                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, Agee and Senior Judge Coleman


DIVERSIFIED TECHNOLOGY, LLC AND
 PRINCETON INSURANCE COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 1860-02-1                         PER CURIAM
                                              DECEMBER 10, 2002
STEVE PANCOAST

           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (S. Vernon Priddy III; Mary Louise Kramer;
             Sands Anderson Marks & Miller, on brief), for
             appellants.

             (Ann K. Sullivan; David N. Payne; Crenshaw,
             Ware & Martin, P.L.C., on brief), for
             appellee.


     Diversified Technology, LLC ("Diversified Technology") and

its insurer contend the Workers' Compensation Commission erred

in finding that Steve Pancoast (claimant) was its employee at

the time of his compensable injury by accident on May 1, 2001.

Upon reviewing the record and the parties' briefs, we conclude

that this appeal is without merit.     Accordingly, we summarily

affirm the commission's decision.     Rule 5A:27. 1



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Diversified Technology raises five Questions Presented in
its brief. However, all of those questions address the sole
issue of whether claimant was Diversified Technology's employee
rather than an independent contractor. Accordingly, on appeal,
we address that sole issue, while taking into account the
various arguments made by Diversified Technology in its brief.
     "The Workers' Compensation Act covers employees but not

independent contractors."    County of Spotsylvania v. Walker, 25

Va. App. 224, 229, 487 S.E.2d 274, 276 (1997).    This distinction

must be determined from the facts of each case, with the burden

upon the person seeking benefits under the Act to prove the

employer/employee relationship contemplated by the Act.     Id. at

229-30, 487 S.E.2d at 276; see Code § 65.2-101.    Although the

commission's factual findings are binding and conclusive on

appeal, when they are supported by credible evidence, see James

v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d

487, 488 (1989), a "[d]etermination of the [employer/employee]

relationship involves a mixed question of law and fact which is

reviewable on appeal."    County of Spotsylvania, 25 Va. App. at

230, 487 S.E.2d at 276.

     Generally, an individual "'is an employee if he works for

wages or a salary and the person who hires him reserves the

power to fire him and the power to exercise control over the

work to be performed.    The power of control is the most

significant indicium of the employment relationship.'"

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

509-10 (1990) (quoting Richmond Newspapers, Inc. v. Gill, 224

Va. 92, 98, 294 S.E.2d 840, 843 (1982)).

          [T]he 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." An employer/employee
                             - 2 -
          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."
          The extent of the reserved right of control
          may be determined by examining the
          performance of the parties in the activity
          under scrutiny.

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

221, 224 (1988) (citations omitted).

     In holding that an employee/employer relationship existed

between claimant and Diversified Technology, the commission made

the following findings:

          [T]he record established that Diversified
          Technologies exercised a significant amount
          of control over the claimant to make him an
          employee. The Deputy Commissioner believed
          the claimant's testimony regarding the means
          and methods of the work he performed. This
          testimony established that the claimant
          worked for the employer, side by side with
          [Jon] King at the job sites, and that King
          instructed the claimant on the means and
          methods of the work to be performed. King
          also directed the claimant's work hours.
          The claimant did not supply his own tools,
          although he did have some of his own. The
          evidence showed that King supplied the cable
          and the essential tools for the job on which
          the claimant worked. The evidence also
          showed that King would correct any mistakes
          in the work and solve any problems. All of
          these factors support the Deputy
          Commissioner's conclusion that the claimant
          was an employee of Diversified Technologies.

     Claimant's testimony constitutes credible evidence to

support the commission's finding that he was Diversified

                             - 3 -
Technology's employee rather than an independent contractor.     As

fact finder, the commission was entitled to weigh the

credibility of the witnesses, to accept claimant's testimony,

and to reject the contrary testimony of employer's witnesses.

It is well settled that credibility determinations are within

the fact finder's exclusive purview.     Goodyear Tire & Rubber Co.

v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).

     Claimant's testimony established that he had only limited

experience in the cable industry and that King agreed to provide

claimant with minimal training.   Claimant's testimony also

proved that Diversified Technology hired him for an indefinite

period and not for any specific job.   Claimant's testimony, as

well as King's testimony, established that Diversified

Technology agreed to pay claimant wages equal to a certain

percentage of the profits realized from the work performed.

Claimant's right to a share of the profits did not necessarily

make him an independent contractor, rather "[i]t merely

constituted the manner of payment and the measure of

compensation for his services . . . ."     Jackson v. Haynie's

Adm'r, 106 Va. 365, 368, 56 S.E. 148, 149 (1907).    Moreover,

"[p]ayment of wages, alone, is not the determinative factor."

Purvis v. Porter Cabs, Inc., 38 Va. App. 760, 773 n.4, 568

S.E.2d 424, 430 n.4 (2002).

     Claimant's testimony also proved that King obtained the

work that he and claimant performed; King instructed claimant as
                             - 4 -
to where and when to report for work; King supplied the

essential tools for the job; King obtained the supplies

necessary to complete the job; and King reserved the right to

exercise control over the means and methods by which claimant's

work was ultimately accomplished.    Lastly, King admitted in his

deposition testimony that he could have had claimant removed

from the jobsite by the police if claimant did not perform his

assigned duties in a manner that was acceptable to King. 2   Thus,

credible evidence supports the commission's finding that

Diversified Technology exercised the requisite control over

claimant to make him its employee.

     Contrary to Diversified Technology's contention, claimant's

work history before he began working for Diversified Technology

and/or his relationship to other entities in the past were not

relevant factors to the commission's determination of claimant's

relationship with Diversified Technology.    See Intermodal, 234

Va. at 601, 364 S.E.2d at 224; Behrensen, 10 Va. App. at 367,

392 S.E.2d at 509-10.   In addition, Diversified Technology's

assertion that claimant's refusal to sign the "Subcontractor

Agreement" supported an inference that, by his silence, he

acquiesced to the terms of the agreement does not logically

follow.   To the contrary, claimant testified that he never read




     2
       The deputy commissioner admitted the depositions of
claimant and King into evidence at the October 22, 2001 hearing.
                             - 5 -
the agreement before his injury and that he had no intention of

signing it.   Furthermore,

          in the worker's compensation context, the
          existence of the master servant
          relationship . . . "does not depend upon how
          the parties designate each other in their
          contract." Rather, the individual's status
          in relation to the alleged employer is to be
          determined from all the facts and
          circumstances adduced by the evidence,
          including the provisions of any written
          agreement.

Virginia Employment Comm'n v. A.I.M. Corp., 225 Va. 338, 347,

302 S.E.2d 534, 539 (1983) (citations omitted).

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

                                                         Affirmed.




                             - 6 -
