                     COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


ALICE E. WAGGLE

v.    Record No. 0556-96-4

JOHN M. LANG & SUSAN A. LANG, t/a
 KILLAHEVLIN
                                            MEMORANDUM OPINION * BY
and                                          JUDGE CHARLES H. DUFF
                                               NOVEMBER 19, 1996
SHELLEY A. MARTIN
v.    Record No. 0557-96-4

JOHN M. LANG & SUSAN A. LANG, t/a
 KILLAHEVLIN


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Jerry O. Talton (Nikolas E. Parthemos;
            Prosser, Parthemos & Bryant, P.C., on
            briefs), for appellants.

            Dana L. Rust (John M. Oakey, Jr.; Matthew S.
            Bryant; McGuire, Woods, Battle & Boothe,
            L.L.P., on briefs), for appellees.



      Alice E. Waggle ("Waggle") and Shelley A. Martin ("Martin")

appeal a decision of the Workers' Compensation Commission denying

their applications for compensation benefits.       Waggle and Martin

contend that the commission erred in finding that they were not

employees of John M. Lang and Susan A. Lang, t/a Killahevlin

pursuant to the provisions of the Workers' Compensation Act ("the

Act").    Finding no error, we affirm the commission's decision.
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     When Martin's and Waggle's accident occurred on May 25,

1994, they were working for the Langs.   Their jobs involved

stripping paint from a tower wall on one of the buildings at

Killahevlin, a bed and breakfast owned by the Langs.   Martin and

Waggle had been working on the tower for two days prior to May

25, 1994.   John Lang had instructed Martin and Waggle to strip

the paint off the entire outside wall on the tower.    As Martin

and Waggle stood on an eight by four foot porch and worked

opposite each other stripping paint from the upper wall, the

porch collapsed, causing them to fall to the ground.   Martin and

Waggle sustained multiple injuries.
     Martin began working for the Langs in April 1994.    She

worked five days per week, eight hours per day, and earned $7.50

per hour.   The Langs usually paid her by check each Friday, but

on occasion gave her money on the day she worked.   At times, the

Langs paid Martin in cash.

     From April 1994 until May 25, 1994, Martin scraped and

sanded radiators, windows and doors at Killahevlin.    Martin

stated that at the time of her accident, the Langs also employed

Henry Sloane, Melvin Baugher, Tommy Daniels, Alice Waggle, and

others whom she could not remember.   Martin stated that John Lang

showed her how to strip walls.

     Waggle testified that she began working for the Langs in

early 1993.   She sanded, stripped paint, and, at times, cleaned

rooms.   She may also have worked during this period of time for




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one or two weeks for Melvin Baugher.     Waggle stated that she

worked forty hours per week, Monday through Friday, and she

earned between $7 and $10 per hour, depending on the difficulty

of the job.    When Waggle first started working for the Langs,

they paid her in cash, but later paid her by check on a weekly

basis.    Waggle stated that John Lang set her work hours, provided

all her tools, told her what to do when she got to work, was

present on the jobsite, controlled her work performance, and

showed her how to perform various job tasks.    Waggle stated that

the Langs employed several other individuals at the time of her

accident.
        Wendy Clooney testified that she accepted telephone calls at

her home on behalf of Waggle.    Clooney stated that John Lang

called her home ten to fifteen times to tell Waggle when to be at

work.

        John Lang testified that Killahevlin is a bed and breakfast,

which he and his wife have been renovating for five-and-one-half

years.    They also live in the house.   John Lang stated that he

hires various contractors, carpenters, and day laborers to work

on the renovations.    He did not withhold taxes or social security

for any of these individuals.    John Lang claimed that he did not

supervise the independent contractors who helped renovate the

house.    He characterized these individuals as casual laborers

because they did not have regular work schedules.    Instead, they

worked only when the Langs needed them.




                                   3
     John Lang testified that he hired Waggle in 1993 and paid

her $7.50 per hour.      He stated that Waggle's main task was to

sand woodwork, and that Waggle did not work continuously for him

up until the time of the accident, but that she also worked for

Baugher.    John Lang stated that Waggle first brought Martin to

the jobsite.      He stated that he paid Martin $7.50 per hour and

she did not work a set schedule.          Martin and Waggle kept track of

the hours they worked by writing them on a calendar provided by

the Langs.    John Lang denied that he supervised Martin and Waggle

when they performed work on the tower.           He admitted that in order

to make the bed and breakfast profitable he had to renovate the

house, but asserted that he did not run a home renovation

business.    He admitted that he provided all of Waggle's and

Martin's tools.     He also stated that he probably told Waggle and

Martin to strip the paint off the tower and suggested they use a

product called "Peel-Away."        He had shown Waggle how to use
Peel-Away on a previous occasion.

