The appellant in this workers’ compensation case was injured while crop dusting in the course of his employment with the appellee. The Commission denied the appellant’s claim after finding that the evidence failed to establish that the appellee had the requisite number of employees necessary for coverage under the Act. From that decision, comes this appeal.
On appeal, the appellant contends that the Commission erred in so finding. We find no error, and we affirm.
The appellant’s sole point for reversal consists of a challenge to the Commission’s finding that he failed to establish that the appellee had the number of employees necessary for coverage under the Arkansas Workers’ Compensation Law. When reviewing the sufficiency of the evidence to support a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if the Commission’s decision is supported by substantial evidence. Cagle Fabricating and Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993). Where the Commission’s denial of relief is based on the claimant’s failure to prove entitlement to benefits by a preponderance of the evidence, the substantial evidence standard of review requires affirmance if the Commission’s opinion displays a substantial basis for the denial of relief. Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992).
In order to be subject to the Arkansas Workers’ Compensation Act, an employer must carry on an employment in which three or more employees are regularly employed in the course of business. See Ark. Code Ann. § 11-9-102(3)(A) (1987); Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (1988). In the case at bar, the record shows that only three individuals were involved with the corporation or its operations in any capacity: the appellant, whom the parties stipulated to be an employee; Randy Atkinson, who was in charge of the flying service; and Howard L. Cissell, who furnished the financing and was president of the corporation. Although corporate officers may be counted as employees if they take an active part in the business, see Aerial Crop Care, Inc., v. Landry, 235 Ark. 406, 360 S.W.2d 185 (1962) and Mountain Valley Superette v. Bottorff, 4 Ark. App. 251, 629 S.W.2d 320 (1982), the question of whether a corporate officer is sufficiently active in the corporation to be considered an employee is to be determined by the circumstances of each case. Fraternal Order of Eagles v. Kirby, 6 Ark. App. 198, 639 S.W.2d 529 (1980). In the Aerial Crop Care case, supra, the Supreme Court found that the three corporate officers were employees based on evidence that each of them flew a plane, which happened to be the principal work of the corporation, and that each officer’s pay depended to some extent on the amount of flying done. Aerial Crop Care, Inc., 235 Ark. at 409. Likewise, the corporate officers in the Mountain Valley case were found to be employees on the strength of evidence that they worked in the daily operation of the corporation, and that the dividends they received from the corporation bore a direct relationship to the work performed by each of them in the daily operation of the business.
In the case at bar, the Commission found that Mr. Cissell was not sufficiently active in the business to be counted as an employee. In support of this finding, the Commission noted that there was no evidence that he was actively involved in the daily operations or routine decisions of the business, or relating to any other duties that he may have performed as president of the corporation. The Commission stated that, although there was evidence that Mr. Cissell visited the office on four or five occasions, and that he was occasionally consulted on decisions of an extraordinary nature, his involvement in the business was essentially passive and he should therefore not be counted as an employee in considering whether the appellee is subject to the Act.
The Commission further found that the appellee did not come within the coverage of the Act under the provisions of Ark. Code Ann. § ll-9-102(3)(C), which provides that “[ejvery employment in which one (1) or more employees are employed by a contractor who subcontracts any part of his contract” is covered by the Act. The Commission rejected this argument because it found that the evidence failed to establish that the appellee subcontracted any part of its business. In so holding, the Commission noted that, although Mr. Atkinson and Mr. Cissell characterized their relationship as one of a contractor/subcontractor, the question of whether one is a subcontractor is a question of fact for the Commission to decide. Bailey v. Simmons, 6 Ark. App. 193, 639 S.W.2d 526 (1982).
In holding that Ark. Code Ann. § ll-9-102(3)(C) was not applicable to this claim, the Commission noted that a subcontractor is defined as one who enters into a contract for the performance of work which another has already contracted to perform, id., and found that Mr. Atkinson was responsible for setting up the operations and generally arranged all contracts for the corporation’s services himself. Under the circumstances of this case, we think that the Commission’s opinion provides a substantial basis for the denial of relief, and we hold that its decision is supported by substantial evidence.
Affirmed.
Mayfield, J., dissents.