                     COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia


MARY LEE FRANCES KEENE, ADMINISTRATOR
 OF THE ESTATE OF HARRISON KEENE,
 DECEASED
                                         MEMORANDUM OPINION * BY
v.   Record No. 2641-00-3                 JUDGE G. STEVEN AGEE
                                              MAY 22, 2001
THERESA M. BOOTHE, t/a
 P & C PAINTING AND
 UNINSURED EMPLOYER'S FUND


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Paul G. Beers (Jerry L. Falwell, Jr.; Glenn,
          Feldmann, Darby & Goodlatte, on briefs), for
          appellant.

          Robert L. Walker, Assistant Attorney General
          (Mark L. Earley, Attorney General; John J.
          Beall, Jr., Senior Assistant Attorney
          General, on brief), for appellee Uninsured
          Employer's Fund.

          No brief or argument for Teresa M. Boothe,
          t/a P & C Painting.


     Mary Lee Frances Keene (the claimant) filed a claim for

death benefits against Theresa M. Boothe, t/a P & C Painting

(P&C) on September 13, 1999 with the Virginia Workers'

Compensation Commission (commission) as a result of the drowning

death of her husband, Harrison Keene (Keene), on April 27, 1999.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     After an evidentiary hearing, Deputy Commissioner Herring

denied the claim finding P&C had an insufficient number of

employees to bring it under the jurisdiction of the Virginia

Workers' Compensation Act (the Act).     The claimant appealed the

decision to the full commission.

     In a review opinion, dated October 20, 2000, the full

commission affirmed the denial of benefits, but on different

grounds.    While finding that it had jurisdiction to consider the

matter, the commission also found that the accident did not

occur during the course of Keene's employment with P&C and,

therefore, was not a compensable claim.

     Both the claimant and the Uninsured Employer's Fund (Fund)

noted an appeal.     As P&C was uninsured, the Fund would be liable

for an award in favor of the claimant in accordance with Code

§ 65.2-1203.      The claimant challenges the commission's decision

that her husband's death did not occur during the course of his

employment.    The Fund challenges the commission's assertion of

jurisdiction. 1

     For the following reasons we affirm the commission's

decision.




     1
       The Fund withdrew its separate appeal, assigning as
cross-error, as an appellee in this appeal, the commission's
finding as to jurisdiction.

                                  - 2-
                            I.   BACKGROUND

     P&C's 1998 payroll records reflect that nine people were

paid by the business during that calendar year.   The records

reflect that P&C paid three people for the week ending September

18, 1998.    All other weeks reflect payment to either one or two

employees.   The 1999 payroll records showed payments to three

people:   Keene, Mike Nichols and Edward Woolridge.   While Keene

and Nichols were paid over several months, Woolridge was paid

once on January 15, 1999.

     While the payroll records only mention those three

employees, Paul Boothe (Boothe), the former owner of the

company, regularly represented P&C by providing customers with

estimates for jobs, negotiating contracts, supervising jobs and

doing some painting.   Boothe admitted that he cancelled P&C's

Workers' Compensation insurance without the owner's knowledge

because he did not think the firm needed the coverage.    He

affirmed the owner, his ex-wife, was the boss and directed his

actions, although he did not always follow her instructions.

Boothe disclaimed any ownership interest in P&C and testified

P&C paid for his expenses in cash but he was not on the payroll.

     P&C employed Keene as a painter and as Boothe's driver.

Keene would routinely pick up Boothe and take the "work van" to

the job site.   He did so on the date of his death, April 27,

1999, when Keene fell from a boathouse/deck complex on Smith

Mountain Lake and drowned.

                                  - 3-
     The property where Keene was working when he died was

Edward Waters' private residence.       Waters had previously used

P&C to paint some of his commercial property with Boothe having

acted as P&C's agent for those jobs.      Waters had asked for and

received a certificate of Workers' Compensation insurance when

P&C began doing work on his commercial properties showing

coverage through May 28, 1999.

     According to Waters, he hired P&C to paint the boathouse at

his private residence, again making arrangements with Boothe,

who provided a written estimate on P&C letterhead.

     Boothe nonetheless testified that he and Waters had reached

a subsequent oral agreement when Boothe related that he and

Keene could do the work for less than P&C would charge.

According to Boothe, he and Keene were to split what money was

left after material costs were covered.      Boothe also claimed

P&C's owner was not aware that Boothe and Keene were painting

this property as a "side job" despite the P&C van being driven

to the site and the use of P&C equipment.      At the completion of

the boathouse job, Waters paid Boothe in cash.      Boothe then paid

the claimant with a personal check.

