                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Alexandria, Virginia


MOUNT VERNON BUILDERS, INC.
AND
CONTINENTAL CASUALTY COMPANY
                                               OPINION BY
v.   Record No. 0417-98-4            JUDGE JERE M. H. WILLIS, JR.
                                            DECEMBER 1, 1998
BRIAN ERIC ROTTY


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
          Iris W. Redmond (Scott C. Ford; Midkiff &
          Hiner, P.C., on brief), for appellants.

          Christopher M. Day, Assistant Attorney
          General (Mark L. Earley, Attorney General),
          for Uninsured Employer's Fund.

          John B. Delaney (Delaney, McCarthy, Colton &
          Botzin, P.C., on brief), for appellee.



     On appeal from a decision of the Workers' Compensation

Commission awarding benefits to Brian Rotty, Mount Vernon

Builders, Inc. (Mount Vernon) contends that the commission erred:

(1) in holding that Rotty was not an independent contractor; (2)

in holding that Mount Vernon was Rotty's statutory employer; and

(3) in calculating Rotty's "average weekly wage" to be $450.    We

affirm the commission's decision on the first two issues.     On the

issue of Rotty's "average weekly wage," we reverse and remand to

the commission for recalculation.

                                I.

     Under familiar principles, we view the evidence in the light

most favorable to Rotty, the party prevailing below.    The
commission's findings of fact will be upheld on appeal if they

are supported by credible evidence.      James v. Capitol Steel

Construction Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488-89

(1989).

     Mount Vernon, a general contractor, was hired to repair the

porch and roof of a residence.    Mount Vernon contracted to pay

Hector Roque $1,800 to repair the roof.     The job required both

shingle and flat roof work.   Roque contracted to pay Rotty $450

to perform the flat roof work.    Rotty and Roque worked together

during the week at Burgundy Roofing, where Rotty had been a

roofer, off and on, for ten years.
     On November 2, 1996, Roque drove Rotty to the work site.

Rotty brought his personal roofing tools.     Roque rented an air

compressor.   Roque, Rotty and two other laborers began work on

the shingle roof by pulling off the old shingles.     Rotty helped

Roque prepare the roof for new shingles by "prepping" the plywood

and checking for loose nails.    Roque then told Rotty to begin

work on the flat roof.   As Rotty walked onto the flat roof,

rotten plywood collapsed underneath him and he fell two and

one-half stories onto concrete, fracturing his spine, pelvis and

wrist.    The parties stipulated the cause and nature of his

injuries.

     Rotty filed for temporary total disability benefits.      The

deputy commissioner held that Rotty was an independent contractor

and thus did not qualify for benefits.     She held further that



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Mount Vernon was not Rotty's statutory employer, because Mount

Vernon and Roque were not in the same trade or business.    Because

she made no award, the deputy commissioner did not calculate

Rotty's average weekly wage.

     On review, the full commission held that Rotty was Roque's

employee, that Mount Vernon was Rotty's statutory employer, and

that Rotty's average weekly wage was $450.

                                II.
     Mount Vernon contends that Rotty was an independent

contractor and not Roque's employee.

     "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).   Thus, "[o]ne is an employee of another if the person for

whom he or she works has the power to direct the means and

methods by which the work is done."    Craddock Moving & Storage

Co. v. Settles, 16 Va. App. 1, 4, 427 S.E.2d 428, 430 (1993)

(citation omitted), aff'd, 247 Va. 165, 440 S.E.2d 613 (1994).

     Credible evidence supports the commission's finding that



                               - 3 -
Rotty was Roque's employee.    Roque hired Rotty for the job,

transported Rotty to the site, and provided tools needed for the

job.   Roque had the "power to direct the means and methods by

which [Rotty did] the work."      Intermodal Services, Inc. v. Smith,

234 Va. 596, 601, 364 S.E.2d 221, 224 (1988).     All of his work

prior to his injury was work performed by Rotty under Roque's

supervision.   Roque controlled Rotty's means and methods of work.

 See Uninsured Employer's Fund v. Clark, 26 Va. App. 277, 283,

494 S.E.2d 474, 477 (1998).
                                  III.

       Mount Vernon next contends that the commission erred in

holding that Rotty was Mount Vernon's statutory employee.      It

argues that Roque's work was not part of its "trade, business or

occupation."   Code § 65.2-302.

       Under Code § 65.2-302, two tests may be used to determine

whether a general contractor is the statutory employer of an

injured worker.    See F. Richard Wilton, Jr., Inc. v. Gibson, 22

Va. App. 606, 610, 471 S.E.2d 832, 834 (1996).     Using the

"subcontracted fraction test," see Code § 65.2-302(B), the full
commission held:
          Mount Vernon was hired to repair and
          reshingle the flat roof, reshingle the rest
          of the roof and build a new front porch.
          Replacing the roof was a
          subcontracted-fraction of the main contract.
           Mount Vernon was the general contractor who
          engaged [Roque] to perform that fraction of
          the contract. Therefore, it is the statutory
          employer of [Rotty].




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The evidence supports this determination.     Mount Vernon is a

general contractor.   Its trade, business or occupation is general

home repair, which includes roof repair.     It entered into a

single contract to repair the porch and roof of a residence.

Thus, Rotty, working under Roque's subcontract, was engaged in

Mount Vernon's trade or business.      Wilton, 22 Va. App. at 610-11,

471 S.E.2d at 834-35.

                                IV.
     Finally, Mount Vernon contends that the commission erred in

calculating Rotty's "average weekly wage."     We agree.   "Average

weekly wage" means
          the earnings of the injured employee in the
          employment in which he was working at the
          time of the injury during the period of
          fifty-two weeks immediately preceding the
          date of the injury, divided by fifty-two
          . . . . When, by reason of a shortness of
          time during which the employee has been in
          the employment of his employer or the casual
          nature or terms of his employment, it is
          impractical to compute the average weekly
          wages as above defined, regard shall be had
          to the average weekly amount which during the
          fifty-two weeks previous to the injury was
          being earned by a person of the same grade
          and character employed in the same class of
          employment in the same locality or community.


Code § 65.2-101(1)(a).   In the interests of fairness, the

calculation should "most nearly approximate the amount which the

injured employee would be earning were it not for the injury."

Code § 65.2-101(1)(b).   Here, the evidence is insufficient to

support the commission's calculation of Rotty's wage.

     Rotty was to be paid $450 for the Mount Vernon job.      The


                               - 5 -
full commission set that amount as Rotty's average weekly wage,

stating only that "[t]he evidence showed the claimant was to

receive $450 for two day's worth of work which is his average

weekly wage."

     Rotty had a full time job as a roofer with Burgundy Roofing.

He testified that he was paid $11 an hour and worked between

twenty and forty hours a week.    Beverly Ange, Burgundy's owner,

testified that Rotty's average weekly wage over the fifty-two

weeks preceding his injury was $230.93.
     The Mount Vernon job was the only "side job" worked by

Rotty.   No evidence suggested that he intended to undertake other

"side jobs" or that other "side jobs" were available.

     Because the commission erroneously calculated Rotty's

average weekly wage, we reverse the commission's decision on this

issue and remand for a redetermination of the amount which he

would be earning were it not for the injury.

     The decision of the commission is affirmed on the issues of

liability.   Its calculation of the award is reversed, and this

case is remanded for a determination of Rotty's "average weekly

wage" and recalculation of his award.
                                               Affirmed in part,
                                               reversed and
                                               remanded in part.




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