993.     Thus, we are

bound by this finding on appeal.



                                   7
          THE FUND'S CROSS-APPEAL: RECORD NO. 1635-95-3

                I. and II.   Pence's Notice Defense

     The Fund contends that the commission erred in allowing

Pence to raise a lack of notice defense, Code § 65.2-600, at the

July 27, 1994 hearing because Pence did not list lack of notice

as one of its defenses in its answers to interrogatories.    The

record supports the commission's finding that, at the beginning

of the July 1994 hearing, Pence adopted all of Tactical's

defenses, which included a lack of notice.   Thus, the Fund knew

from the beginning of the hearing that Pence intended to rely

upon lack of notice as a defense.    The record also shows that the

deputy commissioner provided the Fund with an adequate

opportunity to take further evidence on Pence's defense at the

second evidentiary hearing held on January 12, 1995.   Because the

record shows that Pence's course of action did not result in

prejudice to the Fund, we cannot say that the commission abused

its discretion in allowing Pence to rely upon the lack of notice

as a defense.
     Moreover, credible evidence, including the testimony of

Lucas and McDole, supports the commission's finding that Pence

did not receive timely notice of Lucas' accident as required by

Code § 65.2-600.   Although McDole testified that he informed

Pence's general manager that someone had been injured on a

Stafford County job, he did not testify that he specifically

notified Pence of Lucas' September 20, 1993 accident on the



                                 8
Spotsylvania County job.     When Stephen P. Hawkins, vice president

of Pence, was questioned concerning the notice issue, Lucas

stipulated that he did not give Pence timely notice of his

accident.

     Because credible evidence supports the commission's finding

that Pence did not receive timely notice of Lucas' accident as

required by Code § 65.2-600, the commission did not err in

dismissing Pence as a party defendant.
           III.   Lucas' Failure to Appear at Second Hearing

     The Fund also contends that the commission erred in not

dismissing Lucas' application because he failed to appear at the

second hearing on January 12, 1995.     The record shows that the

commission informed all parties that the purpose of the second

hearing was to resolve the Show Cause Order against Tactical and

to take additional evidence on the notice issue.

     Lucas stipulated at the first hearing that he did not give

timely notice of his accident to Pence.     Thus, because Lucas had

no further evidence to offer on the notice issue and the show

cause issue did not concern him, Lucas' counsel informed the

deputy commissioner that he and Lucas would not appear at the

second hearing unless ordered to do so.     If the Fund wanted to

take additional evidence from Lucas concerning the notice issue,

the Fund could have ensured Lucas' attendance at the second

hearing.    The Fund did not request a subpoena, and Lucas did not

appear.



                                   9
     Based upon this record, we cannot say that the Commission

abused its discretion by refusing to dismiss Lucas' application.

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

                                    Affirmed.




                               10