     At the accident scene, Boothe informed the investigator

that he and Keene were employees of P&C.      In addition, OSHA

cited and fined P&C for the accident.




                                 - 4-
                          II.    ANALYSIS

                        A.    Jurisdiction

     The Fund challenges the commission's finding that it had

jurisdiction to consider the claim.     The Fund argues that P&C

did not fall under the authority of the Act because it did not

"regularly" employ three persons at the time of the accident.

We disagree.

          "'Employee' means . . . [e]very person . . .
          in the service of another under any contract
          of hire or apprenticeship, written or
          implied, except . . . one whose employment
          is not in the usual course of the trade,
          business, occupation or profession of the
          employer." Both full-time and part-time
          employees who are regularly employed to
          carry out the trade or business of the
          employer must be counted in determining the
          number of employees "regularly in service"
          to the employer. "Any person hired by the
          employer to work in the usual course of the
          employer's business is an 'employee' under
          the Act regardless of how often or for how
          long he may be employed." The number of
          employees regularly in service of the
          employer is the number "used to carry out
          the established mode of performing the work
          of the business . . . even though the work
          may be recurrent instead of constant."

Smith v. Hylton, 14 Va. App. 354, 356, 416 S.E.2d 712, 714

(1992) (citations omitted).

     The commission found that the firm did employ three or more

persons at the time of the accident, and on appeal we view the

evidence in the light most favorable to the claimant, who

prevailed on this issue below.    Allen & Rocks, Inc. v. Briggs,

28 Va. App. 662, 672, 508 S.E.2d 335, 340 (1998).    "'"Decisions

                                 - 5-
of the commission as to questions of fact, if supported by

credible evidence, are conclusive and binding on this Court."'"

Id. at 673, 508 S.E.2d at 340 (citations omitted).

     It is the employer's burden (here, the Fund's burden) to

produce sufficient evidence upon which the commission can find

that the employer employed fewer than three employees regularly

in service in Virginia and that it is thus exempt from the Act.

Craddock Moving & Storage Co. v. Settles, 16 Va. App. 1, 2, 427

S.E.2d 428, 429 (1993), aff'd per curiam, 247 Va. 165, 440

S.E.2d 613 (1994).   Here, the employer failed to meet this

burden.

     We hold the commission's finding that P&C regularly

employed three employees in April 1999 to be supported by

credible evidence.   Payroll records show that P&C paid both

Keene and Nichols from February 26 through April 30, 1999.

Additionally, while the payroll records do not reflect payments

to him, the firm employed Boothe.     Boothe worked 40 hours per

week negotiating, supervising and painting; he was reimbursed by

the firm for his expenses; he used without charge the firm's

vehicle, driver and equipment; he took direction from Theresa

Boothe, the firm's owner; he was perceived as an employee and

agent of P&C by clients such as Waters; his name and telephone

number appeared on P&C business cards; and he informed the

investigating officer that he and Keene were employees of P&C.



                               - 6-
     Under these circumstances we are persuaded that an implied

contract to pay wages or reimbursement existed between Boothe

and P&C, and the commission's finding of a third employee is

thus supported.   We find this case distinguishable from

Charlottesville Music Center, Inc. v. McCray, 215 Va. 31, 205

S.E.2d 674 (1974), cited and relied on by the Fund.   In McCray,

fifteen-year-old Jeffrey McCray stopped in at the

Charlottesville Music Center to help a friend, who had a summer

job at the store, install shelving.   While the owner of the

Music Center knew McCray was present, he had not agreed to pay

the boy for his efforts.   Id. at 35-36, 205 S.E.2d at 678.

     McCray was killed as he assisted in the shelving project,

and his administrator sued the store for death benefits under

the Act.   The Supreme Court of Virginia affirmed the trial

court's conclusion that McCray was not an "employee" within the

meaning of the Act and therefore the administrator could not

recover benefits.   The Supreme Court held that McCray was not an

employee because no "implied contract of hire" existed between

the decedent and the store.   Id. at 35, 205 S.E.2d at 678.

     The Court held that an "implied contract of hire" may be

presumed from the circumstances surrounding the parties' working

relationship:

           An implied contract of hire exists where one
           party has rendered services or labor of
           value to another under circumstances which
           raise the presumption that the parties
           intended and understood that they were to be

                               - 7-
             paid for, or which a reasonable man in the
             position of the person receiving the benefit
             of the services or labor would or ought to
             know that compensation or remuneration of
             some kind was to be exchanged for them.

