COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
RAYMOND JOSEPH TRACY
v. Record No. 0910-96-1 MEMORANDUM OPINION *
PER CURIAM
GEORGE L. COLEMAN, JR. SEPTEMBER 17, 1996
AND
UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Raymond J. Tracy, pro se, on brief).
(Thomas A. Fitzgerald, II; Stein & Smith, on
brief), for appellee George L. Coleman, Jr.)
(James S. Gilmore, III, Attorney General;
John J. Beall, Jr., Senior Assistant Attorney
General; Cheryl A. Wilkerson; Assistant
Attorney General, on brief), for appellee
Uninsured Employer's Fund.
Raymond Joseph Tracy ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that (1)
he was not an employee of George L. Coleman, Jr. ("Coleman"); and
(2) he did not prove he sustained an injury by accident arising
out of and in the course of his employment on August 6, 1993.
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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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)). 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. Id. 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 Coleman 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 Coleman, the commission found as
follows:
The evidence does not establish that Coleman
had either the power to control the means and
methods which the claimant used in performing
his job as a long-haul truck driver or the
power to specify the results attained. The
weight of the evidence leads to the
conclusion that he was not hired on Coleman's
authority; that Coleman did not have the
right to terminate his employment; that he
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was engaged in driving a truck leased by a
different business entity; and that his
actions were controlled by that entity. In
making this determination, we rely
principally on the testimony of Coleman,
Valentine [claimant's co-worker], and Winter
[manager/dispatcher for J.D. Martin & Sons
Trucking]. Further, all parties testified
that the claimant had control over the routes
to be used and had the right to accept or
reject loads at the pick-up point. Any loads
accepted had to be approved by Martin, not
Coleman.
In its role as fact finder, the commission accepted the
testimony of Coleman, Valentine, and Winter and rejected
claimant's testimony in 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 Coleman, Valentine, and Winter support the
commission's finding that claimant was not an employee of Coleman
under the Workers' Compensation Act. Accordingly, we cannot say
as matter of law that claimant's evidence sustained his burden of
proof.
Because our holding on this issue disposes of this appeal,
we will not address the second issue concerning whether claimant
proved a compensable injury by accident. For the reasons stated,
we affirm the commission's decision.
Affirmed.
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