                     COURT OF APPEALS OF VIRGINIA


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


JOSE A. JUAREZ
                                           MEMORANDUM OPINION* BY
v.   Record No. 2289-98-4                  JUDGE DONALD W. LEMONS
                                                JUNE 22, 1999
C. WOOLFREY CONSTRUCTION,
 GRANITE STATE INSURANCE COMPANY,
 ALFONSO E. ORTIZ AND
 UNINSURED EMPLOYER’S FUND


           FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

             Diane C. H. McNamara for appellant.

             Susan A. Evans (Siciliano, Ellis, Dyer &
             Boccarosse, on brief) for appellees C.
             Woolfrey Construction and Granite State
             Insurance Company.

             Donald M. Haddock, Jr.; Jennifer Lee Parrish;
             Roberts, Ashby & Parrish, on brief), for
             appellee Alfonso Ortiz.

             Christopher D. Eib, Assistant Attorney
             General (Mark L. Earley, Attorney General;
             Richard L. Walton, Jr., Senior Assistant
             Attorney General, on brief), for appellee
             Uninsured Employer’s Fund.

     Jose A. Juarez appeals the decision of the Workers’

Compensation Commission denying him benefits.       On appeal, Juarez

contends that the commission erred in allowing a deputy

commissioner to serve on the full commission when it reviewed


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
the case.   Juarez also argues that the commission erred in

finding that Juarez was an independent contractor at the time of

the accident.   We find that that the commission committed no

error, and we affirm its decision.

                          I.   BACKGROUND

     On August 28, 1996, Jose Juarez fell from the roof of a

building and injured his left ankle, left leg and spine.     Juarez

testified that at the time of his injury, he was working on the

roof with Alfonso Ortiz and a crew of men.

     Juarez began working with Ortiz in 1995.   Both Juarez and

Ortiz were employed with Bean & Mallow (“B & M”), a Northern

Virginia roofing contractor.   Ortiz was the supervisor or

foreman of the roofing crew, and Juarez worked under Ortiz as a

member of the crew.   Rodolpho and Geraldo Silva and Martin

Rodriguez were all also members of Ortiz’s crew.   Ortiz is

fluent in both Spanish and English and helped all of the men to

complete their applications for employment with B & M.   Except

for some basic phrases, Juarez does not speak English.

     In 1996, Ortiz asked Juarez to work on roofing jobs for C.

Woolfrey Construction.   C. Woolfrey Construction (“Woolfrey

Construction”) was the roofing contractor for Atlantic Builders,

and supplied all of the materials and labor on the job site for

that builder.   The jobs for Woolfrey did not involve B & M, and

were completely unrelated to both Ortiz’s and Juarez’s

employment with B & M.   Ortiz testified that he allowed Juarez

                               - 2 -
to select the other individuals to work on the crew with him on

the Woolfrey Construction job sites.     The other members of the

crew included Rodolpho and Geraldo Silva and Rodriguez.

        Juarez testified that he began working on the “Woolfrey”

jobs in 1996.    Ortiz would inform Juarez where the job was

located and provide directions to the site.    The crew never knew

if the job was for B & M or Woolfrey Construction until they

arrived and noticed the company signs.    When the crew worked for

B & M, they would receive a company check; whereas, when they

worked on a job for Woolfrey Construction, the men received

either a personal check made out to one crew member on a

rotational basis, which they would divide among themselves, or

cash.    Ortiz always delivered their payment for the Woolfrey

Construction jobs.

        When the crew worked at the Woolfrey Construction job

sites, the crew supplied its own tools.    The crew had purchased

an air compressor from Ortiz, and the crew used two ladders, one

belonged to B & M and the other belonged to Ortiz.    The crew

traveled to the job sites in a truck the crew members had

purchased from Ortiz.    Juarez kept the truck at his home, and

used it for personal errands.

