dissenting.
It is well established that, when an employer defends a claim on the ground that it is not subject to the provisions of the Virginia Workers’ Compensation statute, the employer has the burden of proving, by a preponderance of the evidence, that it regularly employs less than three employees in Virginia. Craddock Moving & Storage Co. v. Settles, 16 Va.App. 1, 2, 427 S.E.2d 428, 429 (1993), aff'd, 247 Va. 165, 440 S.E.2d 613 (1994) (per curiam); see also Mark Five Constr. Co. v. Gonzalez, 42 Va.App. 59, 62, 590 S.E.2d 81, 83 (2003). It is equally settled that, “if an employer regularly employs three or more persons to carry out the established mode of performing the work of the business, he should remain subject to the provisions of the Act even if ... the number of his employees temporarily falls below three.” Cotman v. Green, 4 Va.App. 256, 259, 356 S.E.2d 447, 449 (1987) (emphasis added). Here, the majority concludes that the evidence before the commission was insufficient to prove that Delisle regularly employed less than three employees, holding instead that “the commission could not reasonably find that the period of seven to eight months in which R & T Construction had two employees was reflective of the established mode in which Delisle operated R & T Construction.” Because I believe that this finding ignores our appellate standard of review, I disagree.
The determination of whether an employer has met its burden of proving that it regularly employed less than three employees “is made by the Commission after exercising its role as finder of fact.” Bass v. City of Richmond Police Dept., 258 Va. 103, 114, 515 S.E.2d 557, 563 (1999). And, on appeal, we are bound by the commission’s findings of fact as long as “there was credible evidence presented such that a reasonable mind could conclude that the fact in issue was proved.” *427Westmoreland Coal Co. v. Campbell, 7 Va.App. 217, 222, 372 S.E.2d 411, 415 (1988) (emphasis in original).
Also, “[w]e do not judge the credibility of witnesses or weigh the evidence on appeal.” Celanese Fibers Co. v. Johnson, 229 Va. 117, 121, 326 S.E.2d 687, 690 (1985). Rather, “ ‘[i]t is our duty to determine whether credible evidence supports the Commission’s finding ... and, if such evidence exists, to sustain the finding.’ ” Id. (quoting Cook v. City of Waynesboro, 225 Va. 23, 31, 300 S.E.2d 746, 750 (1983)) (omission in original). Moreover, if there is credible evidence in the record supporting the commission’s factual findings, we are bound by those findings regardless of whether there is evidence that may support a contrary finding. Morris v. Badger Powhatan/Figgie Int’l, Inc., 3 Va.App. 276, 279, 348 S.E.2d 876, 877 (1986); Russell Loungewear v. Gray, 2 Va.App. 90, 95, 341 S.E.2d 824, 826 (1986).
Here, the commission found:
The evidence predominates in establishing that Mr. Delisle did not employ three or more employees in the same business for three months before the claimant’s accident and for four months following the claimant’s accident. Furthermore, the record does not reflect that Mr. Delisle’s established mode of performing the work of his business necessarily required him to employee [sic] three or more employees. To the contrary, Mr. Delisle explained that he chose not to replace a third employee who left his employ in 2000 because he did not need the additional worker to perform his business. The Deputy Commissioner concluded that Mr. Delisle’s testimony was credible and we defer to him in this regard.
(Emphasis added). The commission concluded that “Mr. Delisle sustained his burden of proving that he did not regularly employ three or more employees in the Commonwealth at the time of the claimant’s accident and injury....” Because I believe that credible evidence in the record supports this finding, I would affirm.
*428Specifically, the record indicates that Delisle’s business only had two employees during the continuous eight-month period from December 2000 until August 2001. And, more importantly, Delisle “chose not to replace” the employee who left in December of 2000 “because he did not need the additional worker to operate his business.” Accordingly, this is not a case where the employer periodically fluctuated “between being subject to the Act and being exempt from it.” Osborne v. Forner, 36 Va.App. 91, 96, 548 S.E.2d 270, 273 (2001). That is, Delisle did not have three employees one week, two employees the next week, three employees the week after that, and so on and so forth. Nor is this a case, as the majority apparently believes, where the evidence indicates that the established mode of Delisle’s business required three employees, and the number of employees only temporarily fell below three. Delisle did not testify that, after his third employee left in December 2000, he intended to eventually rehire a third employee. Rather, Delisle testified that he did not rehire a third employee because he did not need a third employee. This suggests a permanent — rather than temporary — change in the number of employees. The fact that this change did not persist beyond an eight-month period is of little significance because the intended permanency of the change should be measured as of the date of Perry’s accident, and not four months later.
The commission clearly relied on Delisle’s testimony, which it found to be credible, to conclude that, at the time of Perry’s accident in April 2001, the employer’s “established mode of business” did not require three or more employees. In my view, then, the record does contain credible evidence supporting the commission’s finding that, at the time of the accident, Delisle did not “regularly employ three or more employees.” Thus, because I would affirm the commission’s dismissal of Perry’s claim, I respectfully dissent.