                    COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia


WADE MICHAEL SHELDON
                                      MEMORANDUM OPINION *
v.   Record No. 0655-98-4          BY JUDGE WILLIAM H. HODGES
                                       JANUARY 12, 1999
SPIRITS RESTAURANT, A/K/A
 J.J. NIKITAKIS & COMPANY,
 INC. AND VIRGINIA HOSPITALITY
 GROUP SELF-INSURANCE ASSOCIATION,
 LANDIN, INC.

         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Peter A. Cerick for appellant.

           R. Ferrell Newman (Anne M. Dobson; Thompson,
           Smithers, Newman & Wade, on brief), for
           appellees.



     Wade Michael Sheldon ("claimant") contends that the Workers'

Compensation Commission ("commission") erred in finding that he

was an independent contractor rather than an employee of Spirits

Restaurant ("employer") at the time of his January 14, 1996

injury by accident.    Because we find as a matter of law that the

evidence was sufficient to prove that claimant was an employee

rather than an independent contractor, we reverse the

commission's decision.
          This appeal does not present a case of
          conflicting evidence or a dispute concerning
          the commission's findings of fact. When the
          issue is the sufficiency of the evidence and
          there is no conflict in the evidence, the
          issue is purely a question of law. This
          Court is not bound by the legal
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
           determinations made by the commission. "[W]e
           must inquire to determine if the correct
           legal conclusion has been reached."


Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416

S.E.2d 708, 711 (1992) (quoting City of Norfolk v. Bennett, 205

Va. 877, 880, 140 S.E.2d 655, 657 (1965)) (other citations

omitted), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993).

     James Nikitakis testified that he is the president of a

corporation which runs a restaurant business, including the

Grapevine Restaurant.   The building which houses the Grapevine

Restaurant and some attached apartments was damaged by fire and

smoke.   Nikitakis directed Johnnie Green to oversee and complete

the renovation and repair of the building.   Green worked for

Nikitakis as a salaried employee, managing some of the

corporation's restaurants and performing maintenance and

renovation work.   Green and his helper, Scotty Cox, began

performing the repair work on the apartments.
     Shortly thereafter, claimant, an experienced carpenter,

sought work from Nikitakis.   Nikitakis sent claimant to talk to

Green about working on the repair and renovation job.    Claimant

stated that he went to the worksite and that Green organized what

he wanted claimant to do.   Claimant's primary duties involved

installing a window and a closet.   Claimant also helped to change

sheet rock and assisted the electrician.   Green showed claimant

how he wanted the window installed with pressure treated wood up

against the brick and then trimmed with 1 x 1's on the outside



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and framed.   Green also told claimant how he wanted some old

doors put in a closet.   At times, Nikitakis was present on the

jobsite and gave instructions to Green and claimant.   Upon

completion of the job, if no more work was available, claimant

would have sought work elsewhere.   Claimant was paid $13 per hour

with no taxes withheld, as had been the practice when he had

worked for Nikitakis in the past.   Claimant did not receive a W-2

Form or a 1099 Form.
     Green testified that he gave claimant instructions on the

material to use for the window sill and the trim.   Green told

claimant how he wanted the window to look when completed.

Nikitakis provided the materials for the job, but claimant

furnished his own tools.    Green viewed himself as claimant's

supervisor.   Nikitakis would have made any decision regarding

whether to fire claimant.

     Claimant and Green stated that their work hours were set by

Green.   Green had a key to the building and provided claimant

with access into the building at the start of the workday.

Claimant stayed on the job until Green locked up and left at the

end of the day.   Green also decided when he and claimant took a

break or had lunch.

     It was undisputed that on January 14, 1996, claimant

sustained a near amputation of his left thumb while working on

the repair and renovation of the apartments.

     Generally, an individual "'is an employee if he works for




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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.     See Behrensen, 10 Va. App. at 367, 392

S.E.2d at 510.    However, "'it is not the actual exercise of

[this] control, but the right [to] control,' that is

determinative."     James v. Wood Prods. of Virginia, 15 Va. App.

754, 757, 427 S.E.2d 224, 226 (1993) (quoting Hann v.

Times-Dispatch Publ'g Co., 166 Va. 102, 106, 184 S.E. 183, 185

(1936)).

     It was undisputed that employer paid claimant wages by the

hour and reserved the power to fire him.       When employer hired

claimant, Nikitakis did not negotiate with claimant for him to

perform the job.    Rather, Nikitakis told claimant to report to

Green, who then gave claimant instructions and supervised

claimant on the job.    Green provided access to the jobsite for

claimant.    Green set claimant's work hours and break times.

Green instructed claimant on how he wanted the window and closet



                                 - 4 -
completed, and Nikitakis provided the materials.

     The testimony of claimant, Green, and Nikitakis was

sufficient to prove as a matter of law that employer retained the

right to control "the means and methods" by which claimant

performed his work.   "[W]ithout rejecting the testimony before

it, the commission could not have concluded that [claimant] was

an independent contractor.   Because the commission did not reject

the testimony, we must conclude that its decision rests upon the

incorrect conclusions of law it expressed and that it erred in

denying [claimant] compensation."      Id. at 758, 427 S.E.2d at 226.

     For these reasons, the commission's decision is reversed.

                                                           Reversed.




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