                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia


DARRELL W. MOREHOUSE
                                         MEMORANDUM OPINION* BY
v.   Record No. 0437-00-1                 JUDGE RICHARD S. BRAY
                                            OCTOBER 17, 2000
STEWART MILLER AND
 UNINSURED EMPLOYER'S FUND


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Charles A. Johnson (St. Clair & Johnson,
          P.C., on brief), for appellant.

          Amy C. Stallings, Assistant Attorney General
          (Mark L. Earley, Attorney General; John J.
          Beall, Jr., Senior Assistant Attorney
          General, on brief), for appellee Uninsured
          Employer's Fund.

          No brief or argument for appellee Stewart
          Miller.


     Darrell W. Morehouse (claimant) appeals the decision of the

Workers' Compensation Commission (commission) denying his

application for benefits under the Virginia Workers'

Compensation Act (the Act).   Claimant contends that the

commission erroneously determined Stewart Miller (employer)

employed only two persons, including claimant, at the time of

the subject injury and, therefore, was excluded from the Act



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
pursuant to Code § 65.2-101.    We disagree and affirm the

commission.

        The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.    We consider the evidence in the

light most favorable to the prevailing party below, employer and

the Uninsured Employer's Fund in this instance.       See R.G. Moore

Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788,

788 (1990).    "[T]he commission's factual findings are conclusive

and binding on this Court when those findings are based on

credible evidence."     Gunst Corporation v. Childress, 29 Va. App.

701, 707, 514 S.E.2d 383, 386 (1999).      However, when "no

material facts [are] in dispute, the issue whether an individual

is an 'employee' within the meaning of the Act is a question of

law."     Humphries v. Thomas, 244 Va. 571, 574, 422 S.E.2d 755,

756 (1992).

                                  I.

        Claimant was accidentally injured in a fall arising from

and in the course of his services to employer.      At the time of

the occurrence, employer was performing a residential

"re-roofing job" in Virginia Beach, undertaken as a "sole

proprietor," and had engaged claimant and Stanley Aikens,

occasional workers, to assist.    After several days at the task,

a sudden storm "blew in" and claimant "fell off" the roof,

resulting in the subject injuries.       Employer's girlfriend,

                                 - 2 -
Elizabeth Stevens, was present at the accident, then "at the top

of the ladder," "sitting there talking" to employer as he

prepared the roof for the storm.

     Employer testified that Stevens had driven a truck

transporting the men to and from the work site each day, also

"picking up material" and "dumping . . . debris" incidental to

the project.   Routinely, she would "hang around an hour or two"

and occasionally "bring [employer] a ladder . . . a hammer or

something like that."   Claimant recalled that Stevens "tore off"

and "nailed shingles" and "work[ed] side by side with [them] the

whole time."   When not at the "job site," Stevens did "whatever

she wanted to."

     Employer's relationship with Stevens began with "dating"

"about ten years" previously, the two had been "living together"

for "seven or eight months" prior to the accident, and

claimant's testimony indicated that "kids" had resulted from the

union.   Employer paid "all of [the] bills," testifying he "made

enough money that [Stevens] didn't need [a job]."   Employer

denied Stevens was a "driver" or otherwise in his employ,

insisting that he "didn't pay her to work for [him]," because

"she was my girlfriend."   Her whereabouts were unknown at the

time of the hearing.

                                II.

     Code § 65.2-101 defines "Employee" as "[e]very person,

including a minor, in the service of another under any contract

                               - 3 -
of hire or apprenticeship, written or implied . . . ."      However,

Code § 65.2-101 expressly excludes from the Act "[e]mployees of

any person, firm or private corporation . . . that has regularly

in service less than three employees in the same business

. . . ."   Accordingly, Stevens' employment status is the

dispositive issue and the burden to prove the related exclusion

from the Act rests upon employer.      See Craddock Moving & Storage

Co. v. Settles, 16 Va. App. 1, 3, 427 S.E.2d 428, 430 (1993).

                A "contract for hire" is usually
           defined as an agreement in which an employee
           provides labor or personal services to an
           employer for wages or remuneration or other
           thing of value supplied by the employer.

            *      *      *      *        *      *      *

                An implied contract of hire exists
           where one party has rendered services or
           labor of value to another under
           circumstances which raise the presumption
           that the parties intended and understood
           that they were to be paid for, or which a
           reasonable man in the position of the person
           receiving the benefit of the services or
           labor would or ought to know that
           compensation or remuneration of some kind
           was to be exchanged for them.

Charlottesville Music Center, Inc. v. McCray, 215 Va. 31, 35,

205 S.E.2d 674, 677-78 (1974) (citations omitted).     Thus,

"[w]hen services or labor are rendered voluntarily without a

promise of compensation or remuneration of any kind, express or

implied, then the one providing the services or labor has

supplied them gratuitously, and is not covered by the Act."      Id.




                               - 4 -
     Upon review of the instant record, the commission made the

following pertinent findings of fact and conclusions of law:

          The evidence, taken as a whole must
          establish that the circumstances of Stevens'
          employment raised the presumption that her
          work was to be paid for, or must establish
          that [employer], as the person receiving the
          benefit of Stevens' work would, or ought to
          know that compensation or remuneration was
          to be exchanged for Stevens' work. We find
          that evidence does not support this
          conclusion.

           *      *      *      *      *      *      *

               . . . The uncontradicted evidence shows
          that [employer] and Stevens were in a
          relationship of over ten years, they lived
          together, they had children together, and
          they handled finances jointly. [Employer]
          supported their family through his work.
          The only actual evidence in the record
          regarding what compensation, if any, Stevens
          was to receive for her work, was offered by
          [employer] himself. [Employer] testified
          that Stevens was his live-in girlfriend, not
          his employee, and that he did not pay her
          for her help. His testimony is
          uncontradicted by credible evidence. Any
          conclusion that Stevens was to be
          compensated, or receive remuneration for her
          work, can be based only upon speculation
          regarding [employer's] personal relationship
          to Stevens, and the workings of their
          household.

The commission characterized the relationship of employer and

Stevens as "akin to that of a marriage" and relied upon several

prior commission decisions to conclude that Stevens, like a

spouse, "had no reasonable expectation of compensation or

remuneration for work done without pay."




                              - 5 -
     While we concur in the commission's factual findings and

the implications of the specific relationship between employer

and Stevens to the Act, we expressly decline to fully adopt the

commission's rationale.   Without addressing the unique concepts

of marriage in relation to the workplace, we find the instant

record simply fails to establish the requisite contract of hire

between employer and Stevens.   Although Stevens inarguably

provided work-related services to employer in furtherance of the

subject undertaking, and he supplied her shelter and other

necessaries both before and after, the evidence does not suggest

either an agreed exchange in consideration of her labor or the

reasonable expectation of such compensation.

     Thus, like the commission, "considering the nature and

extent of the relationship between [employer] and Stevens, we

find no presumption that Stevens' work was to be compensated or

paid for, [or] . . . that employer would . . . or ought to have

known that some remuneration was due Stevens."   Accordingly,

"Stevens was not [an] employee for purposes of the Act,"

employer "had only two employees regularly in service, and the

commission is without jurisdiction over this claim."

     We, therefore, affirm the commission.

                                                   Affirmed.




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