                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia


KENNETH R. WOOD
                                            MEMORANDUM OPINION * BY
v.      Record No. 0470-99-3              JUDGE JAMES W. BENTON, JR.
                                               DECEMBER 7, 1999
KENNETH R. WOOD, SOLE PROPRIETOR,
 t/a KRW TRUCKING,
 COMMERCIAL UNION INSURANCE COMPANY,
 NORTH AND SOUTH LINES, INC. AND
 LEGION INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Roger A. Ritchie, Jr. (Roger Ritchie &
             Partners, P.L.C., on brief), for appellant.

             James G. Muncie, Jr. (Midkiff & Hiner, P.C.,
             on brief), for appellees Kenneth R. Wood, t/a
             KRW Trucking and Commercial Union Insurance
             Company.

             Nancy C. Auth (Mark S. Davis; Carr & Porter,
             L.L.C., on brief), for appellees North and
             South Lines, Inc. and Legion Insurance
             Company.


        The Workers' Compensation Commission ruled that Kenneth R.

Wood sustained a compensable injury by accident on February 16,

1997.    Wood and KRW Trucking contend, however, that the commission

erred in finding that on the day of Wood's injury he was employed

by KRW Trucking, not by North and South Lines, Inc.    Wood further

contends the commission erred in finding that he was not a

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
statutory employee of North and South and that his employments

with KRW Trucking and North and South Lines were dissimilar for

purposes of calculating his average weekly wage.   For the reasons

that follow, we affirm the commission's award.

                                 I.

     Our standard of review is well established.

            We do not retry the facts before the
            Commission nor do we review the weight,
            preponderance of the evidence, or the
            credibility of witnesses. If there is
            evidence or reasonable inference that can be
            drawn from the evidence to support the
            Commission's findings, they will not be
            disturbed by this Court on appeal, even
            though there is evidence in the record to
            support contrary findings of fact.

Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d

507, 510-11 (1983).   Thus, on appeal, we are required to view

the evidence in the light most favorable to the party who

prevailed at the commission.    See Crisp v. Brown's Tysons Corner

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).

     So viewed, the evidence proved that North and South is

engaged in the business of transporting freight by motor

vehicles.   It owns tractors and trailers for hauling freight and

occasionally leases equipment for use in its business.     Wood was

hired by North and South in 1991 as a truck driver.    As a

driver, Wood was paid a fixed rate for each mile he drove the

truck.   In 1994, North and South changed Wood's employment from

truck driver to dispatcher.    As a dispatcher, Wood "spen[t] a


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considerable amount of time on the telephone talking to drivers,

solving problems, taking orders from customers, and assigning

loads" for all North and South trucks and other trucks leased to

North and South.    He had a predetermined work schedule and was

paid a salary.

     Shortly after becoming a dispatcher, Wood purchased a

truck, hired a driver, and began operating an entity known as

KRW Trucking.    In that capacity, he entered into a contract with

North and South to lease his truck to North and South for a

specified rate per mile plus other costs.   Although Wood hired

and fired KRW Trucking's drivers, North and South interviewed

those drivers and gave them drug tests.   Under the lease

agreement, Wood had the responsibility to provide proof that his

drivers met all federal and state regulations and criteria.

Pursuant to Department of Transportation rules and regulations,

however, North and South maintained documents regarding all

drivers, including drivers of trucks it leased.   KRW Trucking

had employed only two drivers, both of whom were paid by Wood.

North and South did not pay KRW Trucking's drivers.

     In February 1997, Wood was still employed by North and

South as one of several dispatchers.    The evidence also proved

that on several weekends in 1997, when Wood was not expected to

be on duty as a dispatcher, he drove North and South trucks to

earn extra money.   When he drove the trucks, he was paid by

North and South a fixed rate per each mile he drove the truck.

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He received this pay in addition to his salary for work he

performed as dispatcher.

     On February 16, 1997, Wood was on vacation leave from his

employment as a dispatcher at North and South.   By prior

arrangement, he was in North and South's garage "to work on [KRW

Trucking's] truck" and to make cosmetic repairs, such as sanding

and priming in preparation for painting.   Wood testified that

KRW Trucking has no garage or repair shop and that he was

repairing the truck in North and South's garage because North

and South allowed him to use the garage as a courtesy to him.

Wood performed no mechanical repair work for North and South.

     After working on the truck, Wood swept and cleaned the area

he had used.   He then turned off the lights, stepped on a roller

as he walked away, and fell.   Wood injured his shoulder when he

hit the floor.

     The commission found that Wood's injury did not arise out

of or in the course of his employment with North and South.

Therefore, the commission awarded Wood compensation against KRW

Trucking and ruled that his average weekly wage was to be

computed using only his earnings from KRW Trucking.

                                 II.

     To recover compensation, Wood bore the burden of proving

that his injury arose out of and in the course of his

employment.    See Code § 65.2-101; Metcalf v. A.M. Express Moving

Systems, Inc., 230 Va. 464, 467, 339 S.E.2d 177, 179 (1986).

