COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
GILBERT J. PERKEY, t/a
BOTETOURT STONEMASONS
MEMORANDUM OPINION * BY
v. Record No. 1870-02-3 JUDGE ROBERT J. HUMPHREYS
JANUARY 28, 2003
RANDALL WAYNE FRIDLEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Monica Taylor Monday (Gentry, Locke, Rakes &
Moore, on brief), for appellant.
Rhonda L. Overstreet (Lumsden, Overstreet &
Hansen, on brief), for appellee.
Gilbert J. Perkey, t/a Botetourt Stonemasons, appeals a
decision of the commission awarding Randall Wayne Fridley
temporary total disability benefits, temporary partial disability
benefits and medical benefits, and assessing against Perkey a fine
of $500, pursuant to Code § 65.2-805 for failing to insure its
liability for workers' compensation purposes. Perkey contends the
commission erred in finding that he had three or more employees
regularly in service and that he was, therefore, subject to the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
commission's jurisdiction. For the reasons that follow, we affirm
the decision of the commission.
We first note that Perkey does not dispute the commission's
determination that Fridley, the claimant, and Gilbert Perkey, his
son, were "employees" within the meaning of Code § 65.2-101(2)(h).
Instead, Perkey confines his argument to whether the commission
erred in finding that Thomas Perkey, also his son, was an employee
and that Perkey therefore had three or more employees regularly in
service, subjecting him to the commission's jurisdiction pursuant
to the Act. We disagree with Perkey's contention in this regard.
Under Code § 65.2-101, employers with fewer
than three employees are exempt from
coverage under the Workers' Compensation
Act. The employer has the burden of
producing evidence that it is exempt from
coverage. Craddock Moving & Storage Co. v.
Settles, 16 Va. App. 1, 2, 427 S.E.2d 428,
429 (1993), aff'd per curiam, 247 Va. 165,
440 S.E.2d 613 (1994). "What constitutes an
employee is a question of law, but whether
the facts bring a person within the law's
designation, is usually a question of fact."
Baker v. Nussman, 152 Va. 293, 298, 147 S.E.
246, 247 (1929); see also Metropolitan
Cleaning Corp., Inc. v. Crawley, 14 Va. App.
261, 264, 416 S.E.2d 35, 37 (1992) (en
banc). We are bound by the commission's
findings of fact if those findings are
supported by credible evidence. Lynch v.
Lee, 19 Va. App. 230, 234, 450 S.E.2d 391,
393 (1994). On appeal, we construe the
evidence in the light most favorable to the
employer, the party prevailing below.
Whitlock v. Whitlock Mechanical/Check
Services, Inc., 25 Va. App. 470, 479, 489
S.E.2d 687, 692 (1997).
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Osborne v. Forner, 36 Va. App. 91, 95, 548 S.E.2d 270, 272
(2001).
Therefore, we must determine if there is evidence in the
record that credibly supports the commission's finding that Thomas
Perkey was Perkey's employee and not an independent contractor.
"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).
Mount Vernon Builders, Inc. v. Rotty, 28 Va. App. 511, 514, 507
S.E.2d 95, 96-97 (1998).
[Thus,] [t]he right of control is the
determining factor in ascertaining the
parties' status in an analysis of an
employment relationship. Virginia
Employment Comm'n v. A.I.M. Corp., 225 Va.
338, 347, 302 S.E.2d 534, 539 (1983). And
the 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." [Richmond Newspapers v.
Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843
(1982)]. An employer-employee 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." A.I.M.
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Corp., 225 Va. at 347, 302 S.E.2d at 540;
Craig v. Doyle, 179 Va. 526, 531, 19 S.E.2d
675, 677 (1942). The extent of the reserved
right of control may be determined by
examining the performance of the parties in
the activity under scrutiny.
Intermodal Services, Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d
221, 224 (1988).
The evidence in the case at bar, when considered in the light
most favorable to Fridley, established that Thomas Perkey had
worked primarily for his father since he was a teenager. 1 The
evidence further established that he was transported to the
various sites in the company vehicle, that he was paid on a
"square footage basis, that averaged out to an hourly thing" of
approximately $8.00 per hour, and that he primarily used his
father's equipment when performing his work. In fact, Perkey
testified that he was not able to work on "major" jobs, like those
he worked on with his father, because he "didn't have the
equipment" to allow him to do so.
Moreover, the evidence supported the commission's
determination that Perkey had the "power to direct the means and
methods by which [Thomas Perkey did his] work." Intermodal, 234
Va. at 601, 364 S.E.2d at 224. Indeed, Thomas Perkey conceded, in
response to questioning by the deputy commissioner, "[y]eah, he
tells me how he wants it done, overall result. I mean if he wants
1
Thomas Perkey testified that he was 21 years of age at the
time of the hearing.
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a wall, he tells me he needs a wall." Further, Gilbert Perkey
testified that his father established quitting time and that he
gave the workers, including Thomas Perkey, their individual
assignments. He also stated that when "it came to stuff we didn't
know about, then [Perkey] would do it." Finally, Thomas Perkey
himself testified that he did not bid for other large jobs, but
only did "small" jobs for friends.
Because credible evidence existed in the record to support
the commission's determination that Thomas Perkey was an
"employee," not an independent contractor, and that Perkey
therefore, regularly employed three or more employees, we find no
error in its finding that it possessed jurisdiction over Fridley's
claim.
Affirmed.
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