                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, * Judge Elder and
          Senior Judge Duff
Argued at Alexandria, Virginia


UNINSURED EMPLOYER'S FUND
                                              OPINION BY
v.   Record No. 0693-97-4                JUDGE CHARLES H. DUFF
                                           FEBRUARY 10, 1998
ROSA L. HARPER


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           Paul S. Stahl, Assistant Attorney General
           (James S. Gilmore, III, Attorney General;
           John J. Beall, Jr., Senior Assistant Attorney
           General, on brief), for appellant.

           Charles P. Monroe (Duncan and Hopkins, P.C.,
           on brief), for appellee.



     The Uninsured Employer's Fund ("the Fund") appeals a

decision of the Workers' Compensation Commission ("commission")

awarding compensation benefits to Rosa L. Harper ("claimant").

The Fund contends the commission erred in finding that (1) the

issue of jurisdiction was res judicata because the Fund did not
appeal the commission's March 14, 1996 review opinion; and (2)

Lomax A.M.E. Zion Church ("the local church" or "employer") had

three employees regularly in service in Virginia, thereby

allowing the commission to exercise jurisdiction over claimant's

claim for benefits.   For the following reasons, we reverse the

commission's decision.


     *
      On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
                            Background

     On December 28, 1994, claimant, a secretary employed by the

local church, slipped and fell on a wet concrete floor while

walking into the church building.    As a result, she injured her

right knee and back.   At the time of claimant's accident, the

local church did not carry workers' compensation insurance.     As

of the date of the accident, James Gaskill worked for employer as

a custodian. 1
     Reba Nettles, the chairwoman of the trustees board of the

local church, testified that at an annual conference of the

national A.M.E. Zion Church ("the parent church"), the bishop

appointed Reverend Lamb as pastor of the local church.    Although

the local church members may suggest to the bishop at the annual

conference that a pastor be removed, the bishop has final

decision-making power over the hiring, firing, or transfer of a

pastor.

     With respect to Reverend Lamb's day-to-day planning for the

local church, he received direction from the bishop and

suggestions from the local church members.   The local church

provided Reverend Lamb with an allowance, including a place to

live and travel expenses.   The board of trustees of the local

church determined the hours and type of work performed by

     1
      The Fund and employer do not dispute that claimant and
Gaskill were employees of the local church. The relevant issue
is whether Reverend Joseph Lamb was an employee of the local
church at the time of claimant's accident.



                                 2
claimant and Gaskill.   Reverend Lamb is a member of the local

church's board of trustees.    The bishop and Reverend Lamb

determined the hours and type of work he performed for the local

church.   Nettles testified that the local church determined and

paid Reverend Lamb's salary.   The local church also contributed

to a general fund administered by the parent church, which is

used to pay the pastor's pension.

     Reverend Lamb testified that the bishop appointed him to the

local church.   Reverend Lamb stated that he will remain at the

local church until the bishop decides to transfer him elsewhere

or until he requests a transfer.       Reverend Lamb stated that the

bishop is the governing authority who decides whether a pastor

will be assigned to a particular church in the diocese.      The

local church members vote each year whether they wish to retain

the pastor.   If they wish to have the pastor removed, they send a

delegate to the annual conference to make their wish known.

However, the bishop makes the final decision as to whether the

pastor is actually removed.
     Although Reverend Lamb received a salary from the local

church, the local church did not deduct or pay his taxes.

Reverend Lamb estimated his taxes on a quarterly basis and paid

his taxes as a self-employed individual.      Reverend Lamb's duties

are governed by the Book of Discipline of the Zion Church, a book

of rules and laws established by the parent church.      The bishop

also oversees Reverend Lamb's work as a pastor.




                                   3
     In an October 31, 1995 decision, the deputy commissioner

ruled that Reverend Lamb was not an employee of the local church.

The deputy commissioner found that the local church employed

only two individuals, claimant and Gaskill.   Accordingly, the

deputy commissioner held that the local church was not subject to

the commission's jurisdiction.

     In a March 14, 1996 opinion, the full commission reversed

the deputy commissioner's decision and found that Lamb was an

employee of the local church.    Thus, the commission found that

the local church employed three or more persons.   Accordingly,

the commission ruled that the local church was subject to the

commission's jurisdiction.   The full commission remanded the case

to the deputy commissioner for a determination on the record

regarding the claim for benefits.
     Employer noted a timely appeal to this Court from the

commission's March 14, 1996 decision.   However, by order dated

July 12, 1996, we dismissed employer's appeal because employer

did not file an opening brief before the time for doing so had

expired.    The Fund did not appeal the commission's March 14, 1996

decision.

     On November 15, 1996, the deputy commissioner issued an

opinion on the merits of the claim for benefits.   The deputy

commissioner found that claimant proved she sustained an injury

by accident arising out of and in the course of her employment on

December 28, 1994.   The deputy commissioner awarded claimant




                                  4
temporary total and temporary partial disability benefits for

various time periods and imposed a $500 penalty against employer

for failing to carry workers' compensation insurance.    The Fund

sought review of this decision on the jurisdiction issue and on

the merits of the claim.

