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EMPLOYEE

See Jurisdiction, Misrepresentation

"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 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. "The elements of an employment relationship are: (1) selection and engagement of the employee, (2) payment of wages, (3) power of dismissal, and (4) power of control of the employee's action. The most important of these is the element of control." Behrensen v. Whitaker, 10 Va. App. 364, 366, 392 S.E.2d 508, 509 (1990) (citation omitted). The first three elements "are not the ultimate facts, but only those more or less useful in determining whose is the work and where is the power of control." Stover v. Ratliff, 221 Va. 509, 512, 272 S.E.2d 40, 42 (1980). Thus, "[o]ne is an employee of another if the person for whom he or she works has the power to direct the means and methods by which the work is done." Craddock Moving & Storage Co. v. Settles, 16 Va. App. 1, 4, 427 S.E.2d 428, 430 (1993)(citation omitted), aff'd, 247 Va.165, 440 S.E.2d 613 (1994). However, "'it is not the actual exercise of [this] control, but the right [to] control,' that is determinative." James v. Wood Prods. of  Virginia, 15 Va. App.754, 757, 427 S.E.2d 224, 226 (1993) (quoting Hann v. Times-Dispatch Publ'g Co., 166 Va. 102, 106, 184 S.E. 183, 185 (1936)).

Where employer paid claimant wages by the hour and reserved the power to fire him, employer told claimant to report to another employee who then gave claimant instructions and supervised claimant on the job. Employer provided access to the jobsite for claimant. Employer set claimant's work hours and break times. Employer instructed claimant on how he wanted the construction work involving a window and closet completed, and employer provided the materials. The undisputed testimony of claimant, the supervising employee, and the employer was sufficient to prove as a matter of law that employer retained the right to control "the means and methods" by which claimant performed his work. Claimant was, as a matter of law, an employee, rather than an independent contractor.  Wade Michael Sheldon v. Spirits Restaurant, a/k/a J.J. Nikitakis & Company, Inc., Record No. 0655-98-4 (January 12, 1999).

Code Sec. 65.2-302(A)(1) does not provide workers' compensation benefits to independent contractors. Independent contractors are not employees under the Act. Rather, Code Sec. 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 apart of the owner's trade, business, or occupation. A subcontractor does not come under the Act as entitled to compensation. Intermodal Servs., Inc. v. Smith, 234 Va. 596, 364 S.E.2d 221 (1988). (See Statutory Employees, Statutory Employers, below).

Implied contracts of hire and Volunteers: "[E]xcluded from the definition of 'employees' [are] workers who neither receive nor expect to receive remuneration of any kind for their services." Charlottesville Music Cen. v. McCray, 215 Va. 31, 35, 205 S.E.2d 674, 678 (1974). A presumption that an implied contract of hire exists where one party has rendered services or labor of value to another under circumstances which raise the presumption that the parties intended and understood that they were to be paid for, or which a reasonable man in the position of the person receiving the benefit of the services or labor would or ought to know that compensation or remuneration of some kind was to be exchanged for them. Charlottesville Music Cen. v. McCray, 215 Va. 31, 205 S.E.2d 674 (1974).

Code Sec. 65.2-101 ("Employee") (1)(l) provides that for purposes of the Act, "volunteer life saving or rescue squad members, . . . auxiliary or reserve police . . . shall be deemed employees . . . if the [local] governing body of such political subdivision . . . has adopted a resolution acknowledging" that coverage under the Act shall be extended to them. Id. (emphasis added). Virginia Beach has adopted such a resolution. Because the City of Virginia Beach had passed a resolution extending its workers' compensation coverage to members of its auxiliary police force, when claimant was required to assist the auxiliary police officer in the rescue, she became an ad hoc member of the auxiliary police force and thereby became an "employee" under the Act by virtue of Code Sec. 65.2-101 ("Employee") Subsection (1)(l). Joye Annette Compton-Waldrop v. City of Virginia Beach Police Department, Record No. 2385-94-1 (November 14, 1995).

Receipt of a share of the profits suggests a partnership, but no such inference can be drawn if his receipt of a percentage of the net proceeds amounted to "employee wages." See Code Sec. 50-7(4)(b); Robinson v. Allen, 85 Va. 721, 726, 8 S.E. 835, 837-38 (1889).

The Workers' Compensation Act applies to the contractual relationship between employer and employee. Therefore, it must be determined whether claimant was an "employee." "The elements of an employment relationship are: (1) selection and engagement of the employee, (2) payment of wages, (3) power of dismissal, and (4) power of control of the employee's action. The most important of these is the element of control." Behrensen v. Whitaker, 10 Va. App. 364, 366, 392 S.E.2d 508, 509 (1990) (citation omitted). The first three elements "are not the ultimate facts, but only those more or less useful in determining whose is the work and where is the power of control." Stover v. Ratliff, 221 Va. 509,512, 272 S.E.2d 40, 42 (1980). Thus, "[o]ne is an employee of another if the person for whom he or she works has the power to direct the means and methods by which the work is done." Craddock Moving & Storage Co. v. Settles, 16 Va. App. 1, 4, 427 S.E.2d 428, 430 (1993), aff'd, 247 Va. 165, 440 S.E.2d 613 (1994) (citation omitted).

The purpose of the Workers' Compensation Act is to protect "employees." See Rust Eng'g Co. v. Ramsey, 194 Va. 975, 980, 76 S.E.2d 195, 199 (1953). However, Code Sec. 65.2-101 exempts certain employers from liability under the Act by excluding from its definition of "employee," "[e]mployees of any person, firm or private corporation . . . that has regularly in service less than three employees in the same business within this Commonwealth . . . ." Corporate officers of IRS, were employees. See Code Sec. 65.2-101. Because claimant was IRS's employee for purposes of determining liability, he was also its employee for purposes of determining the applicability of the Act. See Smith v. Weber, 3 Va. App. 379, 381, 350 S.E.2d 213,214 (1986).

