                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Felton
Argued at Richmond, Virginia


FRANK AUSTIN DARBY
                                          MEMORANDUM OPINION* BY
v.   Record No. 2101-02-2               JUDGE WALTER S. FELTON, JR.
                                               JUNE 24, 2003
ALLEN W. HARVEY, T/A IVY HILL FARM,
 IVY HILL DEVELOPMENT COMPANY, INC., AND
 UNINSURED EMPLOYER'S FUND


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Robert L. Flax (Flax and Stout, on briefs),
          for appellant.

          Linda D. Frith (E. Albion Armfield; Frith,
          Anderson and Peake, P.C., on brief), for
          appellees Allen W. Harvey, t/a Ivy Hill
          Farm, and Ivy Hill Development Company, Inc.

          John J. Beall, Jr., Senior Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee Uninsured Employer's
          Fund.


     Frank Darby appeals a decision of the Workers' Compensation

Commission denying him benefits for an injury sustained to his

left leg while working at Allen Harvey's private residence.

Darby contends on appeal that the commission erred in

determining that (1) he was an independent contractor; (2) if he

was deemed an employee rather than an independent contractor, he

was an employee of Harvey and not Ivy Hill Development


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Corporation; and (3) Harvey was exempt as an employer from the

Workers' Compensation Act.      We affirm the commission's decision.

                           I.    BACKGROUND

            On appeal, "[d]ecisions of the commission as
            to questions of fact, if supported by
            credible evidence, are conclusive and
            binding on this Court." Manassas Ice & Fuel
            Co. v. Farrar, 13 Va. App. 227, 229, 409
            S.E.2d 824, 826 (1991) (citing Code
            § 65.1-98; McCaskey v. Patrick Henry Hosp.,
            225 Va. 413, 415, 304 S.E.2d 1, 2 (1983)).
            [Footnote omitted.] "The fact that contrary
            evidence may be found in the record is of no
            consequence if credible evidence supports
            the commission's finding." Id. (citing
            Russell Loungewear v. Gray, 2 Va. App. 90,
            95, 341 S.E.2d 824, 826 (1986)). We view
            the evidence in the light most favorable to
            the party prevailing below. Creedle Sales
            Co. v. Edmonds, 24 Va. App. 24, 26, 480
            S.E.2d 123, 124 (1997).

County of Henrico Police v. Medlin, 37 Va. App. 756, 759-60, 561

S.E.2d 60, 61 (2002).

                          A.    THE INJURIES

     On December 17, 1998, Frank Darby broke the fibula and

tibia in his left leg when it was caught between the wheel and

the fender of the tractor he was using to scrape Allen Harvey's

driveway.   Harvey owned the tractor.     Darby underwent several

surgical procedures as a result of his injury.     His medical

records reflect that his work related and non-work related

injuries rendered him disabled to work.




                                  - 2 -
            B.   EVIDENCE REGARDING EMPLOYMENT STATUS

     In 1995 or early 1996, Harvey engaged Darby to perform

maintenance and other odd jobs at his home in Forest, Virginia,

as well as at his Smith Mountain Lake home. 1   Occasionally Darby

performed similar work at Harvey's real estate office, Ivy Hill

Realty Company, Inc.

     According to Darby, the business relationship began when he

approached Harvey about obtaining firewood from fallen trees

located on Harvey's property.    Darby gave Harvey a "Darby

Brother's Cleaning Service" business card that referred to lawn

care and piecework.    Harvey subsequently asked Darby if he could

help him if he was needed.   Darby began upkeep of Harvey's

residences and occasionally the property of the real estate

office. 2

     According to Darby, "whenever [Harvey] wanted me to do

something, he would always meet me out when I first go to work

in the mornings, he'd meet me out there and tell me what he

wanted me to do first . . . ."    Darby's duties included raking

leaves, mowing, cleaning gullies and ditches, and occasionally

assisting the maintenance crew at the golf course owned by




     1
       Approximately eighty-five to ninety percent of the work
performed by Darby was at Harvey's residence.
     2
       In 1997, Harvey intermittently used another landscaping
company to assist in the maintenance of the properties.


                                 - 3 -
Harvey. 3   Occasionally he was asked to clean inside the office of

Ivy Realty Company.    Darby indicated that he used Harvey's lawn

care tools, mowers, truck and tractors.    However, Darby also

supplied and used his own tools such as power saws, a bush hog,

hoes, rakes, shovels, and his truck.

     Although Darby was informed of the tasks that needed to be

completed, he acknowledged that it was left up to him to decide

how the tasks would be accomplished.     Harvey did not supervise

Darby's work.    However, on occasion he would work with Darby.

At the deputy commissioner's hearing, Darby testified that he

set his own schedule, hours, and kept his own time records.

Furthermore, if he had something else to do, he might decide not

to work that day.    Darby also did work for others.   He provided

lawn care for others and cleaning services for multiple

businesses.    In addition, up until 1997, Darby was employed by

Richmond Security Corporation.

     Ivy Hill Development Corporation was a "shell corporation."

According to Harvey, the corporation never took any tax

deductions.    It never conducted any trade or business, never had

an office, never had a payroll, never had income or losses

necessitating the payment of taxes, and had four unpaid board

members.    The only source of funds for the Ivy Hill Development

Corporation was from Harvey's personal assets.      He used the


     3
         Harvey sold the golf course in May 1996.


                                 - 4 -
funds in the corporation's checking account to pay personal

expenses.