Id.   The circumstances surrounding McCray's voluntary passing

presence at the Music Center did "not permit a presumption that

decedent and defendant, by their conduct, intended that decedent

would be paid for his work."      Id. at 35-36, 205 S.E.2d at 678.

The circumstances in this case, as set out above, however, do

permit such a presumption.    Finding Boothe to be a third

employee of P&C, the commission correctly found it had

jurisdiction in this matter.

        B.   Compensable Accident Occurring During Employment

      The commission found as a fact that the boathouse job was

not performed under a contract between Waters and P&C, but was

instead a direct contract between Keene and Boothe (as the

vendor) and Waters (as the vendee).      Having found that Keene was

not engaged in P&C work at the time of the accident, the

commission accordingly held Keene's death did not occur during

the course of employment with P&C and was therefore not

compensable.    Bound by basic principles of appellate review, we

must affirm the commission's decision.

      An injury is compensable under the Act if it results from an

accident and arises out of and in the course of the claimant's

employment.    Code § 65.2-101.   The requirement that the injury

be "arising out of" employment pertains to the origin or cause

                                  - 8-
of the injury.     Combs v. Virginia Electric & Power Company, 259

Va. 503, 509, 525 S.E.2d 278, 282 (2000).    In contrast, the

requirement that the injury arise "in the course of employment"

refers to the time, place and circumstances under which the

accident occurred.     Id. at 511, 525 S.E.2d at 283.   "An accident

occurs in the course of employment when it takes place within

the period of the employment, at a place where the employee may

reasonably be, and while he is reasonably fulfilling the duties

of his employment or engaged in doing something incidental

thereto."     Id. (citing Bradshaw v. Aronovitch, 170 Va. 329, 335,

196 S.E. 684, 686 (1938)).

        The determination of whether Keene's death arose out of and

in the course of his employment is a mixed question of law and

fact.     See Norfolk Community Hosp. v. Smith, 33 Va. App. 1, 4,

531 S.E.2d 576, 578 (2000).    We review mixed questions of law

and fact de novo.     Fairfax County Sch. Bd. v. Rose, 29 Va. App.

32, 37, 509 S.E.2d 525, 527 (1999).     However, the claimant urges

a broad scope of de novo review that essentially asks this Court

to make new findings of fact as opposed to applying the law to

historical fact as determined by the commission.    While

distilling mixed questions of fact and law can be a murky

business, we are not at liberty to retry factual findings on

appeal.     See Roanoke Belt, Inc. v. Mroczkowski, 20 Va. App. 60,

68, 455 S.E.2d 267, 271 (1995).



                                 - 9-
     The claimant argues that the commission should have

accorded her a presumption that Keene died during the course of

his employment based on the rule established in Southern Motor

Lines Co. v. Alvis, 200 Va. 168, 171, 104 S.E.2d 735, 738

(1958):

          Where an employee is found dead as the
          result of an accident at his place of work
          or nearby, where his duties may have called
          him during the hours of this work, and there
          is no evidence offered to show what caused
          his death or to show that he was not engaged
          in his master's business at the time, the
          Court will indulge the presumption that the
          relation of master and servant existed at
          the time of the accident and that it arose
          out of and in the course of his employment.

This claim fails on two grounds.

     First, assuming we could ignore the factual findings of the

commission that Keene was working a "side job" at the time of

his accident, the Alvis presumption cannot be applied where

there is any evidence to show Keene "was not engaged in his

master's business at the time."    Id. at 171, 104 S.E.2d at 738.

Here, there clearly was evidence in the record (Boothe's

testimony that he and Keene were working a "side job") that

Keene was not engaged in P&C business at the time of his death.

Accordingly, the Alvis presumption is not available.     See Thomas

Nelson Ltd. Partnership v. Fritz, 11 Va. App. 269, 397 S.E.2d

891 (1990).

     Moreover, while Keene was an ongoing employee of P&C,

according to the testimony of Boothe, Keene was not engaged in

                              - 10-
P&C's employ at the time of the accident.   The commission found

as a fact that he was engaged in a "side job" essentially as an

independent contractor.   We cannot set aside this finding of

historical fact as it is supported by credible evidence in the

form of Boothe's testimony and the uncontradicted evidence of

the method of payment by Waters to Boothe and then Boothe to the

claimant.   While this Court may have reached a different

conclusion based on the evidence, as the concurring opinion

reflects, we cannot substitute our judgment on appeal for that

of the trier of fact as to the weight of the evidence and

witness credibility when reviewing its findings of fact.    Dollar

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

154 (1996).   Since Keene was not on P&C business at the time of

his death, the Alvis presumption cannot apply.

