                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Senior Judge Overton


STEPHEN M. MASSARO
                                             MEMORANDUM OPINION*
v.   Record No. 3062-02-1                         PER CURIAM
                                                MARCH 25, 2003
BLUE CHIP PAINTING AND
 PRINCETON INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (David A. Buzard; Bennett and Zydron, P.C.,
             on brief), for appellant.

             (Allen Lotz; Huff, Poole & Mahoney, P.C., on
             brief), for appellees.


     Stephen M. Massaro contends the Workers' Compensation

Commission erred in finding that he was an independent

contractor rather than an employee of Blue Chip Painting.       Upon

reviewing the record and the parties' briefs, we conclude that

this appeal is without merit.     Accordingly, we summarily affirm

the commission's decision.     Rule 5A:27.

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

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

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

denying Massaro's application, the deputy commissioner found as

follows:


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
               From all the evidence, we conclude that
          [Massaro] has not borne his burden to prove
          that he was an employee. The evidence is
          almost in [equipoise] on this point, with
          certain facts tending to show an
          employer/employee relationship and other
          facts tending to indicate a
          contractor/independent contractor
          relationship. We find that [Massaro] was to
          be paid "by the job", not by the day. We
          also find that [Massaro] held himself out to
          [Joseph] Knehr[, the owner of Blue Chip,] as
          the proprietor of S.M.S.A. Painting
          Contractors. While Knehr retained the right
          to dictate the result to be achieved, it is
          not clear to us that he retained the right
          to control the means and methods of the
          work, despite Knehr having instructed
          [Massaro] to prime bare wood before applying
          paint. We think that the parties intended
          their relationship to be one of
          contractor/subcontractor rather than
          employer/employee.

     Affirming the deputy commissioner's decision, the

commission found as follows:

          [W]e find that [Massaro] has described an
          employment relationship. [He] testified
          that . . . Knehr exerted a significant
          degree of control over him by dictating the
          hours he was to work and the materials he
          was to use. [Massaro] also denied that he
          was allowed to hire an assistant to help him
          with the job. All of these factors, if
          true, support the existence of an
          employee/employer relationship.

               However, . . . Knehr's description of
          his relationship with [Massaro] differs
          greatly from that described by [Massaro].
          . . . Knehr testified that he contracted
          with [Massaro] to complete one particular
          project for a set price, regardless of how
          long it took [Massaro] to paint the house.
          He also testified that he had never worked
          with [Massaro] before this particular job.
          In addition, . . . Knehr denied that he
                               - 2 -
          "controlled" [Massaro's] day-to-day
          activities by dictating the hours to be
          worked by [Massaro], by requiring [Massaro]
          to use his equipment, or by prohibiting
          [Massaro] from using an assistant. We find
          that the combination of these factors, if
          true, support the conclusion that [Massaro]
          was an independent contractor of Blue Chip
          Painting rather than an employee.

               The deputy commissioner implicitly
          found . . . Knehr's testimony to be more
          credible than that of [Massaro], and we
          accept his conclusion in this regard.

     Massaro contends the commission erred, as a matter of law,

by ruling that the deputy commissioner "implicitly found"

Knehr's testimony to be more credible than Massaro's testimony.

He argues the deputy commissioner made no explicit findings

concerning the credibility of the witnesses.    We disagree.

     The commission found that Massaro's testimony, if accepted,

supported his contention that he was an employee.    On the other

hand, Knehr's testimony, if accepted, supported his contention

that Massaro was an independent contractor.    Although the deputy

commissioner found the evidence was "almost" in equipoise, he

ruled in favor of Blue Chip.   The only witnesses who testified

at the hearing were Massaro and Knehr.   In other words, the

deputy commissioner found, upon his review of the disputed

evidence, that he believed Knehr's testimony.   Thus, credible

evidence supports the commission's conclusion that the deputy

commissioner implicitly found Knehr's testimony to be more

credible than Massaro's testimony.

                               - 3 -
        Moreover, the commission weighed the evidence, which

presented substantial conflicts, and found in favor of Blue

Chip.    "We are bound by that factual finding."   Grove v. Allied

Signal, Inc., 15 Va. App. 17, 19, 421 S.E.2d 32, 33 (1992).       The

commission's resolution of the factual discrepancies between the

testimony of Massaro and Knehr is not reviewable by this Court.

"Matters of weight and preponderance of the evidence, and the

resolution of conflicting inferences fairly deducible from the

evidence, are within the prerogative of the commission and are

conclusive and binding on the Court of Appeals."     Kim v.

Sportswear, 10 Va. App. 460, 465, 393 S.E.2d 418, 421 (1990)

(citation omitted).    Based upon the commission's factual

determination upon conflicting evidence, we cannot find as a

matter of law that Massaro's evidence sustained his burden of

proof.

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

                                                              Affirmed.




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