                     COURT OF APPEALS OF VIRGINIA


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


UNINSURED EMPLOYER'S FUND
                                                  OPINION BY
v.   Record No. 0991-99-4                   JUDGE CHARLES H. DUFF
                                                MARCH 28, 2000
DEREK M. KRAMER


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Gaye Lynn Taxey, Assistant Attorney General
             (Mark L. Earley, Attorney General; John J.
             Beall, Jr., Senior Assistant Attorney
             General, on brief), for appellant.

             Derek M. Kramer, pro se.


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

decision of the Workers' Compensation Commission (commission)

awarding benefits to Derek M. Kramer (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 April 14, 1998 decision; and (2) the commission

had jurisdiction over claimant's claim on the ground that

employer regularly employed three or more persons.     Although we

find the commission erred in ruling that its April 14, 1998

decision was res judicata with respect to the jurisdiction

issue, we affirm the commission's finding that it had

jurisdiction over the claim.
                         I.    Res Judicata

     In its April 14, 1998 opinion, the commission affirmed the

deputy commissioner's October 3, 1997 finding that the

commission had jurisdiction over the claim because employer

regularly employed three or more employees.      The commission also

affirmed the deputy commissioner's average weekly wage

determination and the award of medical benefits and temporary

total disability benefits, but it remanded the case to the

deputy commissioner for a ruling on claimant's permanent partial

disability ("PPD") claim.     Claimant included his PPD claim in

his original claim for benefits, but the deputy commissioner did

not address it at the time of the hearing.

     On October 28, 1998, the deputy commissioner issued an

opinion granting claimant PPD benefits.       The Fund appealed that

decision to the full commission, contending the deputy

commissioner erred in awarding PPD benefits and erred in finding

that employer regularly employed three or more employees.

     On March 26, 1999, the commission issued a decision

affirming the deputy commissioner's ruling awarding claimant PPD

benefits.   The commission also held that it no longer had

jurisdiction over the issue of whether employer regularly

employed three or more employees.    The commission found that

"[t]he [April 14, 1998 decision] was an Award and final order as

to those issues considered by both the Deputy Commissioner and

Full Commission, and was not an interlocutory decision."      The

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commission noted that the Fund did not appeal the April 14, 1998

decision to this Court and, therefore, reasoned that the issues

decided in the April 14, 1998 opinion were res judicata and the

commission no longer had jurisdiction to hear those issues.

     Our holding in Uninsured Employer's Fund v. Harper, 26 Va.

App. 522, 495 S.E.2d 540 (1998), controls this issue.      In

addressing a similar situation in Harper, we stated:

                 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 ministerally the
            execution of the award."

Id. at 527, 495 S.E.2d at 543 (citation omitted).

     The commission's April 14, 1998 opinion affirming the

deputy commissioner on the jurisdiction issue and its

accompanying remand of the case to the deputy commissioner for a

determination of claimant's entitlement to PPD benefits did not

constitute a final award appealable to this Court.     See id.

While an award existed which determined claimant's average

weekly wage and granted medical benefits and temporary total

disability benefits, it was not an award that left "nothing to

be done."   Under our holding in Harper, the Fund was not

                                - 3 -
required to appeal the jurisdiction issue until after the PPD

issue was fully determined on the merits by the commission on

remand.   In this case, the PPD claim was filed as part of the

original claim and not as a claim separate and apart from the

original claim for benefits.   The commission's March 26, 1999

opinion was a final, appealable order because it disposed of the

entire claim "leaving nothing to be done except to superintend

ministerally the execution of the award."     Id.   The Fund filed a

timely appeal from that decision and, therefore, we will address

the issue of whether the commission erred in finding that it had

jurisdiction over claimant's claim.

                         II.   Jurisdiction

     On appeal, the Fund contends the commission erred in

holding that employer regularly employed three or more employees

within the Commonwealth and, therefore, erred in its April 14,

1998 finding that employer was subject to the commission's

jurisdiction.   We disagree.

