                        COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia


GILBERT J. PERKEY, t/a
 BOTETOURT STONEMASONS
                                           MEMORANDUM OPINION * BY
v.   Record No. 1870-02-3                JUDGE ROBERT J. HUMPHREYS
                                              JANUARY 28, 2003
RANDALL WAYNE FRIDLEY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Monica Taylor Monday (Gentry, Locke, Rakes &
          Moore, on brief), for appellant.

          Rhonda L. Overstreet (Lumsden, Overstreet &
          Hansen, on brief), for appellee.


     Gilbert J. Perkey, t/a Botetourt Stonemasons, appeals a

decision of the commission awarding Randall Wayne Fridley

temporary total disability benefits, temporary partial disability

benefits and medical benefits, and assessing against Perkey a fine

of $500, pursuant to Code § 65.2-805 for failing to insure its

liability for workers' compensation purposes.    Perkey contends the

commission erred in finding that he had three or more employees

regularly in service and that he was, therefore, subject to the




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
commission's jurisdiction.   For the reasons that follow, we affirm

the decision of the commission.

     We first note that Perkey does not dispute the commission's

determination that Fridley, the claimant, and Gilbert Perkey, his

son, were "employees" within the meaning of Code § 65.2-101(2)(h).

Instead, Perkey confines his argument to whether the commission

erred in finding that Thomas Perkey, also his son, was an employee

and that Perkey therefore had three or more employees regularly in

service, subjecting him to the commission's jurisdiction pursuant

to the Act.   We disagree with Perkey's contention in this regard.

          Under Code § 65.2-101, employers with fewer
          than three employees are exempt from
          coverage under the Workers' Compensation
          Act. The employer has the burden of
          producing evidence that it is exempt from
          coverage. 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). "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); see also Metropolitan
          Cleaning Corp., Inc. v. Crawley, 14 Va. App.
          261, 264, 416 S.E.2d 35, 37 (1992) (en
          banc). We are bound by the commission's
          findings of fact if those findings are
          supported by credible evidence. Lynch v.
          Lee, 19 Va. App. 230, 234, 450 S.E.2d 391,
          393 (1994). On appeal, we construe the
          evidence in the light most favorable to the
          employer, the party prevailing below.
          Whitlock v. Whitlock Mechanical/Check
          Services, Inc., 25 Va. App. 470, 479, 489
          S.E.2d 687, 692 (1997).




                               - 2 -
Osborne v. Forner, 36 Va. App. 91, 95, 548 S.E.2d 270, 272

(2001).

     Therefore, we must determine if there is evidence in the

record that credibly supports the commission's finding that Thomas

Perkey was Perkey's employee and not an independent contractor.

          "The elements of an employment relationship
          are: (1) selection and engagement of the
          employee, (2) payment of wages, (3) power of
          dismissal, and (4) power of control of the
          employee's action. The most important of
          these is the element of control." Behrensen
          v. Whitaker, 10 Va. App. 364, 366, 392
          S.E.2d 508, 509 (1990) (citation omitted).
          The first three elements "are not the
          ultimate facts, but only those more or less
          useful in determining whose is the work and
          where is the power of control." Stover v.
          Ratliff, 221 Va. 509, 512, 272 S.E.2d 40, 42
          (1980).

Mount Vernon Builders, Inc. v. Rotty, 28 Va. App. 511, 514, 507

S.E.2d 95, 96-97 (1998).

          [Thus,] [t]he right of control is the
          determining factor in ascertaining the
          parties' status in an analysis of an
          employment relationship. Virginia
          Employment Comm'n v. A.I.M. Corp., 225 Va.
          338, 347, 302 S.E.2d 534, 539 (1983). And
          the right of control includes not only the
          power to specify the result to be attained,
          but the power to control "the means and
          methods by which the result is to be
          accomplished." [Richmond Newspapers v.
          Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843
          (1982)]. An employer-employee relationship
          exists if the party for whom the work is to
          be done has the power to direct the means
          and methods by which the other does the
          work. "[I]f the latter is free to adopt
          such means and methods as he chooses to
          accomplish the result, he is not an employee
          but an independent contractor." A.I.M.

                              - 3 -
          Corp., 225 Va. at 347, 302 S.E.2d at 540;
          Craig v. Doyle, 179 Va. 526, 531, 19 S.E.2d
          675, 677 (1942). The extent of the reserved
          right of control may be determined by
          examining the performance of the parties in
          the activity under scrutiny.

Intermodal Services, Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d

221, 224 (1988).

     The evidence in the case at bar, when considered in the light

most favorable to Fridley, established that Thomas Perkey had

worked primarily for his father since he was a teenager. 1   The

evidence further established that he was transported to the

various sites in the company vehicle, that he was paid on a

"square footage basis, that averaged out to an hourly thing" of

approximately $8.00 per hour, and that he primarily used his

father's equipment when performing his work.   In fact, Perkey

testified that he was not able to work on "major" jobs, like those

he worked on with his father, because he "didn't have the

equipment" to allow him to do so.

     Moreover, the evidence supported the commission's

determination that Perkey had the "power to direct the means and

methods by which [Thomas Perkey did his] work."   Intermodal, 234

Va. at 601, 364 S.E.2d at 224.    Indeed, Thomas Perkey conceded, in

response to questioning by the deputy commissioner, "[y]eah, he

tells me how he wants it done, overall result.    I mean if he wants



     1
       Thomas Perkey testified that he was 21 years of age at the
time of the hearing.

                                 - 4 -
a wall, he tells me he needs a wall."   Further, Gilbert Perkey

testified that his father established quitting time and that he

gave the workers, including Thomas Perkey, their individual

assignments.   He also stated that when "it came to stuff we didn't

know about, then [Perkey] would do it."   Finally, Thomas Perkey

himself testified that he did not bid for other large jobs, but

only did "small" jobs for friends.

     Because credible evidence existed in the record to support

the commission's determination that Thomas Perkey was an

"employee," not an independent contractor, and that Perkey

therefore, regularly employed three or more employees, we find no

error in its finding that it possessed jurisdiction over Fridley's

claim.

                                                           Affirmed.




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