                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


MARK EDWARDS T/A EDWARDS
 BUILDING & REMODELING

v.   Record No. 2447-95-1                        MEMORANDUM OPINION *
                                                     PER CURIAM
ROBERT INGALLS                                     APRIL 23, 1996
AND
UNINSURED EMPLOYERS' FUND


                                      FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
              (Larry D. King, on brief), for appellant.

              (Byron A. Adams, on brief), for appellee
              Robert Ingalls.

              (James S. Gilmore, III, Attorney General;
              Richard L. Walton, Jr., Senior Assistant
              Attorney General; John J. Beall, Jr.,
              Senior Assistant Attorney General;
              Christopher D. Eib, Assistant Attorney
                       General, on brief), for appellee
              Uninsured Employers' Fund.



     Mark Edwards t/a Edwards Building & Remodeling ("Edwards")

contends that the Workers' Compensation Commission erred in

finding that (1) Robert Ingalls ("claimant") was Edwards'

employee rather than an independent contractor; and (2) that

claimant did not commit willful misconduct pursuant to Code

§ 65.2-306.    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.       Rule

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
5A:27.

                         I.   Employee Status

     "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).     On appellate review, the findings of

fact made by the commission will be upheld when supported by

credible evidence.     James v. Capitol Steel Constr. Co., 8 Va.

App. 512, 515, 382 S.E.2d 487, 488 (1989).
     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.'"     Behrensen v. Whitaker, 10 Va.

App. 364, 367, 392 S.E.2d 508, 509-10 (1990) (quoting Richmond

Newspapers, Inc. v. Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843

(1982)).   The employer-employee relationship exists if the power

to control includes not only the result to be accomplished, but

also the means and methods by which the result is to be

accomplished.   Id. at 367, 392 S.E.2d at 510.

     Edwards operated a business which framed houses.      Edwards

testified that he had nine people working for him as of November

12, 1993, the date of claimant's accident.      Edwards did not

classify these individuals as employees, rather, he believed they

were subcontractors.    Edwards based this belief upon the

individuals' work knowledge, the fact that they supplied their

own tools, and their agreement not to have taxes taken out of
their wages.

        Claimant testified that Edwards decided where and when

claimant would work.    On various occasions, Edwards transported

claimant from one job to another.      Claimant stated that Edwards

instructed him on the work which needed to be done at each job.

Although claimant had experience in framing houses, he called

upon Edwards for assistance if he had problems.

        On the day of claimant's November 12, 1993 accident, Edwards

came to a job where claimant was working on a basement and told

claimant to go to another job to work on a porch.     While working

on the porch, claimant fell from homemade scaffolding built by

two co-workers.    As a result of the fall, claimant injured his

knee.
        Edwards paid claimant by the hour on a weekly basis,

sometimes in cash and sometimes by check.     Claimant quit working

for Edwards in June 1993.    Through June 1993, Edwards reported

claimant's earnings for tax purposes on a W-2 form.     Claimant

returned to work for Edwards in October 1993.     After claimant's

November 12, 1993 accident, Edwards reported claimant's earnings

on a 1099 form.

        The testimony of claimant and Edwards provides credible

evidence to support the commission's finding that Edwards' so-

called subcontractors, including claimant, were actually Edwards'

employees for purposes of workers' compensation.     Edwards

controlled not only the result to be accomplished by claimant, an




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hourly employee, but he also controlled the means and methods by

which claimant accomplished his job.

     Based upon this record, we find that the commission did not

err in holding that Edwards employed more than three employees,

and that claimant was Edwards' employee.

                     II.   Willful Misconduct

     "To prevail on the defense of willful violation of a safety

rule, employer must prove that: (1) the safety rule was

reasonable; (2) the rule was known to the employee; (3) the rule

was promulgated for the benefit of the employee; and (4) the

employee intentionally undertook the forbidden act."     Brockway v.

Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995).
               Whether the rule is reasonable and
           applies to the situation from which the
           injury results, and whether the claimant
           knowingly violated it, is a mixed question
           of law and fact to be decided by the
           commission and reviewable by this Court.
           But the question of whether an employee is
           guilty of willful misconduct and whether
           such misconduct is a proximate cause of the
           employee's accident are issues of fact.

Id. at 271-72, 456 S.E.2d at 161.

     In finding that employer did not establish that "claimant

intentionally undertook the purportedly forbidden act," the

commission found as follows:
           Croft, who alleges that he told the
           claimant to get off the scaffolding because
           someone would get hurt, made the singular
           exhortation, and then left. There was no
           enforcement of his alleged dictate. The
           claimant refutes that any such comment was
           made to him. He further states that what
           was built was the type of scaffolding that



                                 4
              had been used by him a number of times in
              the past; and that to his observation it
              had been built the same way he had used it
              previously. Even his employer, though
              suggesting that another scaffolding was
              available, acknowledged that his employees
              sometimes choose to build their own, "which
              was commonplace." Though it would not have
              taken long to assemble the mason's
              scaffolding, what necessarily may have
              taken less time does not imply misconduct
              not to do it. The evidence predominates
              that the employee's conduct was not
              prohibited, but rather was condoned by the
              employer.

     The commission's factual findings are supported by credible

evidence, including the testimony of claimant, Croft, and

Edwards.   Based upon their testimony, the fact finder could infer

that employer condoned the employees' practice of building their

own scaffolding.    Accordingly, we cannot say as a matter of law

that the commission erred in finding that employer's evidence

failed to prove any wrongful intent on claimant's part.     Because

of this finding, employer's defense of willful violation of a

safety rule cannot prevail.    Virginia law requires an employer to

prove more than negligence or the exercise of the will in doing

an act; employer must prove a wrongful intention.      Uninsured

Employer's Fund v. Keppel, 1 Va. App. 162, 164, 335 S.E.2d 851,

852 (1985).

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

                                           Affirmed.




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