                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia


THE UNINSURED EMPLOYERS' FUND

v.         Record No. 0328-95-2      MEMORANDUM OPINION *
                                 BY JUDGE SAM W. COLEMAN III
JOHN MAYFIELD,                        NOVEMBER 7, 1995
 SCOTT DIXON t/a AMERICAN RETROFIT MANAGEMENT,
 ARMADA-HOFFLER CONSTRUCTION COMPANY and
 FARMINGTON CASUALTY CO.

         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Christopher D. Eib, Assistant Attorney General
           (James S. Gilmore, III, Attorney General; Richard
           L. Walton, Jr., Senior Assistant Attorney General;
           John J. Beall, Jr., Senior Assistant Attorney
           General, on brief), for appellant.

           C. Ervin Reid (Wright, Robinson, McCammon,
           Osthimer & Tatum, on brief), for appellees
           Armada-Hoffler Construction Company and Farmington
           Casualty Co.

           No brief or argument for appellees John Mayfield
           and Scott Dixon t/a American Retrofit Management.



     In this workers' compensation case, the Uninsured Employers'

Fund (Fund) appeals the commission's award of benefits to John

Mayfield (claimant) for injuries suffered while working for

American Retrofit Management (Retrofit), an uninsured sole

proprietorship.   The Fund contends that the commission erred in

finding that (1) Retrofit employed regularly in service three or

more employees, and (2) Armada-Hoffler Construction Co. (Armada-

Hoffler) was not liable under the Workers' Compensation Act as
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the statutory employer because claimant did not have a reasonable

excuse for failing to provide Armada-Hoffler with timely notice

of the claim.    We affirm the commission's award.

                                  I.

     Code § 65.2-101 ("Employee") 2.h excludes from the

definition of employees covered by the Act "[e]mployees of any

person, firm or private corporation, including any public service

corporation, that has regularly in service less than three

employees in the same business within this Commonwealth".     In

determining whether the employer has three or more employees

regularly in service, the commission focuses on "the character of

the business" rather than "the character of the employment

relationship."     Cotman v. Green, 4 Va. App. 256, 259, 356 S.E.2d

447, 448 (1987).    On appeal, this Court will sustain the

commission's findings of fact when supported by credible

evidence, even if the record contains evidence supporting

contrary findings.     See Crisp v. Brown's Tysons Corner Dodge,
Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1985).

     In the present case, Armada-Hoffler, the general contractor,

subcontracted to Retrofit to remove old pipes from a building

Armada-Hoffler was renovating.    The contract was the first and

only job Retrofit performed for Armada-Hoffler.      After obtaining

the contract, Retrofit hired two full-time employees to serve as

supervisors and contracted with a personnel agency to provide

temporary laborers.    Retrofit paid the personnel agency for the



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laborers and the agency in turn paid the workers as their

employees.   Although the temporary laborers were employees of the

personnel agency and the agency chose which workers it sent to

the jobsite, Retrofit could reject any of the workers.   Also,

when the laborers were on the job, they were subject to the

control and direction of Retrofit.    The agency generally provided

Retrofit with six or seven temporary workers each day.

     Credible evidence supports the commission's finding that

Retrofit "required the continuous presence of at least six, and

usually more, employees" to carry out its operations.    See

Cotman, 4 Va. App. at 259, 356 S.E.2d at 448 (stating that "[t]he

number of persons used to carry out the established mode of

performing the work of the business is determinative even though

the work may be recurrent instead of constant").   The fact that

the laborers were provided by a personnel agency and paid by the

agency does not prevent their being the employees of Retrofit.

