COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
JESSE E. BOWLING, JR.
v. Record No. 1540-96-3 MEMORANDUM OPINION *
PER CURIAM
P & G OIL CORPORATION t/a DECEMBER 10, 1996
P & G TRUCKING CORPORATION AND
THE UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James B. Feinman; Esther S. McGuinn, on
brief), for appellant.
(J. Gorman Rosenberger, Jr.; Wilson, Garbee &
Rosenberger, on brief), for appellee P & G
Oil Corporation t/a P & G Trucking
Corporation.
(James S. Gilmore, III, Attorney General;
Robert L. Walker, Assistant Attorney General;
John J. Beall, Jr., Assistant Attorney
General, on brief), for appellee The
Uninsured Employer's Fund.
Jesse E. Bowling, Jr. ("claimant") contends that the
Workers' Compensation Commission ("commission") erred in denying
him compensation benefits on the ground that he was an
independent contractor, rather than an employee of P & G Oil
Corporation ("P & G"), at the time of his industrial 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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
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 P & G as an employee rather
than an independent contractor, the commission's findings are
binding and conclusive upon us. 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 P & G, the commission found as
follows:
Even without considering the Contract
Agreement itself, we agree with the Deputy
Commissioner's conclusion that the claimant
was an independent contractor. . . . The
Deputy Commissioner found the defendants
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credible in their testimony regarding the
claimant's autonomy in selecting his own
loads and determining his routes and
schedule. While we are not bound by these
credibility determinations, we will not
arbitrarily reject them. The evidence
reflects that the claimant was given a list
of brokers whom he was to contact to obtain
loads to haul. These brokers advanced
claimant expenses for the trip. The claimant
reported daily on his whereabouts to the
defendant, who paid the claimant twenty-five
percent of the proceeds. The corporation
owned and maintained the truck, as well as
the ICC license. However, the claimant was
free to turn down loads, and chose his own
routes. These factual findings point towards
an independent contractor relationship.
In its role as fact finder, the commission accepted the
testimony of P & G's witnesses and rejected claimant's testimony
with regard to his employment status. 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). The testimony of P & G's
witnesses supports the commission's finding that claimant was not
an employee of P & G under the Workers' Compensation Act ("the
Act"). Accordingly, we cannot say as a matter of law that
claimant's evidence sustained his burden of proof.
We also find no merit in claimant's argument that even if
the commission did not err in finding that he was an independent
contractor, it erred in not holding P & G responsible to him for
workers' compensation benefits pursuant to Code § 65.2-302. Code
§ 65.2-302(A)(1) does not provide workers' compensation benefits
to independent contractors who are not employees under the Act.
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Rather, Code § 65.2-302(A)(1) renders an owner liable for
workers' compensation benefits to workers employed by a
subcontractor, where the owner has contracted with the
subcontractor for the subcontractor to perform work which is a
part of the owner's trade, business, or occupation. Code
§ 65.2-302 has no applicability to the facts of this case.
For these reasons, we affirm the commission's decision.
Affirmed.
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