                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia


W & L CONSTRUCTION & PAVING, INC.
 and PENNSYLVANIA MANUFACTURERS'
 ASSOCIATION INSURANCE COMPANY           MEMORANDUM OPINION * BY
                                        JUDGE SAM W. COLEMAN III
v.       Record No. 2764-96-3                 MAY 27, 1997

HERCHEL FRANK SULLIVAN, JR.


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           James G. Muncie, Jr. (Kathryn Spruill Lingle;
           Midkiff & Hiner, P.C., on brief), for
           appellants.

           Gerald F. Sharp (Browning, Lamie & Sharp,
           P.C., on brief), for appellee.



     W & L Construction & Paving, Inc. and its insurer appeal the

decision of the Workers' Compensation Commission granting Herchel

Frank Sullivan (claimant) temporary total disability benefits.

The commission held that the claimant was a statutory employee of

W & L Construction and that the claimant was temporarily totally

disabled for psychiatric reasons.   Finding no error, we affirm

the commission's decision.

     Viewed in the light most favorable to the claimant as the

prevailing party, the evidence established that the claimant was

employed by MMS Trucking at the time of his injury.    MMS Trucking

is a trucking company owned and operated by Myra Sullivan, the

claimant's sister-in-law.    MMS Trucking owned one dump truck,
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
which was driven by the claimant and had one employee, the

claimant.    Myra Sullivan negotiated and entered into a contract

with W & L Construction, a general contractor, to haul asphalt

and gravel to various construction job sites.

                          STATUTORY EMPLOYEE

     In order to recover, the claimant had the burden of proving

that he was an employee of MMS Trucking, which was a

subcontractor of W & L Construction.      See Craddock Moving &
Storage Co. v. Settles, 16 Va. App. 1, 3, 427 S.E.2d 428, 430

(1993), aff'd, 247 Va. 165, 440 S.E.2d 613 (1994); Code

§ 65.2-302.   "'What constitutes an employee is a question of

law'; however, whether a specific person falls within that

definition 'is usually a question of fact.'"      Metropolitan

Cleaning Corp. v. Crawley, 14 Va. App. 261, 264, 416 S.E.2d 35,

37 (1992) (en banc) (citation omitted).

     In determining whether an individual is an employee, we

consider four elements:    1) selection and engagement of the

servant; 2) payment of wages; 3) power of dismissal; and 4) power

of control of the servant's action.      Hamilton Trucking/Hamilton

Terminal Corp. v. Springer, 10 Va. App. 710, 715, 396 S.E.2d 379,

381 (1990) (citation omitted).    "[T]he first, second and third of

these elements are not essential to the relationship. . . .       The

'power of control' is the most significant element bearing on the

question."    Id.; see also Richmond Newspapers, Inc. v. Gill, 224

Va. 92, 98, 294 S.E.2d 840, 843 (1982); Behrensen v. Whitaker, 10



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Va. App. 364, 366-67, 392 S.E.2d 508, 509-10 (1990).
          The right of control inherent in an employer
          and employee relationship is the power to
          control the means and methods by which the
          result sought is to be accomplished. An
          employer retains power to direct "the means
          and methods" by which an employee performs
          his or her work. Furthermore, "it is not the
          actual exercise of control, but the right to
          control," that is determinative.


James v. Wood Prods. of Virginia, 15 Va. App. 754, 757, 427

S.E.2d 224, 225 (1993) (citations omitted).
     In this case, the evidence proves that Myra Sullivan had the

right to control the means and methods by which the claimant

performed his work.   She delegated the authority and

responsibility for conducting the claimant's day to day duties to

W & L Construction under the contract.    The nature of the hauling

contract with W & L Construction made it unnecessary for Ms.

Sullivan to directly control the claimant on a daily basis.    Ms.

Sullivan negotiated the contracts for hauling, with the exception

of the occasional weekend hauling for individuals who contacted

the claimant directly.   She received all payments for hauling,

both from W & L Construction and from private individuals.     The

claimant did not pay for use of the truck, rather, he was paid to

operate it.   The fact that he was paid a percentage of the gross

receipts is of no consequence.     See Hill City Trucking, Inc. v.

Christian, 5 Va. App. 106, 111, 360 S.E.2d 867, 869 (1987), rev'd

on other grounds, 238 Va. 735, 385 S.E.2d 377 (1989).    Ms.

Sullivan withheld all state and federal taxes from the claimant's



                                 - 3 -
paycheck and paid his Social Security taxes.     She was solely

responsible for all maintenance, insurance, and operating

expenses relating to the dump truck.     She retained the power to

control the claimant and how he performed his work and as such he

was an employee of MMS Trucking.

     Because MMS Trucking did not have three or more regular

employees at the time of claimant's injury, it is not subject to

the Workers' Compensation Act.    Code § 65.2-101(2)(h).   However,

since MMS was engaged in the same trade, business, or occupation

as W & L Construction, the claimant was a statutory employee of

that corporation.   Code § 65.2-302.     Thus, the commission did not

err in finding that the claimant was a statutory employee of
W & L Construction.

                          TOTAL DISABILITY

     Upon appellate review, the commission's findings of fact

will be upheld when supported by credible evidence in the record.

 Stancill v. Ford Motor Co., 15 Va. App. 154, 158, 421 S.E.2d

872, 874 (1992).    Here, the commission found that the claimant

was totally disabled as of February 27, 1996 as a result of

post-traumatic stress disorder and anxiety depressive syndrome.

Dr. McKnight, a psychiatrist who was treating the claimant, and

Dr. Kanwal, an internist, both opined that, while the claimant

had recovered from his physical injury and was physically able to

work, he was totally disabled by the post-traumatic stress

disorder and anxiety depressive disorder caused by the accident.



                                 - 4 -
This uncontradicted evidence constitutes sufficient credible

evidence for the commission to have found that the claimant was

temporarily totally disabled as a result of the accident.

Accordingly, we affirm the decision of the commission.

                                                         Affirmed.




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