        Juarez stated that “there was no boss” of the crew;

rather, all of the crew members were “friends.”    On the Woolfrey

Construction jobs, the crew set its own hours and determined

when they would go to lunch or take breaks.    Juarez testified

                                 - 3 -
that they did not keep track of the hours that the crew spent at

each house.

     On August 28, 1996, the day of the accident, Juarez was

working with Rodolpho and Geraldo Silva and Rodriguez.     Clayton

Woolfrey, the owner of Woolfrey Construction at the time of the

accident, was called immediately and he went to the hospital to

check on Juarez.   Woolfrey testified that he knew that the

accident “definitely occurred on one of our jobs.”    When he

first arrived at the hospital, Woolfrey told hospital personnel

that he was “hiring [Juarez] as of that day.”   Woolfrey

testified that he only told the hospital that because he was

afraid that, due to the language barrier, Juarez might not be

receiving proper medical attention.

     After his accident, Juarez filed an application for

benefits under the Workers’ Compensation Act, naming Woolfrey

Construction as his employer.   Woolfrey Construction’s insurance

carrier initially accepted Juarez’s claim and paid $8,928 in

benefits.   However, the carrier then changed its position, and

denied further liability on the ground that Juarez was an

independent contractor, not an employee of Woolfrey

Construction.

     On October 22, 1997, an evidentiary hearing was held on

Juarez’s claim.    On December 5, 1997, Deputy Commissioner

Herring issued an opinion finding that Juarez “was not an

employee of either . . . Ortiz or . . . Woolfrey

                                - 4 -
[Construction]. . . .”   Deputy Commissioner Herring determined

that Juarez was an independent contractor and that he was not

entitled to recovery under the Workers’ Compensation Act.

     Juarez sought review of the deputy commissioner’s opinion.

On September 10, 1998, the full commission affirmed the deputy

commissioner’s ruling.   Juarez appeals the ruling of the full

commission.

                         II.   REVIEW PROCESS

     Juarez argues on appeal that the full commission did not

comply with the review process prescribed by the Workers’

Compensation Act and that the opinion issued by the full

commission is void.

     The Workers’ Compensation Act mandates that the full

commission be comprised of three members.       Of the first two

members,

           [n]ot more than one . . . shall be a person
           who on account of his previous vocation,
           employment or affiliation, shall be
           classified as a representative of employers,
           and not more than one such appointee shall
           be a person who on account of his previous
           vocation, employment or affiliation, shall
           be classed as a representative of employees.

Code § 65.2-200(D).   The third, or “neutral,” member,

           shall be chosen by the joint vote of the two
           houses of the General Assembly during the
           month of January of each regular session of
           the General Assembly convened in any
           even-numbered year, and who shall serve for




                                 - 5 -
          terms of six years from the first date of
          February next succeeding election.

Code § 65.2-200(B).

     On the date Deputy Commissioner Herring’s opinion was

reviewed by the full commission, the commission was comprised of

Commissioner Lawrence Tarr, the “employer representative,”

Commissioner William Dudley, the “neutral member,” and

Chairperson Virginia Diamond, the “employee representative.”

However, Chairperson Diamond did not participate in the full

commission’s review of Juarez’s case.   Deputy P. Randolph Roach,

a Deputy Commissioner employed by the Workers’ Compensation

Commission, participated in the review of Juarez’s case and the

rendering of the opinion of the full commission.

     Citing Code § 65.2-704(B), Juarez maintains “[o]nly under

certain prescribed circumstances may a deputy be substituted in

place of a full Commissioner” and that none of the circumstances

existed in his case.   Code § 65.2-704(B) states

          [a]ny member of the Commission who hears the
          parties at issue and makes an award . . .
          shall not participate in a rehearing and
          review of such award provided under [Code]
          § 65.2-705. When a member is absent or
          prohibited by the provisions of this
          subsection from sitting with the full
          Commission to hear a review, the Chairman
          shall appoint one of the deputies to sit
          with the other Commission members.

     On appeal, Juarez argues that in his case “none of the

members of the Commission were ‘absent or prohibited’ from

hearing the case on review.”   In addition, Juarez contends that

                               - 6 -
“the first hearing was not before the full Commission, so the

exception set forth in Code § 65.2-705 is not triggered.”

