                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Bray, Annunziata and Overton


JON W. JUNGERS t/a
 RICHMOND MODULAR
                                                  MEMORANDUM OPINION *
v.   Record No. 1207-98-2                             PER CURIAM
                                                   OCTOBER 27, 1998
NORMAN REED POWERS


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            (Phyllis L. Bean, on brief), for appellant.
            (Ruth E. Nathanson; Maloney, Huennekens,
            Parks, Gecker & Parsons, on brief), for
            appellee.



     Jon W. Jungers t/a Richmond Modular ("Richmond Modular")

contends that the Workers' Compensation Commission ("commission")

erred in finding that (1) Norman Reed Powers ("claimant") was an

"employee" of Richmond Modular; (2) employer failed to prove that

claimant's willful failure or refusal to use a safety appliance

barred his claim pursuant to Code § 65.2-306(A)(4); and (3)

Richmond Modular was an "employer" subject to a fine under the

Workers' Compensation Act ("the Act") for failing to carry

workers' compensation insurance.    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.    See Rule 5A:27.



     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                            I. and III.

     "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.   See James v. Capitol Steel Constr. Co., 8 Va.

App. 512, 515, 382 S.E.2d 487, 488 (1989).
     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)).   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.   See id. at 367, 392 S.E.2d at 510.

     In holding that claimant was an employee of Richmond

Modular, the commission made the following findings:
          [T]he claimant and his co-workers credibly
          testified that they were paid on an hourly
          basis based upon time sheets that they had to
          turn in to the employer. In addition, the
          workers were not required to bring their own
          tools; were directed by the employer to
          particular jobsites; were directed by the
          employer to be at the worksite by 7:00 a.m.;
          and were reimbursed for traveling expenses.



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          Furthermore, the particular job on which the
          claimant was injured supports the claimant's
          statement that the employer retained control.
           When uncertain as to whether or not to use a
          backhoe, the claimant requested advice from
          the employer and that advice was given.
          Therefore, as the Deputy Commissioner
          correctly noted, the credible testimony of
          the claimant and his co-workers indicate that
          Richmond Modular regularly employed at least
          three people who were not independent
          contractors but, instead, employees of
          Richmond Modular.


     The testimony of claimant and his co-workers, Tim

Christiansen, Benjamin Ragland, and Charles Smelser, provide

ample credible evidence to support the commission's findings.

Their testimony supports a finding that Richmond Modular

controlled not only the result, but also the means and methods by

which the work was to be accomplished.   Thus, we find that

credible evidence supports the commission's findings, and those

findings indicate that claimant was Richmond Modular's employee

pursuant to the Act.
     The testimony of claimant and his co-workers also provides

credible evidence to support the commission's finding that

Richmond Modular employed at least three or more employees.

Thus, the commission did not abuse its discretion in issuing a

fine of $1,500 against Richmond Modular for failure to maintain

workers' compensation insurance pursuant to Code § 65.2-800.

                               II.

     Code § 65.2-306(A)(4) provides as follows:   "No compensation

shall be awarded to the employee . . . for an injury . . . caused




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by: . . . 4.   The employee's willful failure or refusal to use a

safety appliance or perform a duty required by statute . . . ."

"Whether an employee is guilty of willful misconduct is a

question of fact to be resolved by the commission and the

commission's finding is binding on appeal if supported by

credible evidence."   Adams ex rel. Boysaw v. Hercules, Inc., 21

Va. App. 458, 463, 465 S.E.2d 135, 137 (1995).

     In holding that employer failed to prove that claimant

committed willful misconduct, the commission found as follows:
          The employer's assertion that the claimant
          did not follow a commonly known safety
          procedure is insufficient to establish the
          affirmative defense of willful misconduct.
          The fact that the claimant sought out the
          employer's advice as to the use of a backhoe
          in taking down a chimney clearly shows that
          the claimant did not have a wrongful
          intention in going about the job. Instead,
          he sought out the appropriate way to take
          down the wall and was instructed in how to do
          so. Given the claimant's inexperience in
          chimney demolition and the lack of any
          express safety standard by the employer, the
          employer clearly has not met his burden of
          proving that claimant's injury was due to his
          willful misconduct.


     Claimant's testimony provides credible evidence to support

the commission's findings.   Claimant testified that he had never

demolished a chimney before and sought instruction from employer,

but received no safety directions.     No evidence showed that

employer ever held safety meetings; that employer ever

promulgated safety rules; or that employer ever told its

employees, including claimant, to shore the chimney by using a



                               - 4 -
brace.   Thus, no evidence proved that claimant intended to commit

an act which he knew, or should have known, was wrongful or

forbidden.
             "'Wilful' . . . imports something more than a
             mere exercise of the will in doing the act.
             It imports a wrongful intention. An
             intention to do an act that he knows, or
             ought to know, is wrongful, or forbidden by
             law. . . . There cannot, however, be a
             wilful failure to perform an unknown duty."


Brockway v. Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161

(1995) (quoting King v. Empire Collieries Co., 148 Va. 585,
590-91, 139 S.E. 478, 479 (1927)).

     Because credible evidence supports the commission's

findings, we cannot say that the commission erred in ruling that

employer failed to prove that claimant was guilty of willful

misconduct.

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

                                                             Affirmed.




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