     The claimant also argues that the commission's factual

determination as to whether the boathouse job belonged to P&C or

Keene and Boothe individually is not binding on this Court as

there is no credible evidence in the record to support that

finding.    We must disagree.

     We cannot hold, as a matter of law based on the record,

that there is no credible evidence to support the commission's

finding.    While we may question the commission's conclusions, as

the concurring opinion reflects, there was direct evidence from

Boothe verifying the nature of the boathouse work as a side job.

There was no direct testimony to contradict Boothe's version

                                - 11-
which was further supported by the method of payment.   We cannot

say as a matter of law that Boothe's testimony was inherently

incredible and, therefore, we are bound by the commission's

finding of fact that the boathouse job was not a P&C contract.

     Since Keene was not in P&C's employ at the time of the

accident, the commission did not err in determining the accident

was not compensable as the death did not arise out of and in the

course of employment with P&C.

     The decision of the commission is affirmed.

                                                   Affirmed.




                                 - 12-
Coleman, J., concurring.

     Although I am obliged to concur in the majority holding

that credible evidence supports the commission's factual finding

that the job to paint Edward Waters' boathouse was a "side job"

entered into between Paul Boothe and Edward Waters, I write

separately to express my view that on this record the commission

has unjustly permitted Theresa M. Boothe, t/a P & C Painting and

Paul Boothe to avoid their responsibility under the Workers'

Compensation Act for the death of their employee, Harrison

Keene.   Admittedly, the testimony of Paul Boothe, if believed,

which obviously the commission accepted, would prove that Keene

was not working on a job for P&C when he died in a work-related

accident.    However, had I been the fact finder, in my view, a

preponderance of the evidence proved that Keene died while

working for P & C Painting, and not while working independently

for Paul Boothe.   I feel compelled to write separately on this

occasion to express to the commission my concern for the unjust

result, in my opinion, occasioned by their fact finding role in

this case.

     The evidence makes clear, and the commission obviously

found, that Paul Boothe, the former owner of P & C Painting, and

the former husband of Theresa Boothe, the ostensible owner of

P & C Painting, was an employee and agent of P & C Painting.

Despite Paul Boothe's effort to have P&C's financial records

reflect that he received no financial gain from P&C and that he

                                - 13-
did not work for P&C but merely volunteered his extensive

services in obtaining business for P&C and performing daily

management and labor responsibilities, the commission obviously

did not believe Paul Boothe as to whether he was an employee of

P&C.   The evidence makes clear, and the commission so found,

that Boothe was an employee of P&C despite his efforts to make

it appear that he was not an employee.    The obvious reason that

Boothe was attempting to exclude himself as an employee was to

avoid P&C's responsibility of being required to provide workers'

compensation insurance under the Workers' Compensation Act.

Boothe admitted that he canceled P&C's workers' compensation

insurance without Theresa Boothe's knowledge because he did not

think that P&C needed the coverage.     On these facts, the

commission rejected, as not credible, P&C's evidence that Boothe

was not an employee of P&C.

       As to whether Keene's death occurred while working for P&C

or while he was performing an independent "side job" with Paul

Boothe, the evidence is equally compelling, in my opinion, that

Boothe was attempting to also avoid P&C's responsibility of

having Keene's death covered by the Act when he testified that

the Waters' job was a "side job."   Obviously, the commission, as

fact finder, believed Boothe that the work was a "side job," and

the commission believed this despite Paul Boothe's other

transparent attempts to avoid responsibility under the Act and

despite Edward Waters' testimony that he hired P & C Painting,

                                - 14-
with whom he had done business before, to paint the boathouse.

As fact finder I would have rejected Paul Boothe's testimony

that he had accepted the Waters' job on a personal basis at a

lesser price than what his employer, P & C Painting, would have

done the job and that he did so using P&C's van and equipment,

all of which was unknown to and contrary to the business

interest of his employer and former wife for whom he was

performing duties like a full-time employee/foreman on a

"volunteer" basis.   Moreover, the fact that Paul Boothe paid

Keene's widow, after the fact, the wages to which Harrison Keene

would have been entitled, a fact that the commission relied upon

to believe Paul Boothe, is scant evidence, in my opinion, upon

which the commission should have relied to believe Paul Boothe

that he and Keene were performing a "side job."

     My oath requires that I give deference to the commission's

factual finding, but had I been the trier of fact I would have

concluded that Harrison Keene died as the result of an accident

that arose out of and during the course of his employment with

P & C Painting and that he was not performing a "side job" with

Paul Boothe.




                               - 15-
