COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
GEORGE PHILLIP THOMAS
MEMORANDUM OPINION *
v. Record No. 0896-97-3 PER CURIAM
SEPTEMBER 9, 1997
RICHARDSON BUILDERS, INC. and
SOUTHERN INSURANCE COMPANY
OF VIRGINIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Philip B. Baker; Joseph A. Sanzone
Associates, on brief), for appellant.
(Cathie W. Howard; Pierce & Howard, on
brief), for appellees.
George P. Thomas (claimant) contends that the Workers'
Compensation Commission erred in finding that he was an
independent contractor rather than an employee of Richardson
Builders, Inc. (employer) at the time of his October 1, 1994
injury by accident. Upon reviewing the record and the briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
"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). Generally, an individual "'is an
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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)). See also
Stover v. Ratliff, 221 Va. 509, 512, 272 S.E.2d 40, 42 (1980).
The employer-employee relationship exists if the power to control
includes not only the result to be accomplished, but also the
means and methods by which the result is to be accomplished.
Behrensen, 10 Va. App. at 367, 392 S.E.2d at 510. Unless we can
say as a matter of law that claimant's evidence sustained his
burden of proving that he worked for employer as an employee
rather than an independent contractor, the commission's findings
are binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In holding that an employee-employer relationship did not
exist between claimant and employer, the commission found as
follows:
The issue in this case is whether
the employment relationship ended
on September 22, 1994, as alleged
by Mr. Richardson. This becomes an
issue of credibility. Mr.
Richardson's testimony that the
claimant terminated the exclusive
employment relationship to work as
an independent contractor is
corroborated by his payroll
records. The claimant's testimony
2
is corroborated to some extent by
two co-workers, who testified that
the claimant worked with them up
until the time of the accident, and
they were unaware of any change in
his status. However, the testimony
of one of these employees was
equivocal in terms of whether the
claimant was definitely working on
the Friday before the accident, and
both witnesses were incorrect about
the date of the accident in their
initial statements. Although we
are somewhat troubled by the
finding that the claimant changed
his status from employee to
independent contractor while
working at the same house (Number
15), nonetheless we are persuaded
by Mr. Richardson's testimony.
In its role as fact finder, the commission accepted
Richardson's testimony and rejected the testimony of claimant and
his two co-workers with regard to claimant's employment status.
It is well settled that credibility determinations are within the
fact finder's exclusive purview. See Goodyear Tire & Rubber Co.
v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).
Richardson's testimony, which was corroborated by the payroll
records, supports the commission's finding that claimant was not
an employee under the Workers' Compensation Act. Accordingly, we
cannot say as a matter of law that claimant's evidence sustained
his burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
3
George P. Thomas v. Richardson Bldr & Southern Ins
Combined Opinion