"[O]nce an employee proves that his or her injury occurred while employed in Virginia, an employer has the burden of producing sufficient evidence upon which the commission can find that the employer employed less than three employees regularly in service in Virginia." Craddock Moving & Storage Co. v. Settles,16 Va. App. 1, 2, 427 S.E.2d 428, 429 (1993), aff'd per curiam, 247 Va. 165, 440 S.E.2d 613 (1994). "Whether a person is an 'employee' and whether an employer  has three or more employees 'regularly in service' are pivotal determinations in deciding if an employer is subject to the Act." Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448 (1987). Both full-time and part-time employees who are regularly employed to carry out the trade or business of the employer must be counted in determining the number of employees "regularly in service" to employer. See id. at 258-59, 356 S.E.2d at 448. "[A]ny person hired by the employer to work in the usual course of the employer's business is an `employee' under the Act regardless of how often or for low long he may be employed. Id. at 258, 356 S.E.2d at 448 (citing Hoffer Bros. v. Smith, 148 Va. 220, 226, 138 S.E. 474, 476 (1927)).

A sole proprietor . . . is not necessarily an independent contractor. A sole proprietor may have employees who are subject to the act. A sole proprietor may also elect to be an employee covered by the act. Whether a sole proprietor who does not so elect is an employee or an independent contractor depends upon the nature of the relationship, particularly whether the person who hires him or her retains the right to control the work to be performed. Whether such a person is an employee under the act is usually a question of fact. Metropolitan Cleaning Corp., Inc. v. Crawley, 14 Va. App. 261,265, 416 S.E.2d 35, 38 (1992). A sole proprietor may obtain coverage as an "employee" as defined in Code Sec. 65.2-101(1)(n) as follows: Any sole proprietor or all partners of a business electing to be included as an employee under the workers' compensation coverage of such business if the insurer is notified of this election. Any sole proprietor or the partners shall, upon such election, be entitled to employee benefits and be subject to employee responsibilities prescribed in this title. When any partner or proprietor is entitled to receive coverage under this title, such person shall be subject to all provisions of this title as if he were an employee; however, the notices required under Sec. 65.2-405 and 65.2-600 of this title shall be given to the insurance carrier, and the panel of physicians required under Sec. 65.2-603 shall be selected by the insurance carrier. Additionally, the provisions of Code Sec. 65.2-305(A) provide: Those employers not subject to this title may, by complying with the provisions of this title and the applicable rules of the Commission, voluntarily elect to be bound by it as to accidents or occupational diseases or both.

Generally, "a person 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 right of control is the determining factor in ascertaining the parties' status in an analysis of an employment relationship. And the right of control includes not only the power to specify the result to be attained, but the power to control "the means and methods by which the result is to be accomplished." An employer-employee relationship exists if the party for whom the work is to be done has the power to direct the means and methods by which the other does the work. "[I]f the latter is free to adopt such means and methods as he chooses to accomplish the result, he is not an employee but an independent contractor." Intermodal Servs., Inc. v. Smith, 234 Va. 596, 600-01, 364 S.E.2d 221, 224 (1988).

Illegal aliens are not employees under the Act. The determination whether claimant was an "employee" depends on whether he met the definition of "employee" set forth in the Virginia Workers' Compensation Act, Code Secs. 65.2-100 to -1310 (the Act). Virginia Beach Police Dept. v. Compton-Waldrop, 252 Va. 302, 305, 477 S.E.2d 514, 516 (1996). A claimant seeking benefits under the Act has the burden of proving that he met this definition. See Behrensen v. Whitaker, 10 Va. App. 364, 366, 392 S.E.2d 508, 509 (1990). Code Sec. 65.2-101 defines, in material part, an "[e]mployee" as "[e]very person, including a minor, in the service of another under any contract of hire." A claimant was not in the service of the employer under any contract of hire because, under the Immigration Reform and Control Act of 1986, an illegal alien cannot be employed lawfully in the United States. See 8 U.S.C. Sec. 1324a; see also Code Sec. 40.1-11.1. Therefore, claimant was not eligible to receive compensation benefits as an "employee" under the Act because his purported contract of hire was void and unenforceable. Jose Granados v. Windson Development Corp., 257 Va. 103, 509 S.E.2d 290 (1999), Record No. 980190 (January 8, 1999) WP Version.