     In a February 18, 1997 opinion, the full commission refused

to address the jurisdiction issue, finding that "[t]he issue of

jurisdiction, once decided and not perfected on appeal, is

therefore res judicata."   In so ruling, the commission referred

to employer's appeal, which this Court had dismissed.    The

commission affirmed the deputy commissioner's finding that

claimant proved an injury by accident arising out of and in the

course of her employment and the findings with respect to

disability and the penalty imposed.

                                I.

     Code § 65.2-706 provides that "[n]o appeal shall be taken

from the decision of one Commissioner until a review of the case

has been had before the full Commission, as provided in Code

§ 65.2-705, and an award entered by it.   Appeals shall lie from

such award to the Court of Appeals . . . ."   "[T]he words 'such

award' . . . [contained in § 65.2-706] mean final award, that is,

a decision of the . . . Commission granting or denying, or

changing or refusing to change, some benefit payable or allowable

under the . . . Act and leaving nothing to be done except to

superintend ministerially the execution of the award."    Jewell




                                 5
Ridge Coal Corp. v. Henderson, 229 Va. 266, 269, 329 S.E.2d 48,

50 (1985).

     The commission's determination of the jurisdiction issue in

its March 14, 1996 opinion and its subsequent remand of the case

to the deputy commissioner for a determination of the merits of

the claim for benefits did not constitute a final award

appealable to this Court.     See id.   Moreover, the fact that

employer appealed the commission's decision to this Court and

elected not to pursue that appeal, which was dismissed for want

of prosecution, did not render the commission's decision final

and did not deprive the Fund of its right to appeal the

jurisdiction issue to this Court.
     Furthermore, the March 14, 1996 opinion did not adjudicate

"the principles of a cause."    Code § 17-116.05(4).   The

commission merely held that it had jurisdiction over the

employer, and it remanded the case to the deputy commissioner for

further proceedings.    The merits of the case had not been

addressed, and the opinion was interlocutory and not determinable

of the controversy.    See generally Polumbo v. Polumbo, 13 Va.

App. 306, 411 S.E.2d 229 (1991); Weisenbaum v. Weisenbaum, 12 Va.

App. 899, 407 S.E.2d 37 (1991); Pinkard v. Pinkard, 12 Va. App.

848, 407 S.E.2d 339 (1991).    Accordingly, this Court was without

jurisdiction to entertain an appeal of the March 14, 1996

opinion. 2   Furthermore, the Fund was not required to join the
     2
      In its March 14, 1996 opinion, the commission stated:
"This Opinion shall be final unless appealed to the Virginia



                                   6
employer in its appeal at the risk of losing its right to appeal

the jurisdiction issue when a final order was entered.   The Fund

was not required to join in a futile appeal of an interlocutory

order.

     Accordingly, we reverse the commission's decision finding

the jurisdiction issue res judicata.

                               II.
               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
          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)), aff'd, 245 Va. 337,

428 S.E.2d 905 (1993).

     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
(..continued)
Court of Appeals within thirty days." The opinion was
interlocutory, not final, and the commission incorrectly stated
that it was final. The commission's incorrect statement cannot
serve to grant this Court jurisdiction over an appeal where there
is no statutory basis for that jurisdiction.
     Moreover, we are puzzled by the commission's language that
the "Opinion shall be final unless appealed . . . ." (Emphasis
added.). An opinion is either final or interlocutory when
written. Its finality does not depend on whether an aggrieved
party appeals the opinion.



                                7
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)).   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 id. at 367, 392 S.E.2d at 510.
     Here, the commission erroneously analyzed this issue as one

of whether Reverend Lamb was an employee of the local church or

an independent contractor.   We agree that the evidence did not

establish that Reverend Lamb was an independent contractor.

However, our analysis does not end with that conclusion.   The

determinative issue is whether Reverend Lamb was an employee of

the local church.

     The evidence established that, although the local church

provided the facilities and paid Reverend Lamb's salary, the

power of control over his work as a pastor emanated from the

bishop, who is affiliated with the parent church.    The bishop,

not the local church, appointed Reverend Lamb as pastor of the

local church, and the bishop reserved the right to terminate or

transfer Reverend Lamb's employment.   In addition, the rules

governing Reverend Lamb's tenure as pastor of the local church

derived from the Book of Discipline established by the parent

church, not from the local church's members or board of trustees.



                                 8
     Under these circumstances, we find as a matter of law that

Reverend Lamb was not an employee of the local church. 3

Accordingly, because the local church did not have three or more

employees regularly in service in Virginia at the time of

claimant's industrial accident, the commission erred in

exercising jurisdiction over the claim for benefits.   Therefore,

we reverse the commission's decision awarding compensation

benefits to claimant.
                                                           Reversed.




     3
      We are not presented with the issue of whether Reverend
Lamb was an employee of the parent church and accordingly express
no opinion on that issue.



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