     Code § 65.2-101 defines "employee" as follows:
          1. a. Every person . . . in the service of
          another under any contract of hire or
          apprenticeship, written or implied, except
          (i) one whose employment is not in the usual
          course of the trade, business, occupation or
          profession of the employer or (ii) as
          otherwise provided in subdivision 2 of this
          definition.


                     *    *    *    *    *         *    *
             2.   "Employee" shall not mean:


                     *    *    *      *      *     *    *



                                      4
                 e.   Casual employees.

     Waggle and Martin bore the burden of proving that they were

employees of the Langs.    Craddock Moving & Storage Co. v.

Settles, 16 Va. App. 1, 3, 427 S.E.2d 428, 430 (1993), aff'd, 247

Va. 165, 440 S.E.2d 613 (1994).

     "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.2d 246, 247 (1929).    "Deciding what is the trade,

business, or occupation of an entity is a 'mixed question of law

and fact' and is a question that 'does not readily yield to

categorical or absolute standards.'"      Henderson v. Central Tel.

Co. of Virginia, 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987)

(quoting Bassett Furniture v. McReynolds, 216 Va. 897, 902, 224

S.E.2d 323, 326 (1976)).

     The commission found that the Langs were not in the business

of purchasing and restoring historical properties; rather, they

were in the business of operating a bed and breakfast.     The

commission held that "the preparation of the proper facilities to

conduct that business by restoration or renovation does not

constitute 'periodic, regular, or permanent' activities that are

part of the usual course of the trade, business, or occupation of

the employer."   The commission found that although the renovation

was essential to the establishment of the Langs' bed and

breakfast, it was not part of the Langs' regular and permanent



                                  5
operations.   Thus, the commission agreed that Waggle and Martin

were not independent contractors, yet they did not qualify as

"employees" under Code § 65.2-101.

     In Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162

(1972), the Supreme Court set forth the test this Court must use

to determine whether Waggle and Martin were engaged in the Langs'

trade, business, or occupation:
               [T]he test is not one of whether the
          subcontractor's activity is useful,
          necessary, or even absolutely indispensable
          to the statutory employer's business, since,
          after all, this could be said of practically
          any repair, construction or transportation
          service. The test (except in cases where the
          work is obviously a subcontracted fraction of
          a main contract) is whether this
          indispensable activity is, in the business,
          normally carried on through employees rather
          than independent contractors.

Id. at 722, 187 S.E.2d at 167.   This test "works best in cases

involving private businesses because those entities often define

their trade, business, or occupation by their conduct.    With

regard to such entities, what they do on a day-to-day basis

provides a reasonably reliable indicator of their trade,

business, or occupation."   Henderson, 233 Va. at 383, 355 S.E.2d

at 599.

     In Mims v. McCoy, 219 Va. 616, 248 S.E.2d 817 (1978), the

Supreme Court held that the work performed by a carpenter in

doing renovations for a farmer on his riverfront cabin was in no

way connected to the farmer's usual occupation, and therefore,

the commission erred in ruling that the carpenter was an employee



                                 6
covered by the Act.   Id. at 619, 248 S.E.2d at 819.

     In this case, although the record established that the work

Waggle and Martin performed for the Langs was not casual, and

that John Lang maintained a degree of control over the means and

methods Waggle and Martin used to accomplish their work, the

evidence failed to show that Waggle's and Martin's work fell

within the Langs' usual trade, business, or occupation.   Thus,

the commission did not err in finding that Waggle and Martin were

not "employees" covered under the Act.   The work Waggle and

Martin performed, i.e., renovation and restoration of the

Killahevlin buildings, was not part of the Langs' regular or

permanent business of running a bed and breakfast inn nor did the

evidence prove that the Langs expected the bed and breakfast

employees to perform such work.
     For the reasons stated, we affirm the commission's decision.

                                              Affirmed.




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