                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia


KYU H. LEE, t/a JAY'S FOOD MARKET
                                       MEMORANDUM OPINION * BY
v.   Record No. 0721-96-2            JUDGE JAMES W. BENTON, JR.
                                          OCTOBER 29, 1996
LEA ANE BEAVER and
 UNINSURED EMPLOYER'S FUND


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            David L. Epperly, Jr. (Epperly, Follis &
            Schork, P.C., on brief), for appellant.

            Maurice H. Bell, Jr., for appellee Lea Ane
            Beaver.

            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 Uninsured Employer's Fund.


     Kyu H. Lee, trading as Jay's Food Market, appeals from an

award of workers' compensation benefits to his employee, Lea Ane

Beaver.    Lee contends that no credible evidence supports the

commission's findings that he had three or more employees

regularly in service and that Beaver had not engaged in willful

misconduct in violation of a safety rule.    Because the findings

are supported by credible evidence, we affirm the commission's

award.



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

     Beaver suffered a severe injury to her hand on January 24,

1994, when she attempted to dislodge meat from the blade of a

meat grinding machine.   Beaver lost all or part of four fingers

and suffered damage to her thumb.       She filed a claim for

temporary total disability benefits, temporary partial disability

benefits, and related medical benefits.

     Lee and the Uninsured Employer's Fund defended against

Beaver's claim on the ground that the commission did not have

jurisdiction over Lee because he did not have three or more

employees regularly in service.    They also argued that Beaver's

injury resulted from her willful violation of a safety rule.
                                  II.

     The principle is well established that "[f]actual findings

of the . . . Commission will be upheld on appeal if supported by

credible evidence."   James v. Capitol Steel Constr. Co., 8 Va.

App. 512, 515, 382 S.E.2d 487, 488 (1989).      "In determining

whether credible evidence exists, the appellate court does not

retry the facts, reweigh the preponderance of the evidence, or

make its own determination of the credibility of the witnesses."
 Wagner Enter., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d

32, 35 (1991).   Thus, "[t]he fact that contrary evidence may be

in the record is of no consequence if there is credible evidence

to support the Commission's findings."       Russell Loungewear v.
Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986).




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        The standard for our review of the evidence is equally well

settled.    On appeal, "we review the evidence in the light most

favorable to the prevailing party."      R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

"Where reasonable inferences may be drawn from the evidence in

support of the commission's factual findings, they will not be

disturbed by this Court on appeal."      Hawks v. Henrico County Sch.

Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
                                 III.

        The evidence proved that Jay's Food Market was open every

day, for a total of eighty-eight hours per week.     Beaver

testified that during her three years of employment, at least

three individuals always worked with Lee at the store.     She

specifically identified Mrs. Lee, who is appellant's wife, Ms.

Kim, and Yung Lee.    Katie Duncan, Candy Speas, Angela Speas, and

Mary Ramirez, all of whom Lee had employed, also testified that

three or more employees were working at the store at various

times.

        In addition, Lee's quarterly tax returns showed that Lee had

more than three employees listed in three of the quarters of

1993.    His return for the third quarter of 1993 contained no

entry in the space designated for the number of employees.       For

the quarter ending on December 31, 1993, less than a month before

Beaver's injury, Lee reported that he employed four employees.

Although Lee stated that he did not have three or more employees



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working for him, he acknowledged that family members and other

individuals assisted him at the store.    He testified, however,

that they were not paid for their help.   He also acknowledged

that some employees were given cash payments that were not

recorded on the books.   After stating that he could not recall

all the names of his employees, Lee identified approximately

nineteen people who worked in his food market in the

eighteen-month period prior to Beaver's injury.
     Based upon the proof in the record, the commission found as

follows:
              Upon review of the evidence, we find that
           at least three or more employees were
           required to carry out the established mode of
           this employer's business and that there were
           three or more employees regularly in service.
            In this case, we find that the employer's
           minor children were not employees. However,
           we find that services provided by Mrs. Lee
           and Ms. Kim were not gratuitous and that they
           were employees. Both performed vital
           functions for the business, Mrs. Lee as a
           cashier and Ms. Kim providing coverage on
           Sundays. Likewise, we find that Yung Lee's
           services (security duties) were not
           gratuitous and were essential in carrying out
           the established mode of business.


     We hold that the testimony of Beaver and the other former

employees of the food market provide credible evidence to support

the commission's findings.   The direct evidence and inferences

drawn from the tax reports provide additional credible evidence

to support the commission's findings.

                                IV.

     "To prevail upon a defense of willful misconduct . . . ,



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[Lee] had to establish (1) that the safety rule was reasonable,

(2) that the rule was known to [Beaver], (3) that the rule was

for [Beaver's] benefit, and (4) that [Beaver] intentionally

undertook the forbidden act."     Spruill v. C.W. Wright Constr.

Co., 8 Va. App. 330, 334, 381 S.E.2d 359, 360-61 (1989).

"Willful misconduct requires something more than negligence."

Uninsured Employer's Fund v. Keppel, 1 Va. App. 162, 164, 335

S.E.2d 851, 852 (1985).    The issues whether an employee engaged

in willful misconduct and violated a safety rule are issues of

fact.     See Mills v. Virginia Elec. & Power Co., 197 Va. 547, 551,

90 S.E.2d 124, 127 (1955).

        Upon its review of the testimony of Beaver and three of the

former employees, the commission found as follows:
             Testifying by deposition, Beaver stated
          that she was unaware of any rule concerning
          the operation of the meat grinder,
          specifically one that mandated the use of the
          plunger in order to free meat jams. Beaver's
          testimony that she never was instructed how
          to use the meat grinder was supported by
          three co-workers. The employer, Kyu H. Lee,
          testified that he showed Beaver how to
          operate the meat grinder and that his
          explanation included the use of the plunger.
           Kyu admitted, however, that he paid little
          attention to whether or not the plunger was
          employed in freeing meat clogs in the
          grinder.


        The record contains credible evidence to support the

commission's finding that Lee had not proved the existence of a

safety rule.    Furthermore, credible evidence in the record

supports the commission's finding that Beaver's injury was not



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the result of intentional conduct.




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                                V.

     Finally, we address Beaver's motion to dismiss the Uninsured

Employer's Fund as a party to this appeal.   The Uninsured

Employer's Fund failed to file a written response to that motion.

     Although the commission's ruling was adverse to Lee and the

Uninsured Employer's Fund, the Uninsured Employer's Fund did not

file either a notice of appeal or an appellant's brief.   Instead,

it filed an appellee's brief and asserted that the commission's

award should be overturned because Lee employed fewer than three

employees.
     We agree with Beaver's argument that when the Uninsured

Employer's Fund challenged the award, the Fund was required by

the Rules to file an appellant's brief within the time specified

by Rule 5A:19(b).   Cf. Rule 5A:11(f) ("Whenever two . . . cases

were tried together in the . . . Commission, one notice of appeal

and one record may be used to bring all such cases before the

Court of Appeals . . . .").   We also note that in an earlier

appeal of this case, which this Court dismissed because it was

taken from an interlocutory order, the Uninsured Employer's Fund

filed a notice of appeal and an appellant's brief.   The Fund

offers no support in the Rules for the method it chose to pursue

in this appeal.   Accordingly, we grant Beaver's motion to dismiss

the Uninsured Employer's Fund as an appellee in this appeal.

     For these reasons, we affirm the commission's award.
                                              Affirmed.




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