                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Bray and
          Senior Judge Overton *
Argued at Norfolk, Virginia


ASSOCIATED CABS, INC.
                                         MEMORANDUM OPINION** BY
v.        Record No. 1823-98-1           JUDGE RICHARD S. BRAY
                                            FEBRUARY 9, 1999
ISSIAH KING


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            Kevin W. Grierson (Richard B. Donaldson;
            Jones, Blechman, Woltz & Kelly, P.C., on
            brief), for appellant.

            No brief or argument for appellee.



     Issiah King (claimant) filed a claim for benefits with the

Workers' Compensation Commission (commission) alleging a

compensable accidental injury suffered while in the employ of

Associated Cabs, Inc. (employer).    The deputy commissioner

awarded temporary total disability at a rate of "$312.33 per week

. . . continuing until conditions justif[ied] a modification

thereof."    The full commission affirmed, amending the award to

"$264.83 per week," also until circumstances required

modification.    Employer appeals, complaining the commission

erroneously found that the accident caused claimant's injuries
     *
      Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
     **
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
and a related disability and incorrectly calculated the attendant

benefits.   Finding no error, we affirm the decision.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to

disposition of the appeal.   On review, we construe the evidence

in the light most favorable to the prevailing party below,

claimant in this instance.    See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
     The evidence disclosed that claimant regularly drove a taxi

for employer, earning a "salary" of $300 per week and an

additional weekly "commission" of approximately $100 for driving

employer's cabs at night.    While operating a taxi for employer

during a salaried period, claimant "got hit in the rear [by

another vehicle] and felt a snap . . . in the right side of [his]

neck," followed by pain in his neck and shoulder regions.

     Claimant was admitted to Bon Secours-DePaul Medical Center

immediately after the accident, and a CT scan revealed

abnormalities in the cervical spine which required surgical

intervention.   A report of the scan concluded that claimant's

condition
            may be do [sic] entirely to old degenerative
            joint disease either secondarily induced from
            trauma or perhaps infection. The possibility
            that the mild subluxation has occurred
            secondary to this trauma superimposed on an
            old injured weakened facet cannot be excluded
            particularly given the clinical new acute
            right upper extremity radiculopathy and
            recent severe neck trauma from an automobile
            accident.



                                - 2 -
     In correspondence dated December 11, 1996, Dr. Jonathan

Partington, claimant's treating neurosurgeon, reviewed claimant's

history and related findings, noting that he had
          been hospitalized at Bon Secours-DePaul
          Medical Center from 11/21/96 to the present.
           He was admitted following a motor vehicle
          accident which resulted in neck pain and
          right arm weakness and numbness. The workup
          revealed instability of C4-C5. He was taken
          to surgery on 11/26/96 for right C5
          foraminotomy, and multiple bone biopsies.

          [Claimant] has subsequently developed an
          apparent C4-C5 infection of the facet joint
          and possible diskitis and will likely need
          4-6 weeks of intravenous antimicrobial
          therapy. [Claimant] still has right upper
          extremity weakness and numbness, as well as
          persistent neck pain.

Dr. Partington opined "that [claimant] will be disabled and

unable to be gainfully employed for at least one year."

     Claimant testified that he had been asymptomatic prior to

the accident.   However, he has since been disabled by "severe

problems" and has not "been released [to work] by the doctor."

The record provided no medical evidence of claimant's condition

at the time of the hearing.

     Relying upon claimant's testimony, the results of the CT

scan, and Dr. Partington's report, the commission determined that

claimant "sustained an injury by accident to his neck arising out

of and in the course of his employment," which caused temporary

total disability.   In computing attendant compensation benefits,

the commission included claimant's "commission" earnings.

Employer challenges the sufficiency of the evidence to support



                               - 3 -
both the commission's causation findings and calculation of the

dependent award.

     "The commission's determination regarding causation is a

finding of fact and is binding on appeal when supported by

credible evidence."    Marcus v. Arlington County Bd. of

Supervisors, 15 Va. App. 544, 551, 425 S.E.2d 525, 530 (1993)

(citations omitted).   A finding of disability is similarly

binding on review by the Court.    See Georgia Pacific Corp. v.
Dancy, 17 Va. App. 128, 133-34, 435 S.E.2d 898, 901 (1993).

"'Medical evidence is not necessarily conclusive, but is subject

to the commission's consideration and weighing.'   The testimony

of a claimant may also be considered in determining causation,

especially where the medical testimony is inconclusive."       Dollar

General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152,

154 (1996) (citations omitted).

     Here, the record reflects that claimant was involved in an

accident which resulted in trauma to his neck and the onset of

pain and discomfort, necessitating immediate medical attention.

Subsequent diagnostic care identified a possible nexus between

the "severe neck trauma from an automobile accident" and the

abnormal studies of claimant's neck.    Claimant's attending

neurosurgeon reported on December 11, 1996 that his symptoms

"resulted" from the accident and opined that claimant would be

"disabled . . . for at least a year."   Claimant testified that he

had not "been released by the doctor yet [a]nd . . . still had



                                - 4 -
severe problems."   Such evidence provides sufficient support for

the commission's factual finding that the accident caused both

the disputed injury and disability.

     Employer next contends that the commission erroneously

computed claimant's average weekly wage, arguing that he worked

as an independent contractor, rather than an employee, when

driving on commission.   "Average weekly wage" includes "[t]he

earnings of the injured employee in the employment in which he

was working at the time of the injury."   Code § 65.2-101(1)(a).

However, earnings as an independent contractor generally cannot

be combined with income from employment to calculate average

weekly wage.   See Intermodal Servs., Inc. v. Smith, 234 Va. 596,

600, 364 S.E.2d 221, 223 (1988).   Determination by the commission

of average weekly wage constitutes a factual finding.    See

Chesapeake Bay Seafood House v. Clements, 14 Va. App. 143, 146,

415 S.E.2d 864, 866 (1992) (citations omitted).

     "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."   Intermodal Servs., 234 Va. at 600,

364 S.E.2d at 223 (citation omitted).
          Generally, "a person 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 performed." "The right of control
          is the determining factor in ascertaining"
          whether one is an employee or not. This
          right of control includes "the power to
          specify the result to be attained [and] the
          power to control 'the means and methods by
          which the result is to be accomplished.'" A



                               - 5 -
          person is an employee if the person for whom
          he or she is working "has the power to direct
          the means and methods by which [he or she]
          does the work."


Metropolitan Cleaning Corp., Inc. v. Crawley, 14 Va. App. 261,

264-65, 416 S.E.2d 35, 37-38 (1992) (en banc) (citation omitted)

(alterations in original).

     On the instant record, the commission correctly found "that

the claimant [on commission] was subject to the control of

[employer] both as to the result achieved, i.e. transporting

passengers from one location to another, and the means and

methods of transporting them, i.e. using [employer's] cab, in the
                                               1
same manner that he used it when on salary."       Although claimant

could "pick" his hours of commission work, he was required to

provide his services at the direction of employer, as an employee

at will, albeit on different terms of payment.      Thus, credible

evidence supports the commission's inclusion of claimant's net

earnings on commission in his average weekly wage before

computing the related benefit.

     Accordingly, we affirm the decision of the commission.
                                                           Affirmed.




     1
      Moreover, the evidence does not establish that claimant "is
excluded from taxation by the Federal Unemployment Tax Act," a
circumstance which removes "[a]ny taxicab . . . driver from the
statutory definition of "[e]mployee." Code § 65.2-101.



                                 - 6 -
