                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Elder, Bumgardner and Lemons


STEVEN B. McCLELLAN
                                                 MEMORANDUM OPINION *
v.   Record No. 1174-98-3                            PER CURIAM
                                                  OCTOBER 20, 1998
H. L. YOH COMPANY AND INSURANCE COMPANY
 OF THE STATE OF PENNSYLVANIA


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (A. Thomas Lane, Jr., on brief), for
           appellant.
           (P. Dawn Bishop; Sands, Anderson, Marks &
           Miller, on brief), for appellees.




     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     Steven B. McClellan ("claimant") contends that the Workers'

Compensation Commission ("commission") erred in finding that he

was the loaned employee of Life Sciences International ("Life

Sciences") at the time of his September 13, 1996 industrial

injury.   Pursuant to Rule 5A:21(b), H.L. Yoh and its insurer

(hereinafter referred to as "Yoh") raise the additional question

of whether the commission erred in finding that claimant provided

adequate notice of his accident to Yoh as required by Code

§ 65.2-600.     Upon reviewing the record and the briefs of the

parties, we find that claimant's appeal is without merit.

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

Rule 5A:27. 1

     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).

Unless we can say as a matter of law that claimant's evidence was

sufficient to sustain his burden of proof, the commission's

findings of fact 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 Ideal Steam Laundry v. Williams, 153 Va. 176, 149 S.E.

479 (1929), the Supreme Court recognized that
          "[a] servant may be transferred from his
          service for one master--who may have made the
     1
      We decline to address the notice issue raised by Yoh,
because our affirmance of the commission's decision on the
"loaned employee" issue is dispositive of this case.



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             express contract for employment of the
             servant and may pay the latter his wages and
             be his general master--to the service of
             another person other than his general master;
             in which case . . . (2) the special servant
             must look to the special master for his
             indemnity, if he is injured, while the
             stipulated work is in progress, by dangerous
             conditions resulting from the special
             master's failure to fulfill one of those
             duties which the law imposes upon the masters
             for the benefit and protection of their
             servants."


Id. at 180-81, 149 S.E. at 481 (citation omitted).
     "For an employee to be a loaned-employee, the borrowing

employer must (1) acquire the right to control and direct the

employee, and (2) the employee must indicate, whether expressly

or impliedly, consent to becoming the employee of the borrowing

employer."     Marshall Erdman & Associates v. Loehr, 24 Va. App.

670, 677, 485 S.E.2d 145, 148 (1997).

     In refusing to impose liability upon Yoh for claimant's

September 13, 1996 industrial injury, the commission made the

following factual findings:
          H.L. Yoh selected and hired the claimant,
          paid him, deducted taxes and social security,
          and had the power to dismiss him under
          certain circumstances. H.L. Yoh controlled
          when, and where to send the claimant to work
          as an engineer and for whom claimant would be
          working. Insofar as the day-to-day work was
          concerned, however, H.L. Yoh had no control
          over how the claimant did his work, what
          particular assignments he was to do, what
          shift he would be working, his times of
          arrival and departure, what protective
          equipment claimant was to wear or any of the
          host of particular matters which arose on the
          jobsite. H.L. Yoh had no trailer on the site
          and maintained no presence at the site. How
          the claimant performed his work on the site


                                 - 2 -
           was entirely directed by his supervisor Tom
           Edwards of Life Sciences.


     The commission's factual findings are amply supported by the

record.   The evidence proved that although Yoh hired and paid

claimant, Life Sciences exercised complete control over the

manner in which claimant performed his day-to-day work.    In

addition, the evidence established that claimant impliedly or

expressly consented to his employment with Life Sciences and

promptly reported his accident to Life Sciences.
     Based upon this record, we cannot find that claimant's

evidence proved as a matter of law that Yoh was his "employer" at

the time of his accident for purposes of awarding workers'

compensation benefits.

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

                                                          Affirmed.




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