    The commission did not err in finding that an unauthorized or illegal alien, who claims to have been married to an American citizen at the time of the accident, but after the date of employment, is not an "employee" under the Act. As a claimant seeking benefits, claimant bears the burden of establishing that he is an employee under the Act. See Granados v. Windson Dev. Corp., 257 Va. 103, 108, 509 S.E.2d 290, 293 (1999). Code Sec. 65.2-101 defines, in pertinent part, an "employee" as "[e]very person, including a minor, in the service of another under any contract of hire." In Granados, the Supreme Court held that an illegal alien is not an "employee" under the Act because "under the Immigration Reform and Control Act of 1986, an illegal alien cannot be employed lawfully in the United States." Id. at 108, 509 S.E.2d at 293. The Court concluded that Granados was not lawfully in the service of the employer under a valid or enforceable contract for hire and, thus, was not an "employee" as defined by Code Sec. 65.2-101. Accordingly, the Court held that Granados was "not eligible to receive compensation benefits as an 'employee' under the Act because his purported contract of hire was void and unenforceable." Id. at 108-09, 509 S.E.2d at 293.  Under current United States immigration law, two situations exist in which claimant might claim that he lawfully resides in the United States and, thus, is an "employee" under the Act. First, 8 U.S.C. Sec. 1430(a) provides that an alien may become a naturalized citizen by marriage to an American citizen, and second, based on the provisions of 8 U.S.C. Sec. 1255, the alien qualifies as a "permanent resident" and is not, therefore, an "unauthorized alien." See 8 U.S.C. Secs. 1430(a), 1255 (1994 & Supp. 1998). Assuming Granados does not apply because claimant's employment contract became retroactively valid and enforceable after he became a naturalized citizen by virtue of Sec.1430(a) or because he became "an alien lawfully admitted for permanent residence" by virtue of Sec.1255, claimant has failed to prove that he satisfied the requirements of either statute to be a citizen or an alien lawfully admitted for permanent residence.
Note: the concurring opinion points out that the legislature, in response to the Granados decision,  amended the definition of an "employee" for purposes of the Workers' Compensation Act. The Code now defines an employee as "[e]very person, including aliens . . ., in the service of another under any contract of hire . . ., written or implied, whether lawfully or unlawfully employed . . . ." Code Sec. 65.2-101. Clearly, by its action, the legislature declared its intent to bring aliens, even those working illegally, under the Workers' Compensation Act. The concurring opinion also notes that there may be a basis for revisiting the Granados decision because "When amendments are enacted soon after controversies arise 'as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act . . . .'" Boyd v. Commonwealth, 216 Va. 16, 20-21, 215 S.E.2d 915, 918 (1975) (citation omitted). 
    The deputy commissioner did not err by admitting INS evidence. The Supreme Court and this Court have repeatedly recognized that hearsay evidence is admissible in workers' compensation proceedings. See Transfer v. Dicks, 229 Va. 548, 555, 331 S.E.2d 449, 453 (1985) (recognizing that commission is not governed by common law rules of evidence); Williams v. Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958); Derby v. Swift & Co., 188 Va. 336, 341, 49 S.E.2d 417, 419 (1948); CLC Constr., Inc. v. Lopez, 20 Va. App. 258, 263 n.1, 456 S.E.2d 155, 157 n.1 (1995); Cox v. Oakwood Mining, Inc., 16 Va. App. 965, 969, 434 S.E.2d 904, 907 (1993) (recognizing that commission's rules permit hearsay evidence); see also Rule 2.2, Rules of the Virginia Workers' Compensation Commission. "[R]igid or technical rules of pleading, evidence, or practice in the conduct of hearings shall not apply so long as the procedures adopted protect the substantial rights of the parties." Sergio's Pizza v. Soncini, 1 Va. App. 370, 376, 339 S.E.2d 204, 207 (1986) (citations omitted). The INS document was provided to claimant and his counsel in advance of the hearing. Claimant advances no claim that the document is not authentic or does not reflect the facts as to claimant's situation; in fact, claimant acknowledges that the document is accurate. The evidence was reliable, relevant, and material. The commission did not abuse its discretion by admitting the evidence. 
    The deputy commissioner did not err by refusing to recuse herself. See Deahl v. Winchester Dep't of Soc. Servs., 224 Va. 664, 672-73, 299 S.E.2d 863, 867 (1983) (stating that a trial judge's recusal decision is left to the sound discretion of the judge). Claimant argues that it was inappropriate for the deputy commissioner to have obtained the information from INS on employer's behalf and then to evaluate the evidence and decide the claim. He asserts that the deputy commissioner took an active role in obtaining critical evidence on behalf of employer, which was detrimental to him. Hearing officers for administrative agencies, unlike trial judges, customarily and routinely assist in securing and obtaining evidence in cases at the request of the parties. No evidence indicates that the deputy commissioner harbored or demonstrated bias or prejudice against claimant in obtaining information from another governmental agency, INS. The deputy commissioner obtained the information only after employer requested it and was informed by INS that the request must come from the commission. There is little difference between the deputy commissioner informally requesting the evidence from INS and directing a subpoena to INS for the documents. The deputy commissioner did not abuse her discretion by declining to recuse herself. Arturo Rios v. Ryan Inc. Central, Record No. 0804-00-2 (March 6, 2001). WP Version.

Officers of a corporation and members of the Board of Directors, paid or unpaid, are considered employees. Williams v. Warren Association for Retarded Citizens, Inc., 70 O.I.C. 22 (1991).

Partners are not employees of the partnership. Berry v. Fray Berry Construction Co., 58 O.I.C. 21 (1979).

Prisoners are not employees of the Commonwealth or the agency for which they work. Woodward v. Commonwealth of Virginia, 249 Va. 21, 452 S.E.2d 656 (1995).

Volunteers working with no promise or expectation of payment are not employees. Charlottesville Music Center v. McCray, 215 Va. 31, 205 S.E.2d 674 (1974). But see Sec. 65.2-101. "Employee" (1) (l).

Casual employees are not covered by the Act. Employment is casual when not permanent or  periodically regular, but occasional, or by chance, and not in the usual course of the employer's trade or business. Waggle v. Lang, 75 O.W.C. 33 (1996).

Persons who are themselves contractors and subcontractors are not employees. Kramer v. Kramer, 199 Va. 409, 100 S.E.2d 37 (1957).

To be an employee under the Act, a person must be hired to perform a service in the usual course of trade, business or profession of the employer.  Waggle v. Lang, 75 O.W.C. 33 (1996).

