                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Coleman, Annunziata and Senior Judge Cole


BETTER HOME SERVICES, INC.
                                             MEMORANDUM OPINION*
v.   Record No. 1776-00-4                         PER CURIAM
                                              NOVEMBER 21, 2000
ISABEL MEDRANO AND
 UNINSURED EMPLOYER'S FUND


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (John J. O'Donnell, Jr., on brief), for
             appellant.

             (Arturo Hernandez, on brief), for appellee
             Isabel Medrano.

             No brief for appellee Uninsured Employer's
             Fund.


     Better Home Services, Inc. ("BHS") contends that the

Workers’ Compensation Commission erred in finding that Isabel

Medrano (claimant) was its employee rather than an independent

contractor at the time of her compensable injury by 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.     See Rule 5A:27.

     "The Workers' Compensation Act covers employees but not

independent contractors."     County of Spotsylvania v. Walker, 25

Va. App. 224, 229, 487 S.E.2d 274, 276 (1997).      This distinction

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
must be determined from the facts of each case, with the burden

upon the person seeking benefits under the Act to prove the

relationship contemplated by the Act.   Id. at 229-30, 487 S.E.2d

at 276; see Code § 65.2-101.   Although the commission's factual

findings are binding and conclusive on appeal, when they are

supported by credible evidence, see James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989), a

"[d]etermination of the relationship involves a mixed question

of law and fact which is reviewable on appeal."   County of

Spotsylvania, 25 Va. App. at 230, 487 S.E.2d at 276.

     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)).

          [T]he right of control includes not only the
          power to specify the result to be attained,
          but the power to control "the means and
          methods by which the result is to be
          accomplished." An employer/employee
          relationship exists if the party for whom
          the work is to be done has the power to
          direct the means and methods by which the
          other does the work. "[I]f the latter is
          free to adopt such means and methods as he
          chooses to accomplish the result, he is not
          an employee but an independent contractor."


                               - 2 -
Intermodal Servs., Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d

221, 224 (1988) (citations omitted).

     In holding that an employee/employer relationship existed

between claimant and BHS, the commission found as follows:

               Both parties point to different
          documents designating the claimant either as
          a subcontractor or an employee. BHS notes
          that the claimant signed a subcontractor
          agreement with BHS in 1993. The claimant
          points out that [Yvonne] Elton[, BHS's
          owner,] represented the claimant as an
          employee on the claimant's green card
          applications.

               While these documents are indicative of
          the parties' intent, and the intent of the
          parties is a factor to be considered, it is
          not determinative. The parties cannot
          merely designate or agree to a legal status
          in derogation of the relationship as
          established by the facts of a particular
          case, but the Commission must look behind
          the agreement to determine the actual
          relationship and the "status in fact."

               *    *    *    *    *    *    *

               Ms. Elton did more than just solicit
          the cleaning work. In addition, to
          solicitation, Ms. Elton determined each
          day's work schedule by providing the
          addresses of the houses and the order in
          which to clean the houses. [BHS] paid
          homeowners for any damage and Ms. Elton
          would charge each worker. Ms. Elton was the
          primary contact point. If a homeowner had a
          problem, the homeowner would contact Ms.
          Elton and Ms. Elton would try to remedy it.
          It is of little moment that Ms. Elton
          remedied the problem by enlisting the help
          of the supervisors. Ms. Elton had complete
          control over the supervisors by determining
          which worker would be promoted to




                              - 3 -
            supervisor. The relationship was not one of
            cooperation but of subordination.

(Footnote omitted.)

       The commission's findings are amply supported by credible

evidence in the record.   Claimant's testimony proved that Yvonne

Elton hired claimant in 1993 to clean houses.   At that time,

Yolanda, a driver/supervisor employed by BHS, trained claimant.

In 1995, Elton made claimant a driver/supervisor.   Claimant held

this position at the time of her accident.

       In her position as a driver/supervisor, BHS gave claimant a

list of houses to clean each day.   Claimant was then required to

pick up the other workers and drop them off at the specific

houses while driving a BHS van.   The van was leased from BHS

Leasing, a company owned by Elton's husband, to claimant.

Claimant testified that in 1996, Elton took her and other

drivers to get insurance on the vehicles.    The named insured on

the policy of insurance on the vehicle being driven by claimant

at the time of her accident was "Izabel Medrano DBA BHS Vehicle

Leasing."   Claimant believed that the vans were leased to BHS.

       Claimant was responsible for training the workers and for

making sure the houses were properly cleaned.   Claimant

testified that BHS provided vacuums, brooms, and mops, which

claimant picked up each morning and returned at the end of the

day.   She stated that at times, BHS provided cleaning supplies

and at times, the homeowner provided the cleaning supplies.


                                - 4 -
     For housecleaning, BHS paid claimant thirty-five percent of

the fee charged to the homeowner.    For driving, BHS paid

claimant $500 every two weeks.    She was not paid for travel

between homes.   She and the other workers were given 1099 forms,

and BHS did not withhold any taxes or social security from their

earnings.

     During the time claimant worked for BHS, she did not work

for anyone else and she did not clean houses on her own,

believing this was prohibited by BHS.     She had to ask Elton for

permission to miss a day of work.    Elton admitted that she fired

claimant after her accident, because claimant refused to sign a

document stating that she was a subcontractor.

     Mirna Villalta, another BHS worker, testified that claimant

was her supervisor and trained her.      She stated that claimant

drove the van and checked the work.      At that time, there were

twenty-four to twenty-five people working for BHS.     Villalta

testified that she did not work for anyone else and she was

required to inform Elton if she was going to miss work,

otherwise Elton would be "very upset."     Villalta stated that if

she broke something while on the job, Elton would be notified

and she would charge Villalta for the broken item.     Villalta

agreed that Elton provided vacuum cleaners and other equipment

and sometimes provided cleaning supplies.

     The testimony of claimant and Villalta support the

commission's findings.   Contrary to employer's contention, the

                                 - 5 -
use of a system of supervisors to accomplish the work did not

change the relationship between BHS and claimant from one of

employer/employee to an independent contractor relationship.

Based upon this evidence, the commission could reasonably

conclude that BHS exercised the requisite control over claimant

to make her its employee.   For these reasons, we affirm the

commission's decision.

                                                         Affirmed.




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