                The threshold jurisdictional issue
           which the commission had to decide was
           whether the employer regularly had in his
           service three or more employees so as to
           come within the coverage of the Act.
           "'Employee' means . . . [e]very person . . .
           in the service of another under any contract
           of hire or apprenticeship, written or
           implied, except . . . one whose employment
           is not in the usual course of the trade,
           business, occupation or profession of the
           employer." Both full-time and part-time
           employees who are regularly employed to
           carry out the trade or business of the
           employer must be counted in determining the

                                - 4 -
            number of employees "regularly in service"
            to the employer. "Any person hired by the
            employer to work in the usual course of the
            employer's business is an 'employee' under
            the Act regardless of how often or for how
            long he may be employed." The number of
            employees regularly in service of the
            employer is the number "used to carry out
            the established mode of performing the work
            of the business . . . even though the work
            may be recurrent instead of constant."

Smith v. Hylton, 14 Va. App. 354, 356, 416 S.E.2d 712, 714

(1992) (citations omitted).   "[O]nce an employee proves that his

or her injury occurred while employed in Virginia, an employer

has the burden of producing sufficient evidence upon which the

commission can find that the employer employed less than three

employees regularly in service in Virginia."    Craddock Moving &

Storage Co. v. Settles, 16 Va. App. 1, 2, 427 S.E.2d 428, 429

(1993), aff'd per curiam, 247 Va. 165, 440 S.E.2d 613 (1994).

     In affirming the deputy commissioner on the jurisdiction

issue, the commission adopted the deputy commissioner's

findings.   The deputy commissioner found as follows:

            Although he did not include himself in the
            quarterly reports filed during certain
            periods, Mr. [Jeffrey D. Stewart] was
            clearly an employee of the corporation by
            virtue of his status as an officer. The
            majority of work performed by the business
            was done by him with the assistance of at
            least two people. These employees were
            listed on quarterly reports. Moreover,
            there were other employees named by him that
            were not reflected on these reports,
            specifically, the claimant and Mr. [Crews].
            At the time of the claimant's accident, it
            was anticipated that the claimant, Mr.
            [Stewart] and Chris [Stewart] would continue

                                - 5 -
          to perform similar services for the
          remainder of the summer break. We find this
          sufficient to invoke jurisdiction.

     The testimony of Stewart and claimant, and employer's

payroll reports, accounting records, and 1995 W-2 wage and tax

statement copies amply support the commission's findings.      That

evidence established that at various times during the year

preceding claimant's injury by accident, employer "'used [three

or more employees] to carry out the established mode of

performing the work of the business . . . even though the work

[might have been] recurrent instead of constant.'"    Smith, 14

Va. App. at 386, 416 S.E.2d at 714 (citation omitted).    In

addition, the commission was entitled to accept claimant's

testimony that he and Chris Stewart had been hired to work the

remainder of the summer with Jeff Stewart.

     Employer argues the deputy commissioner impermissibly

relied upon certain documents filed with the Virginia Employment

Commission in violation of Code § 60.2-623.   The commission

found the error to be harmless, stating:   "Our review of the

evidence . . . leads us to conclude that the deputy commissioner

did not find that those reports were determinative on the

jurisdictional issue.   Indeed, she relates, 'There were other

employees named by [the employer] that were not reflected on

these [quarterly] reports . . . .'"    The direct evidence and

inferences drawn from that evidence support the commission's

finding that employer regularly employed three or more persons

                               - 6 -
and was, therefore, subject to the commission's jurisdiction.

Accordingly, we find as a matter of law that employer failed to

sustain its burden of proof.

     For these reasons, we affirm the commission's decision

finding that it had jurisdiction under the Act over claimant's

claim.

                                                        Affirmed.




                               - 7 -
Benton, J., concurring, in part, and dissenting, in part.

       I concur in Part II and in the judgment affirming the

award.    I do not join in Part I because I believe the commission

correctly held that Uninsured Employer's Fund v. Harper, 26 Va.

App. 522, 495 S.E.2d 540 (1998), does not decide the res

judicata issue presented by this case.

       Following an evidentiary hearing in Harper, the deputy

commissioner denied the employee's claim for benefits because

her employer did not employ three or more persons.      See 26 Va.

App. at 526, 495 S.E.2d at 542.   On its review, the commission

found that the employer did employ three or more persons and was

subject to the commission's jurisdiction.     See id.   Thus, the

commission remanded the case for a determination by the deputy

commissioner regarding the employee's claim for benefits.       See

id.    The jurisdictional ruling was "interlocutory and not

determina[tive] of the controversy."     Id. at 528, 495 S.E.2d at

543.   More importantly, the commission's ruling in Harper was

not accompanied by the entry of an award.