Borrowed servant / Loaned Employee. For an employee to be a loaned-employee, the borrowing employer must (1) acquire the right to control and direct the employee, and (2) the employee must indicate, whether expressly or impliedly, consent to becoming the employee of the borrowing employer. Marshall Erdman & Associates v. Loehr, 24 Va. App. 670, 677, 485 S.E.2d 145, 148 (1997); Ideal Steam Laundry v. Williams, 153 Va. 176, 180, 149 S.E. 479, 481 (1929). "A servant may be transferred from his service for one master--who may have made the express contract for employment of the servant and may pay the latter his wages and be his general master--to the service of another person other than his general master; in which case . . . the special servant must look to the special master for his indemnity, if he is injured, while the stipulated work is in progress, by dangerous conditions resulting from the special master's failure to fulfill one of those duties which the law imposes upon the master for the benefit and protection of their servants." Id. at 180-81, 149 S.E. at 481.

Employees hiring employees or helpers. The law of agency provides that "when an agent, acting within the scope of his apparent agency, enters into a contract with a third person `the principal becomes immediately a contracting party, with both rights and liabilities to the third person.'" Equitable Variable Life Ins. v. Wood, 234 Va. 535,539, 362 S.E.2d 741, 744 (1987) (quoting Restatement (Second) of Agency Sec. 8 comment d (1957)). Accordingly, Marshall Erdman maybe held liable for Loehr's injuries if Urso acted within the scope of his apparent authority. "An act is within the apparent scope of an agent's authority if, in view of the character of his actual and known duties, an ordinarily prudent person, having a reasonable knowledge of the usages of the business in which the agent is engaged, would be justified in believing that he is authorized to perform the act in question." Wright v. Shortbridge, 194 Va. 346, 353, 73 S.E.2d 360, 364-65 (1952). Marshall Erdman, et al. v. Edwin L. Loehr, et al., Record No. 2549-96-2 (May 13, 1997).

Claimant and his supervisor were employees of a roofing company. The supervisor asked claimant if he would do jobs for a different roofing contractor and claimant agreed. On these different jobs, claimant selected the crew, and the members were paid cash or by one personal check to a crew member that would then be divided among the men. The crew was paid by the job, based upon the number of "squares" of roofing installed. No taxes, social security, or health insurance premiums were deducted from the money received. The crew had its own tools, set its own hours and determined when they would go to lunch or take breaks. The men did not keep track of the hours that the crew spent at each house and there was no "boss." Claimant and his fellow workers were free to accept or reject jobs as they pleased. At most the new contractor specified the type of work to be done, and this does not equate with supervising that work. The crew's sole requirement was to complete the assigned job so that the home would pass inspection. Whether a person is an independent contractor or an employee is governed by traditional common law principles. See Hamilton Trucking v. Springer, 10 Va. App. 710, 396 S.E.2d 379 (1990). "The power or right of control is the most significant factor in determining the character of the relationship, and the most significant inquiry is whether the power or right to control the means and methods by which the result is to be accomplished has been reserved." County of Spotsylvania v. Walker, 25 Va. App. 224, 230, 487 S.E.2d 274, 276 (1997). Neither the supervisor nor the new roofing contractor exercised that degree of control over the crew that rendered them employees. Claimant was not an employee of the roofing contractor,  was not an employee of the supervisor, nor was he a statutory employee of the new roofing contractor. Jose A. Juarez v C. Woolfrey Construction, et al., Record No. 2289-98-4 (June 22,1999). WP Version.

Statutory Employees.  
    An employee of a manufacturer of motor vehicles was not the statutory fellow employee of an architect and contractors involved in a construction project at the manufacturing plant. Therefore the plaintiff worker's personal injury action against the defendants was not barred by the exclusivity provision of the Act. Code Sec. 65.2-307 reads as follows: "The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death." The exclusivity provision does not apply, however, to a common law action for an employee's injury or death against an "other party." Code Sec. 65.2-309; Stewart v. Bass Constr. Co., 223 Va. 363, 365, 288 S.E.2d 489, 490 (1982). "As a general rule, the several trades involved in construction work are not part of the business of manufacturing products for sale." Id. at 478, 384 S.E.2d at 621. "Every manufacturer must have a plant, but this fact alone does not make the work of constructing a plant a part of the trade or business of every manufacturer who engages a contractor to construct a plant." Raines v. Gould, Inc., 343 S.E.2d 655, 659 (S.C. Ct. App. 1986). In determining whether the defendant contractors and subcontractors were engaged in the trade, business, or occupation of Ford, rendering claimant a statutory employee, the contractual obligations of the parties should be considered as a whole and the construction of the body shop as a single project. The "stranger to the work" test applied in Whalen v. Dean Steel Erection Co., 229 Va. 164, 327 S.E.2d 102 (1985) and Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946) is the appropriate test for application to the present case involving a suit by an employee against various contractors and subcontractors of his employer. Under the "stranger to the work" test, in order to maintain a common law action, the defendant had to be a stranger to the trade, occupation, or business in which the plaintiff was involved.  Stout v. Onorati, 221 Va. 143, 267 S.E.2d 154 (1980); Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966); Rea, Adminstratrix v. Ford, 198 Va. 712, 96 S.E.2d 92 (1957); Sykes v. Stone & Webster Eng. Corp., 186 Va. 116, 41 S.E.2d 469 (1947)." 229 Va. at 167, 327 S.E.2d at 104 (quoting Stewart v. Bass, 223 Va. at 365, 288 S.E.2d at 490) (employee of pulp manufacturer, injured by a crane while removing for repair an aerator used in manufacturing process, barred under the "stranger to the work" test from maintaining personal injury action against owner of crane who regularly assisted manufacturer in removal of aerators). See also Williams v. E. T. Gresham Co., 201 Va. 457, 111 S.E.2d 498 (1959) (employee of ferry district injured while repairing dock facilities barred from maintaining personal injury action against owner of pile driving equipment regularly engaged to assist in such work). In the present case, "the work in which [claimant's] employer was engaged" was Ford's "particular business" of manufacturing and selling motor vehicles. The defendants were strangers to that business. Therefore, the Act does not bar claimant's common law action for personal injuries against the defendants. 
    The "normal work" test is inapplicable when an employee of a general contractor makes a personal injury claim against a subcontractor. However,  the same result is reached even if the "normal work" test is applied.  Although Ford engaged in a protracted period of intensive planning for the construction project and exercised a degree of supervision in the course of construction, this is not atypical conduct for an owner, especially one engaged in an undertaking of the scope and size of the  Body Shop Project. And it is not unusual for an owner to make changes as a project progresses, as Ford did here when it "recommended" a relocation of the outside inductive loop. Nor do we think it is of significance that Ford itself corrected the location of the interior inductive loop after claimant was injured. This action may have been prompted by Ford's concern for the safety of its employees and its unwillingness to trust the correction to others. With respect to design work, it is true that Ford previously used its own personnel to do the design work for construction projects and still does on "smaller . . . or mid-sized projects." However, "on a major project like [the Body Shop]," Ford "use[s] the outside help such as [Gala]," which works "with Ford Motor Company exclusively." Furthermore, while Ford employs a sizeable number of skilled tradesmen on a permanent basis, the evidence shows that these tradesmen "are mainly concerned with maintenance." Although, in certain instances, they "build things as well," including vertical lift doors similar to the one that caused claimant's injury, it is significant that "plant forces" performed "no construction phase" of the  Body Shop Project. The "magnitude of the job" determines whether Ford does the work with its own employees or engages outside contractors. If the magnitude of the job is greater than Ford's employees can accomplish or if the cost of a job exceeds one million dollars, outside contractors are engaged to do the work. The renovation project in question was the type of "major work" that Ford "historically contracted out." In other words, Ford's normal work indisputably did not include in-house performance of projects of the scope and size of the Body Shop Project. While the magnitude of the project is not conclusive, it is entitled to consideration in determining whether the construction of the project was the normal work of Ford and in reaching the conclusion that it was not.
Stone v. Door-Man Manufacturing Co., Record No. 000175 (November 3, 2000). WP Version.