                                - 4 -
Where the evidence establishes merely a "relationship of

reciprocal gratuity, . . . involving no specific employment

obligations, . . . and no right of control over the performance

of claimant's work," the evidence fails to establish employment.

Behrensen v. Whitaker, 10 Va. App. 364, 367, 392 S.E.2d 508, 510

(1990).

     The commission found as follows:

             Both [Wood] and North and South perceived
          that there was an oral contract in existence
          for KRW [Trucking] to buy the truck at the
          time that [Wood] was performing cosmetic
          repairs on February 16, 1997. This is
          consistent with the fact that [Wood] asked
          for time off from work with North and South
          and his performing repairs on the truck that
          KRW [Trucking] was purchasing, an activity
          he never performed for North and South but
          did routinely perform for KRW [Trucking].
          This shows [Wood] believed that the truck
          was his, as did North and South. [Wood]
          perceived that KRW [Trucking] was a separate
          entity than North and South, as did North
          and South. We find that the evidence
          supports their beliefs and also supports the
          Deputy Commissioner's finding that [Wood]
          had two distinct jobs and that he was acting
          as an employee of KRW [Trucking] at the time
          of his accident.

     The evidence supports these findings because the evidence

clearly proved that KRW Trucking and North and South Lines, Inc.

were two distinct business entities.    Wood was the sole owner

and an employee of KRW Trucking.   Separate from his status as

owner of KRW Trucking, Wood was also employed by North and South

as a dispatcher.   On February 16, however, Wood had obtained



                               - 5 -
vacation leave from North and South and was working on a truck

KRW Trucking had agreed to purchase from North and South.

       The evidence also proved that North and South had removed

the truck from its use.    Wood testified that the truck "was

property owned by KRW Trucking and was . . . to be utilized for

[KRW Trucking] business."    North and South did not employ Wood

as a mechanic and did not pay him for the work he performed on

his truck.    Indeed, Wood has never been employed by North and

South to perform mechanical work.

       Proof that North and South gratuitously allowed Wood to use

its garage to make cosmetic repairs on a truck that KRW Trucking

had agreed to purchase and considered its own was insufficient

to prove Wood was employed at that time by North and South.

Wood was on vacation leave from his employment with North and

South, was not conducting the affairs of North and South, and

was not paid by North and South.    Thus, credible evidence proved

Wood was solely employed by KRW Trucking when he suffered his

injury.   Accordingly, we affirm the commission's ruling that he

was.

                                 III.

       Wood also contends that the evidence proved he was a

statutory employee of North and South.    We disagree.

       In pertinent part, Code § 65.2-302 provides as follows:

             When any person (referred to in this section
             as "owner") undertakes to perform or execute
             any work which is a part of his trade,

                                 - 6 -
          business or occupation and contracts with
          any other person (referred to in this
          section as "subcontractor") for the
          execution or performance by or under such
          subcontractor of the whole or any part of
          the work undertaken by such owner, the owner
          shall be liable to pay to any worker
          employed in the work any compensation under
          this title which he would have been liable
          to pay if the worker had been immediately
          employed by him.

     As the Supreme Court held in Intermodal Services, Inc. v.

Smith, 234 Va. 596, 364 S.E.2d 221 (1988), the purpose of this

statute is to insure compensation coverage for employees of

independent contractors and subcontractors, but "not the

subcontractor himself."   Id. at 603, 364 S.E.2d at 225.   Thus,

the commission did not err in ruling that Wood was not a

statutory employee of North and South.

                                IV.

     "[T]he [dissimilar employment] rule is alive and well in

workers' compensation law."   Uninsured Employer's Fund v.

Thrush, 255 Va. 14, 21, 496 S.E.2d 57, 60 (1998).

          In determining whether two jobs are
          "substantially similar," we look to the
          following: (1) "the duties and skills" of
          each job, and (2) "the primary mission" of
          the employee on each job. [Frederick Fire
          and Rescue v. ]Dodson, 20 Va. App. [440,]
          444-45, 457 S.E.2d [783,] 785 [(1995)]. "In
          every situation where the commission is
          asked to determine whether two or more jobs
          are substantially similar, the commission
          must consider not only the particular duties
          of each job, but also the general nature or
          type of employment of the two jobs."



                               - 7 -
Mercy Tidewater Ambulance v. Carpenter, 29 Va. App. 218, 224,

511 S.E.2d 418, 421 (1999) (quoting Creedle Sales Co. v.

Edmonds, 24 Va. App. 24, 28, 480 S.E.2d 123, 125 (1997)).

     Credible evidence in the record supports the commission's

findings "that the only common skill [Wood employed for both TRW

Trucking and North and South] was that of driving, . . . that

[this common skill] was performed only infrequently for North

and South . . . [, and that] the other skills did not overlap in

the two employments."    Wood's primary employment with North and

South was dispatching the trucks to and from various

destinations in service of North and South's customers.    His

employment with KRW Trucking did not include that function.

Thus, his duties with both entities were so unrelated that we

cannot say the commission erred in concluding they were not

substantially similar.

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

                                                          Affirmed.




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