Finally, Juarez argues that there is “no indication in the

record” that Roach was appointed by Chairperson Diamond in her

absence as required by Code § 65.2-704(B) and that he did not

have notice of the substitution, or the opportunity to object.

     Juarez never raised the issue of Deputy Commissioner

Roach’s participation in the review of his case before the full

commission.   Although the commission did not allow oral argument

in this case and Juarez did not know the composition of the full

commission until the review opinion was issued, Juarez had the

opportunity to object after the opinion was rendered and before

it became final thirty days later.     Juarez did not make a motion

to reconsider or to vacate the opinion during the thirty-day

period that the decision remained within the jurisdiction of the

commission.   We will not consider an issue not brought before

the commission for the first time on appeal.     See Green v.

Warwick Plumbing & Heating Corp., 5 Va. App. 409, 412-13, 364

S.E.2d 4, 6 (1988).

               III.   EMPLOYEE/EMPLOYER RELATIONSHIP

     Juarez argues that the Workers’ Compensation Commission

erred in its finding that he was not an employee of Woolfrey

Construction at the time of his injury.    Juarez contends that

Woolfrey Construction exercised a degree of control over his

work that created a relationship of employee/employer.    In

                               - 7 -
addition, Juarez argues that if we do not find that he was an

employee of Woolfrey Construction, we must find that Alfonso

Ortiz was his employer.   Pursuant to the parties’ stipulation at

the hearing, if the commission found that Juarez was an employee

of Ortiz, Woolfrey Construction would be his statutory employer.

     Whether a person is an independent contractor or an

employee is governed by traditional common law principles.     See

Hamilton Trucking v. Springer, 10 Va. App. 710, 396 S.E.2d 379

(1990).   “The power or right of control is the most significant

factor in determining the character of the relationship, and the

most significant inquiry is whether the power or right to

control the means and methods by which the result is to be

accomplished has been reserved.”   County of Spotsylvania v.

Walker, 25 Va. App. 224, 230, 487 S.E.2d 274, 276 (1997).

     In its opinion dated September 10, 1998, the full

commission adopted Deputy Commissioner Herring’s findings of

fact in his December 5, 1997 opinion.   Deputy Commissioner

Herring’s findings included the following:

                Juarez has not met his burden of proof
           as to either purported employer. We believe
           the evidence to be conclusive that although
           Ortiz arranged work for Juarez and his
           fellow crew members and occasionally even
           directed them to the job sites, he did not
           supervise or otherwise control their work.
           Indeed, the evidence is uncontradicted that
           if one of more of the work crew members was
           not available or could not work, Ortiz would
           attempt to find a replacement.



                               - 8 -
     We also find, on the evidence
presented, that Juarez and his fellow
workers were free to accept or reject jobs
as they pleased. The fact that, as Juarez
testified, no work was ever refused does not
mean that either he or his fellow workers
did not have the right to do so.

     For much the same reason, we also find
that Woolfrey did not “control” the actions
of Juarez and his fellow workers. As we
understood the evidence, Woolfrey specified
what type of job needed to be done,
depending on the roofing required, and
occasionally completed work when Juarez and
the other men did not finish. We held that
specifying the type of work to be done does
not equate with supervising that work, and
there is no evidence before us that he
actually did so.

 *      *      *      *      *      *      *

     The evidence was abundant . . . that,
in the overwhelming number of cases, Juarez
and his friends worked without intervention
either from Ortiz or from Woolfrey.
Although not dispositive, it is also
undisputed that Juarez and his friends were
paid by the job, based upon the number of
“squares” of roofing installed.

     Simply stated, all the witnesses on
this point agreed that Juarez and his
companions were highly-skilled, motivated
workers who needed no supervision in
performing the tasks assigned. Their sole
requirement was to complete the assigned job
so that the home would pass inspection.
Only on those occasions when they ran out of
materials, which were furnished by Woolfrey,
or did not have time to complete the task,
did Woolfrey personally become involved.