    The commission did not err in finding PAB was claimant's statutory employer, in finding that claimant was disabled from May 23, 1995 through August 14, 1995, as well as April 5, 2000 and continuing, and in finding appellants responsible for claimant's memory problems.
    PAB was a construction company that engaged routinely in the business of purchasing lots from a developer, doing site work, and constructing homes on these lots pursuant to a contract with a prospective buyer. In performance of one of these contracts, PAB subcontracted with Faucette's Tree Service to trim and remove tree limbs behind a home they were constructing. A provision in the particular real estate sales contract at issue specifically required PAB to trim the tree branches behind the newly constructed home. Claimant was employed by his brother who owned Faucette's Tree Service who fell from a ladder after cutting a tree limb suffering a complex scalp laceration, an occiputal fracture, a cervical spine fracture, cervical radiculopathy, and other traumas.
    Code Sec. 65.2-302 provides the following in relevant part: "A. When any person (referred to in this section as "owner") undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (referred to in this section as "subcontractor") for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any worker employed in the work any compensation under this title which he would have been liable to pay if the worker had been immediately employed by him. B. When any person (referred to in this section as "contractor") contracts to perform or execute any work for another person which work or undertaking is not a part of the trade, business or occupation of such other person and contracts with any other person (referred to in this section as "subcontractor") for the execution or performance by or under the subcontractor of the whole or any part of the work undertaken by such contractor, then the contractor shall be liable to pay to any worker employed in the work any compensation under this title which he would have been liable to pay if that worker had been immediately employed by him." 
    The Virginia Supreme Court has stated: "[T]he test is not one of whether the subcontractor's activity is useful, necessary, or even absolutely indispensable to the statutory employer's business, since, after all, this could be said of practically any repair, construction or transportation service. The test (except in cases where the work is obviously a subcontracted fraction of a main contract) is whether this indispensable activity is, in that business, normally carried on through employees rather than independent contractors." Cinnamon v. International Business Machines Corp., 238 Va. 471, 475-76, 384 S.E.2d 618, 620 (1989) (quoting Shell Oil Co. v. Leftwich, 212 Va. 715, 722, 187 S.E.2d 162, 167 (1972)). 
    In Cinnamon, the Court further extended this holding, finding that the Shell Oil test consists of two prongs. One, the so-called "normal-work test", relates to the determination of statutory-employer status as defined in Code [Sec. 65.2-302(A) and (C)]. As the language of [that section] makes clear, that prong relates to an owner who engages an independent contractor to perform certain work.  If the work out of which the industrial accident arose is, in the language of Shell Oil, work "normally carried on through [the owner's] employees rather than independent contractors", it is, in the language of the statute, a "part of [the owner's] trade, business or occupation".  In such case, the owner is the statutory employer of the injured worker, whether directly employed by the independent contractor or by a subcontractor. 
    The other prong, an exception to the first and sometimes labeled the "subcontracted-fraction test", relates to the determination of statutory-employer status as defined in [Code Sec. 65.2-302(B) and (C)]. In the context of the construction business, it relates to a general contractor, the party obligated by the main contract with the owner to complete the whole project. If the work out of which the accident arose was, in the language of Shell Oil, "obviously a subcontracted fraction of [that] contract" and, in the language of the statute, "not a part of the trade, business or occupation of" the owner, the general contractor who engaged the subcontractor to perform that fraction is the statutory employer of the injured worker, whether directly employed by the primary subcontractor or by a secondary subcontractor. Id. at 476, 384 S.E.2d at 620. 
    Here, in applying Code Sec. 65.2-302(B), the commission did not err in finding Faucette failed to prove that tree removal and landscaping were part of PAB's trade or business. However, because PAB subcontracted with Faucette's Tree Service in performance of a real estate sales contract contemplating the ultimate sale of the property to the buyers,  PAB is liable as Faucette's statutory employer.  
    Here, PAB, although the "owner" of the home and property, contracted with the buyer to complete construction of the home and development of the lot, and then to deliver the property to the buyer. In performance of that contract, PAB subcontracted a fraction of the required work - trimming the trees - to Faucette's Tree Service. Under the clear language of Code Sec. 65.2-302(B), in a situation where a general contractor contracts to execute work for "another person," which is not a part of that "other person['s]" trade, business or occupation, and then contracts with a subcontractor to perform the whole or any part of the work required under the contract, the contractor is liable as the statutory employer of the subcontractor's employees for purposes of the code section. Thus, under these facts and circumstances, PAB was the statutory employer of Faucette. The tree removal was clearly a subcontracted-fraction of the main sales contract. Further, no evidence was presented to indicate that home construction and/or lot development was part of the trade, business or occupation of the "other person" here - the home buyer. Thus, PAB falls squarely within the definition of the statutory employer of Faucette, pursuant to Code Sec. 65.2-302(B). Accordingly, the decision of the commission on this issue is affirmed.
    Claimant had been deemed "disabled" by the Social Security Administration due to his pre-existing diabetes, liver problems and other related conditions. Claimant was receiving benefits for his disability at the time of the accident.  Nonetheless, claimant had been employed by his brother on a consistent basis prior to the date of the accident.  Dr. Reid diagnosed claimant with memory loss, chronic pain syndrome, and C8 radiculopathy secondary to the 1995 accident. He opined that claimant was "permanently and totally disabled from gainful employment," due to the chronic pain syndrome and claimant's inability to walk or change positions without aggravating the "chronic pain syndrome, the memory loss, and the severe de-conditioning and specifically triceps atrophy." Dr. Reid confirmed that the 1995 accident caused claimant's disability, notwithstanding his extensive medical history, reasoning that persons with "his diabetes and level of peripheral neuropathy who are without other injury or illness are known to be able to function satisfactorily in the workplace. "The evidence here supports the commission's determination on the issues of employer's liability for claimant's memory problems and periods of disability. Princess Anne Builders, Inc. v. Faucette, Record No. 0872-01-1 (November 6, 2001). WP Version.