Retrofit's contract was to remove pipes, and the laborers were

required as employees of Retrofit in its usual business to

perform its contract.   See Smith v. Hylton, 14 Va. App. 354, 356,

416 S.E.2d 712, 714 (1992); Cotman, 4 Va. App. at 259, 356 S.E.2d

at 448; see also Hoffer Bros. v. Smith, 148 Va. 220, 226, 138

S.E. 474, 476 (1927) (stating that "[t]he test is the nature of

the employment and not the nature of the contract").    Although

the personnel agency paid the laborers' wages, Retrofit paid the

agency based on the number of laborers it used on the job.     But



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more significant was Retrofit's ability to control the laborers

on the job, which was in furtherance of the usual business of

Retrofit, and Retrofit's ability to discharge the employees by

rejecting the laborers sent by the agency.    The right to control

how a worker performs the job and the right to discharge a worker

are significant indicia in determining whether an employer-

employee relationship exists under the Act.     Richmond Newspapers,

Inc. v. Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843 (1982);
Behrensen v. Whitaker, 10 Va. App. 364, 366, 392 S.E.2d 508, 509

(1990); see Code § 65.2-101 ("Employee") 1.a.    Accordingly, the

commission did not err in holding that Retrofit regularly

employed in service three or more employees.

                                II.

     An injured employee who fails to notify his employer of an

accident within thirty days of its occurrence is barred from

recovering against that employer unless the commission finds that

the employee had a reasonable excuse for failing to provide

timely notice and that the failure to give timely notice did not

prejudice the employer.   Code § 65.2-600(D); C. Richard Bogese
Builder, Inc. v. Robertson, 17 Va. App. 700, 706, 440 S.E.2d 622,

626 (1994).   Code § 65.2-600 requires that statutory employers as

well as actual employers receive notice of the claim.     Race Fork

Coal Co. v. Turner, 237 Va. 639, 644, 379 S.E.2d 341, 343-44

(1989); Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 896-97,

407 S.E.2d 32, 36 (1991).   Here, claimant suffered the injuries


                                -4-
giving rise to his claim on May 31, 1993, but Armada-Hoffler did

not receive notice of the claim until November 1993.   The

commission found that claimant did not have a reasonable excuse

for failing to provide Armada-Hoffler with notice of the claim

within the statutory period.

     A claimant can establish a reasonable excuse for failing to

give timely notice if he "can show that he was unaware of the

relationship [between the actual employer and the statutory

employer] and could not reasonably have known of it within the

30-day period."   Race Fork, 237 Va. at 644, 379 S.E.2d at 344.

Examples of situations that have been held to be reasonable

excuses include an employee who failed to give the statutory

employer timely notice because the actual employer misled the

employee about the identity of the statutory employer and an

employee who failed to give timely notice because the actual

employer misled him about what actions he had to take to be

compensated for his injuries.   See Bogese Builder, 17 Va. App. at

706-07, 440 S.E.2d at 626 (holding that the employee had a

reasonable excuse for failing to provide timely notice because

the actual employer provided the employee with the incorrect name

of the general contractor); Batal Builders, Inc. v. Hi-Tech
Concrete, Inc., 18 Va. App. 401, 405, 444 S.E.2d 555, 557 (1994)

(finding that the actual employer "informed claimant that he was

covered by their insurance policy and that notice to them was all

he had to do to be covered").   In the present case, Retrofit



                                -5-
informed claimant that it would "take care" of his medical bills.

 Retrofit did not indicate that he was covered by their

compensation coverage or would be paid compensation benefits.

There is no evidence that Retrofit misled claimant about the

identity of Armada-Hoffler or made any representations concerning

claimant's coverage under the Workers' Compensation Act.

Moreover, a sign at the jobsite gave notice that Armada-Hoffler

was the general contractor, and Armada-Hoffler maintained an

office at the jobsite.   Accordingly, credible evidence supported

the commission's finding that claimant was aware that Armada-

Hoffler was the general contractor on the project. 1   We therefore

affirm the commission's determination that claimant did not have

a reasonable excuse for failing to provide Armada-Hoffler with

timely notice within thirty days of the accident.

     Accordingly, we affirm the commission's award.

                                                           Affirmed.




     1
       Although claimant testified before the deputy commissioner
that he became aware that Armada-Hoffler was the general
contractor in the fall of 1993, more than thirty days after the
May 31, 1993 accident, "[t]he fact that there is contrary
evidence in the record is of no consequence if there is credible
evidence to support the commission's finding." Wagner
Enterprises, 12 Va. App. at 894, 407 S.E.2d at 35. This Court
"does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of the
witnesses." Id.


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