     We also find that the incident in the
hospital whereby Woolfrey offered to
“employ” Juarez has no bearing on our
decision. We see this as nothing more than


                    - 9 -
           an attempt by Woolfrey to ensure that Juarez
           got appropriate medical care.

     The full commission stated additional evidence in its

opinion:

           Once Ortiz obtained a [Woolfrey] job, he
           would show the crew the location and the
           crew would perform the roofing job, setting
           their own hours, and using their own tools
           and truck. When the job was completed,
           Ortiz would be paid in a lump sum which he
           would give to the crew, and they would
           determine how it would be divided among
           them. Because Ortiz spoke English, and the
           crew primarily spoke Spanish, Ortiz acted as
           a liaison between the crew and Woolfrey, if
           a problem arose. No taxes, social security,
           or health insurance premiums were deducted
           from the money received for performing work
           at the Woolfrey sites. Ortiz testified that
           he did not consider the claimant or the
           other crew members to be his employees, and
           as a result, he did not carry workers’
           compensation insurance coverage. Woolfrey
           testified that he only visited the locations
           to insure the job was completed. Often,
           Ortiz did not discover that a job was
           completed until he learned of it from
           Woolfrey or one of the crew members.
           Woolfrey provided materials on the job site,
           but did not speak Spanish and therefore, did
           not direct the others as a supervisor.
           After the injury, Woolfrey told hospital
           personnel that the claimant was his employee
           so that the claimant would be covered and
           would not have to have his leg amputated.

     The full commission concluded

           [t]he evidence established that Ortiz
           essentially brokered the job between the
           crew and C. Woolfrey Construction. Once the
           job was established, and the crew was told
           what needed to be done, the crew members set
           their own schedule, used their own tools,
           and decided how they would divide the pay.
           We find that neither Ortiz nor Woolfrey

                              - 10 -
            exercised that degree of control over the
            crew that rendered them employees.

       In reviewing the decision of the Workers’ Compensation

Commission, “we review the evidence in the light most favorable

to the party prevailing below.”    Uninsured Employer’s Fund v.

Clark, 26 Va. App. 277, 280, 494 S.E.2d 474, 475 (1998).    “The

commission’s findings of fact will be upheld on appeal if they

are supported by credible evidence.”    Id. at 280, 494 S.E.2d at

475.   In reviewing the evidence in the light most favorable to

Woolfrey Construction and Ortiz, we find that credible evidence

exists to support that Juarez was an independent contractor and

was ineligible for benefits under the Workers’ Compensation Act.

       We also hold that credible evidence existed to support the

commission’s finding that Juarez, an independent contractor, was

not entitled to recover from Woolfrey Construction as a

statutory employer under Code § 65.2-302.   A decision of the

Workers’ Compensation Commission which considers whether an

entity is a statutory employer for purposes of recovery under

the workers’ compensation statute must be affirmed where there

is credible evidence to support the findings of the commission.

See Bogese Builder v. Robertson, 17 Va. App. 700, 440 S.E.2d 622

(1994).   Citing Reynolds v. Yellow Cab Co., 75 O.W.C. 76, 78-79

(1996), the commission stated “an independent contractor is not

an employee or statutory employee merely because he performs

work in the trade, business, occupation or profession of the


                               - 11 -
employer and which is usually performed by employees, if the

employer retains no right to control the manner in which the

work is performed, as is the case here.”     We find that credible

evidence existed in the record to support the commission’s

finding that Woolfrey was not Juarez’s statutory employer, and

we uphold the denial of benefits under Code § 65.2-302.

                          IV.   CONCLUSION

     We find that the full commission complied with the review

process prescribed by the Workers’ Compensation Act.    In

addition, our review of the record finds credible evidence to

support the decision of the commission to deny benefits to

Juarez.   The decision of the commission is affirmed.

                                                             Affirmed.




                                - 12 -