An action for personal injuries by an employee of Sears, a retail furniture business, who fell on a wet floor was barred. The employee was the statutory fellow employee of a firm that regularly provided janitorial services at the store. The defendant cleaning service was not a stranger to the statutory employer's business. The issue is whether the defendant was an "other party" under Code Sec. 65.2-309 and, hence, a stranger to Sears' "particular business" of selling furniture. Stone v. Door-Man Manufacturing Co., Record No. 000175 (November 3, 2000). WP Version; Feitig v. Chalkley, 185 Va. 96, 102, 38 S.E.2d 73, 75 (1946). In resolving that issue, a key consideration is whether, in providing cleaning and janitorial services to Sears, International was "performing an essential part" of Sears' furniture business. Whalen v. Dean Steel Erection Co., 229 Va. 164, 169, 327 S.E.2d 102, 105 (1985). Both the defendant and Sears were involved in cleaning Sears' premises. The combined efforts of the defendant and Sears were designed to accomplish Sears' goal of making its store clean, attractive, and safe - a goal necessary to the successful operation of Sears' furniture business. And, by its participation in those efforts, the defendant was "performing an essential part" of Sears' business. Whalen, 229 Va. at 169, 327 S.E.2d at 105. Hence, International was not a stranger to Sears' business. Fowler v. International Cleaning Service, Record No. 000177 (November 3, 2000). WP Version.

Statutory Employees. The purpose of Code Sec. 65.2-302 is to "'protect the employees of subcontractors who are not financially responsible and to prevent employers from relieving themselves of liability (for compensation) by doing through independent contractors what they would otherwise do through direct employees.'" Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897, 902, 224 S.E.2d 323, 326 (1976) (quoting Sears, Roebuck & Co. v. Wallace, 172 F.2d 802, 810 (4th Cir. 1949)). "'The issue whether a person is a statutory employee presents a mixed question of law and fact . . . .'" Cinnamon v. International Business Machines Corp., 238 Va. 471, 474, 384 S.E.2d 618, 619 (1989) (quoting Cooke v. Skyline Swannanoa, Inc., 226 Va. 154, 156, 307 S.E.2d 246, 247 (1983)). The Supreme Court of Virginia has used the analysis set forth in Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162 (1972), in determining statutory employer status: "[T]he test is not one of whether the subcontractor's activity is useful, necessary, or even absolutely indispensable to the statutory employer's business, since, after all, this could be said of practically any repair, construction or transportation service. The test (except in cases where the work is obviously a subcontracted fraction of a main contract) is whether this indispensable activity is, in that business, normally carried on through employees rather than independent contractors." Cinnamon, 238 Va. at 475, 384 S.E.2d at 620 (quoting Shell Oil, 212 Va. at 722, 187 S.E.2d at 167). In Cinnamon, the Supreme Court discussed the two prongs of the Shell Oil test--the "normal-work test" and the "subcontracted-fraction test." 238 Va. at 476, 384 S.E.2d at 620. The Supreme Court explained that the normal-work prong is used in determining statutory employer status under Code Sec. 65.2-302(A) (former Code Sec. 65.1-29) and "relates to an owner who engages an independent contractor to perform certain work." Id. The Supreme Court also explained that the subcontracted-fraction test is used to analyze statutory employer status under Code Sec. 65.2-302(B) (former Code Sec. 65.1-30) and defined the test as follows: In the context of the construction business, [the subcontracted-fraction prong] relates to a general contractor, the party obligated by the main contract with the owner to complete the whole project. If the work out of which the accident arose was, in the language of Shell Oil, "obviously a subcontracted fraction of [that] contract" and, in the language of the statute, "not a part of the trade, business or occupation of" the owner, the general contractor who engaged the subcontractor to perform that fraction is the statutory employer of the injured worker, whether directly employed by the primary subcontractor or by a secondary subcontractor. Id. "The subcontractor similarly becomes the statutory employer of a sub-subcontractor's employees. Thus, employees of an uninsured sub-subcontractor may look to the subcontractor, and to the general contractor, for coverage, although recovery is not permitted from both." States Roofing Corp. v. Bush Constr. Corp., 15 Va. App. 613, 616-17, 426 S.E.2d 124, 126 (1993).