       This case arises in a significantly different procedural

posture.   The record establishes that Derek Kramer filed his

initial claim alleging he was injured by accident arising out of

and in the course of his employment with Santa's Helpers Chimney

Sweeps.    The commission made the following findings concerning

the proceedings:



                                - 8 -
          [T]he Deputy Commissioner in her Opinion of
          October 3, 1997, made findings regarding the
          status of [Kramer] and employer under the
          Act, calculated [Kramer's] pre-injury
          average weekly wage, and found that [Kramer]
          sustained a compensable injury on May 15,
          1995. Pursuant to those findings [, the
          deputy commissioner] entered an Award for
          both wage loss benefits and medical
          benefits. The jurisdictional and pre-injury
          average weekly wage issues were brought
          before the Full Commission, and the
          Commission affirmed the findings below. The
          affirmation was an Award and final order as
          to those issues considered by both the
          Deputy Commissioner and Full Commission, and
          was not an interlocutory decision.

     The record supports those findings.    Specifically, the

record reflects that the deputy commissioner entered "[a]n award

. . . on behalf of Derek Kramer against Santa's Helpers

providing for payment of temporary total disability benefits

. . . and medical benefits . . . for as long as necessary."     On

review, the commission ruled that "[t]he award . . . is AFFIRMED

as MODIFIED:    temporary total disability benefits shall be paid

to Derek M. Kramer in the weekly amount of $213.33 for the

period May 15, 1995 through August 31, 1995 . . . [and that]

medical care and treatment . . . shall remain the employer's

responsibility for as long as necessary."   On April 14, 1998 the

commission entered its award in favor of Kramer and remanded

only the issue of permanency.

     By statute, the commission's award has particular

significance.



                                - 9 -
             The award of the Commission, as provided in
             [Code] § 65.2-704, if not reviewed in due
             time, or an award of the Commission upon
             such review, as provided in [Code]
             § 65.2-705, shall be conclusive and binding
             as to all questions of fact. No 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 in the manner
             provided in the Rules of the Supreme Court.

Code § 65.2-706(A).    Applying this statute, the Supreme Court

has held that the term "award" means "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 Ridge Coal

Corp. v. Henderson, 229 Va. 266, 269, 329 S.E.2d 48, 50 (1985).

     The commission's award for temporary total disability

benefits was a ruling on the merits of the case, granting a

benefit to Kramer payable under the Act.    Nothing about the

award was interlocutory.    Indeed, the award "adjudicat[ed] the

principles of [the] cause."    Code § 17.1-405(4), recodifying

Code § 17-116.05(4).

     The issue becomes even clearer upon an examination of Holly

Farms Foods, Inc. v. Carter, 15 Va. App. 29, 422 S.E.2d 165

(1992).   Addressing the effect of an award, we noted the

following:



                                - 10 -
          [T]he commission expressly noted that, even
          though it found a compensable occupational
          disease, it was unable to "enter an award"
          due to a lack of evidence identifying
          periods of disability. Instead, as the
          commission noted, "[t]his decision is not
          final until the entry of the award of the
          Deputy Commissioner establishing periods of
          compensable disability." Especially in
          light of the commission's express
          recognition that its decision would not
          become final until the final determination
          of the periods of disability, we will not
          conclude that the deputy commissioner's
          duties on remand were merely "ministerial."

Id. at 34-35, 422 S.E.2d at 167.

     The entry of an award conferring a benefit to Kramer under

the Act is a significant, controlling fact that distinguishes

this case from Harper.   When the commission entered its award

for temporary total disability benefits on April 14, 1998, it

remanded the case to the deputy commissioner solely to determine

Kramer's permanency rating.   On review of the permanency issue,

the commission correctly ruled as follows:

             The issue of whether Santa's Helper
          Chimney Sweeps is an "Employer" under the
          Act, and [Kramer's] status under the Act
          were decided in the Commission's Opinion of
          April 14, 1998. No timely appeal of that
          final, non-interlocutory, order was noted by
          any party. Therefore, that portion of the
          Opinion, as well as the findings regarding
          [Kramer's] pre-injury average weekly wage,
          are binding on the parties.

     For these reasons, I would affirm the commission's March

26, 1999 award on all issues.




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