     One of those personal expenses included payment to Darby

for services rendered.      Darby was paid seven dollars per hour

and paid by check from the account of Ivy Hill Development

Corporation.   The check stubs contained Harvey's handwritten

notations reflecting that payment was for "labor, fuel, and

equipment" and occasionally for "labor, equipment, and

supplies."

     On his 1995 and 1996 federal income tax forms, Darby

indicated that he was self-employed.      In 1998, Darby received

from Harvey a federal 1099 form (non-employee compensation).

                       C.    PROCEDURAL HISTORY

     At two hearings, on June 14, 2000 and May 9, 2001, Deputy

Commissioner Herring heard evidence in this case.     On November

26, 2001, he issued an opinion that found Darby was an employee

of Ivy Hill Development Corporation and not an independent

contractor.    Furthermore, Deputy Commissioner Herring found that

Darby had suffered a compensable injury and was disabled.     Darby

was awarded workers' compensation benefits.

     Harvey and the Uninsured Employer's Fund appealed the

decision to the full commission.     On July 19, 2002, the

commission reversed the deputy commissioner's findings.      It

determined that Darby was an independent contractor and not an

employee.    Additionally, the commission found that if Darby were

                                  - 5 -
considered an employee, he was an employee of Harvey and not Ivy

Hill Development Corporation.      Harvey did not possess the

requisite number of employees, three, to fall within the purview

of the Workers' Compensation Act.          See Code § 65.2-101.

Therefore, Darby was not entitled to an award of benefits.

Darby appeals the commission's decision.

                             II.    ANALYSIS

     We first consider whether the commission erred in

determining that Darby was an independent contractor.         What

constitutes an employee or independent contractor is a question

of law, but whether the facts bring a person within the law's

designation is usually a question of fact.          See Stonega Coke &

Coal Co. v. Sutherland, 136 Va. 489, 494, 118 S.E. 133, 134

(1923).   On appeal, legal questions are subject to de novo

review.   However, we must give deference to any factual finding

made by the commission.   See Code § 65.2-706(A); Stenrich Group

v. Jemmott, 251 Va. 186, 192, 467 S.E.2d 795, 798 (1996);

Sinclair v. Shelter Const. Corp., 23 Va. App. 154, 156-57, 474

S.E.2d 856, 857-58 (1996).

           Whether the existing status is that of an
           employee or that of an independent
           contractor is governed, not by any express
           provision of the workmen's compensation law,
           but by the common-law. Crowder v. Haymaker,
           164 Va. 77, 79, 178 S.E. 803. No hard and
           fast rule can be laid down for ascertaining
           whether the status is one or the other. It
           must be determined from the facts of the
           particular case in the light of well settled
           principles.

                                   - 6 -
Hann v. Times-Dispatch Publ'g. Co., 166 Va. 102, 105-06, 184

S.E. 183, 184 (1936).   "Independent contractors or

subcontractors are 'not countable as employees within the

meaning of the Workmen's Compensation Act . . . .     [T]he Act

applies to the contractual relationship of master and servant.'"

Richmond Newspapers, Inc. v. Gill, 224 Va. 92, 97, 294 S.E.2d

840, 843 (1982) (quoting Stover v. Ratliff, 221 Va. 509, 511,

272 S.E.2d 40, 42 (1980)).

          As a general rule, 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 power of
          control is the most significant indicium of
          the employment relationship; other factors
          merely help to elucidate the manner and
          degree of control.

          But an employer-employee relationship exists
          only if the control reserved includes the
          power to control, not only the result to be
          accomplished, but also the means and methods
          by which the result is to be accomplished.

          "If under the contract the party for whom
          the work is being done may prescribe not
          only what the result shall be, but also
          direct the means and methods by which the
          other shall do the work, the former is an
          employer, and the latter an employee. But
          if the former may specify the result only,
          and the latter may adopt such means and
          methods as he chooses to accomplish that
          result, then the latter is not an employee,
          but an independent contractor. So the
          master test is the right to control the
          work . . . ."

Gill, 224 Va. at 98, 294 S.E.2d at 843 (quoting Craig v. Doyle,

179 Va. 526, 531, 19 S.E.2d 675, 677 (1942)).

                               - 7 -
        In the instant case, there is credible evidence supporting

the commission's finding that Darby was an independent

contractor and not an employee.    Darby began performing

maintenance and other odd jobs for Harvey in 1995 or early 1996.

When Darby initially approached Harvey about obtaining work, he

provided a "Darby Brother's Cleaning Service" business card that

referred to lawn care and piecework.     For taxable years 1995 and

1996, Darby indicated that he was self-employed.

        At the hearing before Deputy Commssioner Herring, Darby

testified that Harvey gave him general instructions about

performing yard maintenance and other odd jobs.    However, he

acknowledged that it was up to him to decide how the tasks would

be accomplished.    Harvey did not supervise Darby's work.

According to Darby, Harvey would inform him of what needed to be

done and might not see him for extended periods of time

thereafter.

        Darby further testified that he set his own schedule,

hours, and kept his own time records.    He was permitted to do

work for others if he so desired, and he advised Harvey whether

or not he would be working.    When performing his work, he not

only used tools provided by Harvey, but he also used many of his

own tools to complete his tasks.

        Based on these facts, it is apparent that Harvey specified

the result only and Darby maintained the right to control the

work.     See Gill, 224 Va. at 98, 294 S.E.2d at 843.   There was

                                 - 8 -
credible evidence to support the commission's finding that Darby

was an independent contractor, not an employee.   Since Darby was

an independent contractor, and therefore not within the scope of

the Workers' Compensation Act, we need not consider the other

issues on appeal.   The decision of the commission is affirmed.

                                                        Affirmed.




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