A "[mere] relationship of reciprocal gratuity, . . . involving no specific employment obligations, . . . and no right of control over the performance of claimant's work," fails to establish employment. Behrensen v. Whitaker, 10 Va. App. 364, 367, 392 S.E.2d 508, 510 (1990). The commission did not err in finding that on the day of claimant's injury he was employed by KRW Trucking, not by North and South Lines, Inc. Claimant was the sole owner and an employee of KRW Trucking. Separate from his status as owner of KRW Trucking, claimant was also employed by North and South as a dispatcher. On the date of the accident, however, claimant had obtained vacation leave from North and South and was working on a truck KRW Trucking had agreed to purchase from North and South, when he fell and injured his shoulder. North and South did not ever employ claimant as a mechanic and did not pay him for the work he performed on the truck. The commission did not err in finding that claimant was not a statutory employee of North and South. Code Sec. 65.2-302 provides as follows: When any person (referred to in this section as "owner") undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (referred to in this section as "subcontractor") for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any worker employed in the work any compensation under this title which he would have been liable to pay if the worker had been immediately employed by him. As the Supreme Court held in Intermodal Services, Inc. v. Smith, 234 Va. 596, 364 S.E.2d 221 (1988), the purpose of this statute is to insure compensation coverage for employees of independent contractors and subcontractors, but "not the subcontractor himself." Id. at 603, 364 S.E.2d at 225. Thus, the commission did not err in ruling that claimant, the owner of  KRW Trucking, was not a statutory employee of North and South. The commission also did not err in holding that claimant's employments with KRW Trucking and North and South Lines were dissimilar for purposes of calculating his average weekly wage. "[T]he [dissimilar employment] rule is alive and well in workers' compensation law." Uninsured Employer's Fund v. Thrush, 255 Va. 14, 21, 496 S.E.2d 57, 60 (1998). In determining whether two jobs are "substantially similar," we look to the following: (1) "the duties and skills" of each job, and (2) "the primary mission" of the employee on each job. [Frederick Fire and Rescue v. ]Dodson, 20 Va. App. [440,] 444-45, 457 S.E.2d [783,] 785 [(1995)]. "In every situation where the commission is asked to determine whether two or more jobs are substantially similar, the commission must consider not only the particular duties of each job, but also the general nature or type of employment of the two jobs." Mercy Tidewater Ambulance v. Carpenter, 29 Va. App. 218, 224, 511 S.E.2d 418, 421 (1999) (quoting Creedle Sales Co. v. Edmonds, 24 Va. App. 24, 28, 480 S.E.2d 123, 125 (1997)). Credible evidence in the record supports the commission's findings "that the only common skill [claimant employed for both TRW Trucking and North and South] was that of driving, . . . that [this common skill] was performed only infrequently for North and South . . . [, and that] the other skills did not overlap in the two employments." Claimant's primary employment with North and South was dispatching the trucks to and from various destinations in service of North and South's customers. His employment with KRW Trucking did not include that function. Thus, his duties with both entities were so unrelated that we cannot say the commission erred in concluding they were not substantially similar. Kenneth R. Wood v. Kenneth R. Wood, Sole Prop., Record No. 0470-99-3 (December 7, 1999). WP Version.

Statutory Employers. Deciding what constitutes the "trade, business or occupation" of an entity is a mixed question of law and fact. Henderson v. Central Tel. Co., 233 Va. 377, 382, 355 S.E.2d 596,599 (1987). Code Sec. 65.2-302 imposes upon a subcontractor who sub-subcontracts work liability for any compensation which the subcontractor would have been liable to pay had an injured worker been employed directly by the subcontractor. See Sykes v. Stone & Webster Eng'g Corp., 186 Va. 116, 121-22, 41 S.E.2d 469, 471-72 (1947). However, that liability is predicated upon a determination that the sub-subcontractor was engaged in the "trade, business or occupation" of the subcontractor. Code Sec. 65.2-302. Liability under Code Sec. 65.2-302 depends also upon a showing that the subcontractor was in privity with the sub-subcontractor who employed the claimant. States Roofing Corp. v. Bush Constr. Corp., 15 Va. App. 613, 616-17, 426 S.E.2d 124, 126 (1993). Code Sec. 65.2-302(A)(1) does not provide workers' compensation benefits to independent contractors. Independent contractors are not employees under the Act. Rather, Code Sec. 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 apart of the owner's trade, business, or occupation. A subcontractor does not come under the Act as entitled to compensation. Intermodal Servs., Inc. v. Smith, 234 Va. 596, 364 S.E.2d 221 (1988). A statutory employer has a right of indemnity against the immediate employer. Race Fork Coal Co. v. Turner, 5 Va. App. 350, 363 S.E.2d 423 (1987), rev'd on other grounds, 237 Va. 639, 379 S.E.2d 341 (1989).

