                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


RICHARD A. SPITZER

v.   Record No. 0145-97-4                        MEMORANDUM OPINION *
                                                     PER CURIAM
THE FRIED COMPANY AND                               MAY 27, 1997
 UNITED STATES FIRE INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (David Rosenblum; Rosenblum and Rosenblum, on
           brief), for appellant.
           (John K. Coleman; Slenker, Brandt, Jennings &
           Johnston, on brief), for appellees.



     Richard A. Spitzer (claimant) contends that the Workers'

Compensation Commission (commission) erred in finding that The

Fried Company (Fried) was not claimant's statutory employer at

the time of his industrial injury on November 18, 1994.      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 5A:27.

     Claimant was employed by Patrick M. Furlow t/a Sign Graphics

South (Furlow).   Furlow builds and installs signs.     In its

capacity as a property management corporation, Fried was involved

in the construction and leasing of a shopping center being built

by Frontier Joint Limited Partnership (Frontier).      Fried hired

Furlow to build and install a sign advertising the availability

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
of space within the shopping center.    Claimant sustained an

injury by accident while working with this sign on the shopping

center premises on November 18, 1994.   Claimant filed a claim for

benefits, naming Fried as his employer.

     The commission denied claimant's application, holding that

he failed to prove that the construction and installation of

advertising signs was part of Fried's trade, business, or

occupation.   In so holding, the commission made the following

findings:
                 Fried clearly has certain obligations in
            connection with the building and leasing of
            the shopping center which would include the
            advertising of available space. However, it
            has no employees of its own which engage in
            the actual building of signs. Rather, all
            advertising is contracted. If we accept
            counsel's reasoning, then employees of a
            newspaper or other advertising medium
            utilized by Fried might be considered its
            statutory employees. Here, it did nothing
            more than contract with a company which built
            signs. Fried exercised no control over the
            means by which Furlow built or installed the
            signs. It only approved the end result
            before payment. In this regard, we note the
            involvement of Fried's employee, Rose Jones,
            in the placement of advertising signs on the
            property. However, we find that Jones'
            responsibility was nothing more than assuring
            that the signs and their placement complied
            with the wishes of her employer.


     In Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162

(1972), the Supreme Court set forth the test this Court must use

in determining whether claimant was engaged in Fried's trade,

business, or occupation:
               "[T]he test is not one of whether the
          subcontractor's activity is useful,



                                  2
            necessary, or even absolutely indispensable
            to the statutory employer's business, since,
            after all, this could be said of practically
            any repair, construction or transportation
            service. The test (except in cases where the
            work is obviously a subcontracted fraction of
            a main contract) is whether this
            indispensable activity is, in the business,
            normally carried on through employees rather
            than independent contractors."


Id. at 722, 187 S.E.2d at 167.    Here, no evidence showed that

Fried normally installed and maintained leasing signs through its

own employees. 1   Thus, although Furlow's work may have been

useful or necessary to Fried's business, because Fried did not

perform such work through its own employees, the commission did

not err in finding that Furlow's activity was not part of Fried's

trade, business, or occupation.    Accordingly, the commission did

not err in finding that Fried was not claimant's statutory

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

                                                            Affirmed.




     1
      In addition, no evidence showed that the work performed by
Furlow was a subcontracted fraction of the main contract between
Fried and Frontier.



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