                   COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia


UNINSURED EMPLOYER'S FUND
                                        MEMORANDUM OPINION* BY
v.   Record No. 1901-02-1             JUDGE JERE M.H. WILLIS, JR.
                                             MARCH 18, 2003
KEVIN M. CORNELIUS AND
 15TH STREET AMUSEMENT PARK, L.L.C.


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          John J. Beall, Jr., Senior Assistant Attorney
          General (Jerry W. Kilgore, Attorney General;
          Richard L. Walton, Jr., Senior Assistant
          Attorney General, on brief), for appellant.

          Stephen A. Strickler (Inman & Strickler, PLC,
          on brief), for appellee Kevin M. Cornelius.

          No brief or argument for appellee 15th
          Street Amusement Park, L.L.C.


     The Uninsured Employer's Fund (the Fund) appeals a decision

of the Workers' Compensation Commission awarding compensation

benefits to Kevin M. Cornelius (claimant).   The Fund contends

the commission erred in holding that 15th Street Amusement Park,

L.L.C. (employer) regularly employed three or more employees

within the Commonwealth on the date of claimant's injury by

accident, thereby subjecting employer to the commission's




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
jurisdiction.   See Code § 65.2-101 "Employee" (2)(h).   Finding

no error, we affirm.

               "The threshold jurisdictional issue
          which the commission had to decide was
          whether the employer regularly had in his
          service three or more employees so as to
          come within the coverage of the Act.
          '"Employee" means . . . [e]very person
          . . . in the service of another under any
          contract of hire or apprenticeship, written
          or implied, except . . . one whose
          employment is not in the usual course of the
          trade, business, occupation or profession of
          the employer.' Both full-time and part-time
          employees who are regularly employed to
          carry out the trade or business of the
          employer must be counted in determining the
          number of employees 'regularly in service'
          to the employer. 'Any person hired by the
          employer to work in the usual course of the
          employer's business is an "employee" under
          the Act regardless of how often or for how
          long he may be employed.' The number of
          employees regularly in service of the
          employer is the number 'used to carry out
          the established mode of performing the work
          of the business . . . even though the work
          may be recurrent instead of constant.'"

Uninsured Employer's Fund v. Kramer, 32 Va. App. 77, 82, 526

S.E.2d 304, 306 (2000) (quoting Smith v. Hylton, 14 Va. App.

354, 356, 416 S.E.2d 712, 714 (1992) (citations omitted)).

     In affirming the deputy commissioner's finding that the

employer was subject to the commission's jurisdiction, the

commission found as follows:

               This employer had three or more
          employees regularly in service during its
          business season as an amusement park.
          [Bruce] Mimran[, the operating owner of the
          business,] testified that the employer
          employed over 15 people in July 2000.
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          Although most of the amusement park rides
          were removed [on or about August 7, 2000]
          after a dispute with the company that owned
          them, the employer continued to operate
          several booth games and a parking lot until
          September 2000. These operations logically
          required fewer employees as the season moved
          to a close. After Labor Day 2000, the
          claimant was the only employee left on the
          payroll. He testified that he continued to
          operate a game booth and a parking lot after
          Labor Day, but that around the time of the
          accident he only parked cars. In March
          2001, the employer resumed its operations
          with the requisite number of employees
          needed to run an amusement park.

           *      *       *       *      *      *      *

               The employer's established mode of
          business involved operating an amusement
          park during the appropriate seasons, and it
          admittedly and necessarily employed over
          three employees to carry out this business.
          The claimant's injury occurred while he was
          breaking down a game setup at the end of the
          season. The claimant's status as a covered
          employee should not fluctuate merely because
          his injury occurred at the end of the season
          when the employer needed one employee on the
          payroll, as opposed to during the height of
          the amusement park season when it employed
          well over three employees.

     On appeal, we view the evidence in the light most favorable

to the party prevailing below.     R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).     The

commission's factual findings are conclusive and binding on this

Court when those findings are based on credible evidence.      See

James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382

S.E.2d 487, 488 (1989).


                                 - 3 -
       The testimony of Mimran and claimant supports the

commission's findings.   "That evidence established that at

various times during the year preceding claimant's injury by

accident, employer '"used [three or more employees] to carry out

the established mode of performing the work of the business

. . . even though the work [might have been] recurrent instead

of constant."'"    Kramer, 32 Va. App. at 83, 526 S.E.2d at 306

(citation omitted).

       On direct examination, Mimran agreed that employer's

business was "to run an amusement park."   He acknowledged that

when he opened the amusement park in July 2000, the business

employed fifteen to twenty-one people, including claimant.    The

amusement park's rides were removed in August 2000 due to a

dispute between employer and the company that owned the rides.

The Fund argues that the removal of the rides terminated the

employer's operation of the business.   However, the evidence

establishes that even after the removal of the rides, the

employer continued its business, operating games and the parking

lot.

       The removal of the rides did not change employer's ongoing

need for three or more employees to run its amusement park when

fully operational.    When employer resumed its amusement park

operation in March 2001, it employed well over three employees.

The seasonal nature of employer's amusement park business, which

caused fluctuations in its total number of employees, did not
                              - 4 -
eliminate the commission's jurisdiction where, as here, credible

evidence proved that employer regularly had in service three or

more employees "'to carry out the established mode of performing

the work of the business [of an amusement park] . . . .'"   Id.

at 82, 526 S.E.2d at 306 (citation omitted).

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

                                                        Affirmed.




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