                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


WILLIAM L. CASPER
                                                MEMORANDUM OPINION *
v.   Record No. 3012-97-2                           PER CURIAM
                                                   MAY 12, 1998
COMMERCIAL INTERIOR CONTRACTING, INC.
AND
NATIONWIDE MUTUAL INSURANCE COMPANY


                                     FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
            (William L. Casper, pro se, on brief).

            (Benjamin J. Trichilo; Trichilo, Bancroft,
            McGavin, Horvath & Judkins, on brief), for
            appellees.



     William L. Casper contends that the Workers' Compensation

Commission erred in finding that he was an independent

contractor.   Casper argues that Commercial Interior Contracting,

Inc. was his employer at the time of his June 28, 1995 industrial

accident.   Upon reviewing the record and the briefs of the

parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision.       See

Rule 5A:27.

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.    See R.G. Moore Bldg. Corp. v.

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

viewed, the evidence proved that Casper was a drywall finisher

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
with twenty-eight years of experience.    Casper testified that

Commercial hired him to perform "piece work," assigned him a

particular task, and did not supervise his work.    Casper provided

his own tools and stilts.    Commercial provided ladders and

scaffolding.    On June 28, 1995, after completing drywall

finishing work, Casper agreed to perform extra work involving

firetaping on a wall at a height in excess of ten feet.      As

Casper was standing on a stepladder positioned on a scaffold, he

fell and injured his left hip and left wrist.
        Casper testified that Commercial paid him a flat fee for all

drywall finishing work he performed at a ten foot or lower level.

He also testified that Commercial agreed to pay him by the hour

for the firetaping he agreed to perform on June 28, 1995.      Casper

admitted that he filed federal income tax forms as a

self-employed drywall finisher for calendar years 1993 through

1995.

        Gary LeBlanc and Stephen Creeden, the co-owners of

Commercial, testified that Casper was hired as a subcontractor on

three small drywall projects in May and June 1995.    Although they

directed Casper to the location of the work, they did not

supervise Casper's work in any manner.    Commercial paid Casper a

flat fee for each job he completed and paid Casper a total of

$1,200 for his work without deduction for taxes or Social

Security.    Commercial issued Casper a federal income tax Form

1099 for all monies paid to him during the calendar year 1995.




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LeBlanc and Creeden testified that on June 28, 1995, Commercial

agreed to pay Casper $450 for drywall finishing work and $50 for

the firetaping work Casper agreed to perform.

     "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."    Baker v. Nussman, 152 Va. 293, 298,

147 S.E. 246, 247 (1929).   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 performed.      The power of

control is the most significant indicium of the employment

relationship."   Richmond Newspapers, Inc. v. Gill, 224 Va. 92,

98, 294 S.E.2d 840, 843 (1982).       See also Stover v. Ratliff, 221

Va. 509, 512, 272 S.E.2d 40, 42 (1980).      The employer/employee

relationship exists only if the power to control includes the

result to be accomplished and the means and methods by which the

result is to be accomplished.     See Behrensen v. Whitaker, 10 Va.

App. 364, 367, 392 S.E.2d 508, 509-10 (1990).      Unless we can say

as a matter of law that Casper's evidence sustained his burden of

proving that he worked for employer as an employee rather than an

independent contractor, the commission's findings are binding and

conclusive upon us.   See Tomko v. Michael's Plastering Co., 210

Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     In holding that an employee/employer relationship did not

exist between Casper and Commercial, the commission found that




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Casper, an experienced drywall finisher, retained complete

control over the manner in which he performed his work.   In

addition, the commission found the testimony of LeBlanc and

Creeden more persuasive than Casper's testimony regarding the

manner in which Commercial paid Casper for the firetaping work.

     Based upon this record, the commission could reasonably

conclude that Commercial did not exercise the requisite control

over Casper to make him its employee.   In addition, in its role

as fact finder, the commission was entitled to accept the

testimony of LeBlanc and Creeden and to reject Casper's testimony

regarding the manner in which Commercial agreed to pay Casper for

the June 28, 1995 firetaping work.   It is well settled that

credibility determinations are within the fact finder's exclusive

purview.   See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App.

374, 381, 363 S.E.2d 433, 437 (1987).   The record amply supports

the commission's finding that Casper was not an employee under

the Workers' Compensation Act.

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




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