Statutory Employer. The Workers' Compensation Commission (commission) did not err in finding that Hilltop  was not the statutory employer of claimant, pursuant to either Code Sec. 65.2-302(A) or Code Sec. 65.2-302(B). Under a Timber Sale Agreement, Hilltop only acquired the right for a period of time to harvest timber on landowner's land. Hilltop owned a sawmill but was not obligated to the landowner to cut timber from the landowner's property. Hilltop then entered into a Logging Contract and Agreement with Angus wherein Angus agreed to "harvest all standing timber" on the landowner's property. Claimant, an employee of Angus, suffered an injury by accident arising out of and in the course of his employment, when he was pinned under a skidder during logging operations on the landowner's property. The commission found that claimant was an employee of Angus, who was uninsured for workers' compensation. The commission did not err in ruling that Hilltop was not claimant's statutory employer. In Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162 (1972), the Supreme Court set forth the test to use in determining whether claimant was engaged in Hilltop's trade, business, or occupation: "[T]he test is not one of whether the subcontractor's activity is useful, necessary, or even absolutely indispensable to the statutory employer's business, since, after all, this could be said of practically any repair, construction or transportation service. The test (except in cases where the work is obviously a subcontracted fraction of a main contract) is whether this indispensable activity is, in the business, normally carried on through employees rather than independent contractors." Id. at 722, 187 S.E.2d at 167 (citation omitted) (emphasis added). Here, credible evidence proved that Hilltop did not have any employees who normally carried out the type of work which caused claimant's injury, i.e., the cutting and harvesting of standing timber. This work, although necessary to Hilltop's business, was done by independent contractors, such as Angus. Therefore, the commission did not err in finding that Angus' activity was not part of Hilltop's trade, business, or occupation and that Hilltop was not claimant's statutory employer pursuant to Code Sec. 65.2-302(A).  In F. Richard Wilton, Jr., Inc. v. Gibson, 22 Va. App. 606, 471 S.E.2d 832 (1996), the court discussed the subcontracted-fraction test and the method to be used to analyze statutory employer status under Code Sec. 65.2-302(B) as follows: "In the context of the construction business, [the subcontracted-fraction prong] relates to a general contractor, the party obligated by the main contract with the owner to complete the whole project. If the work out of which the accident arose was, in the language of Shell Oil, 'obviously a subcontracted fraction of [that] contract' and, in the language of the statute, 'not a part of the trade, business or occupation of' the owner, the general contractor who engaged the subcontractor to perform that fraction is the statutory employer of the injured worker, whether directly employed by the primary subcontractor or by a secondary subcontractor." Id. at 610, 471 S.E.2d at 834-35 (quoting Cinnamon, 238 Va. at 476, 384 S.E.2d at 620). Hilltop was not obligated to the landowner to cut timber from the landowner's property. Thus, because the work out of which the accident arose was not an "obviously subcontracted fraction" of the Timber Sale Agreement, the commission did not err in finding that Hilltop was not claimant's statutory employer pursuant to Code Sec. 65.2-302(B). Uninsured Employer's Fund v. Hilltop Lumber Co., Record No. 0008-00-3 (June 20, 2000). WP Version.

    Linkhorn Bay Associates, L.L.C. (Linkhorn Bay) was the owner of a project known as Linkhorn Bay Condominiums in the City of Virginia Beach. Linkhorn Bay had no employees, and subcontracted all the work to various subcontractors. One such contract was an oral contract with Virginia Natural Gas (the gas company), in which the gas company agreed to dig, install, and test natural gas lines, and to connect them to the condominium buildings on the site at no charge to Linkhorn Bay, in return for Linkhorn Bay's agreement to install appliances using natural gas in the planned condominium units. The gas company subcontracted its contractual obligation to Krauss Construction Company of Virginia, Inc. (Krauss).  Linkhorn Bay executed another contact with Pfeifer's common-law employer, Tidewater Applicators, Inc. (Tidewater), in which Tidewater was to "complete 'Exterior Finish System for construction' of the Project."  While Krauss' employees were testing the gas line, a plastic gas cap blew off the line, striking and injuring Pfeifer, who was working on the job.
    Pfeifer filed a personal injury action against Krauss.  Krauss filed a plea in bar in which it maintained that the court had no jurisdiction to adjudicate Pfeifer's common-law claim because Krauss was Pfeifer's co-employee under the terms of the Act, and therefore his exclusive remedy was under Code Sec. 65.2-300.  Pfeifer denied that Krauss was his statutory co-employee and asserted that the exclusive remedy provision of the Act was inapplicable.  After hearing argument, the trial court sustained Krauss' plea.
     Even though a third party subcontractor like Krauss may not have a common-law employer-employee relationship with injured workers like Pfeifer, their respective rights and obligations may be affected. The purpose of Code Sec. 65.2-302 is to bring within the operation of the Act all persons engaged in work that is a part of the trade, business, or occupation of the party who undertakes as owner or who contracts as contractor to perform the work, and to make liable to every employee engaged in the work every such owner contractor, or subcontractor above such employee. Smith v. Horn, 232 Va. 302, 305, 351 S.E.2d 14, 16 (1986). If the injured worker has a remedy against his statutory employer, that remedy is exclusive under Code Sec. 65.2-307, and the worker has no right to bring a common-law action against any such statutory employer. See Smith, 232 Va. at 306-07, 351 S.E.2d at 16; Anderson v. Thorington Construction Company, Inc., 201 Va. 266, 272, 110 S.E.2d 396, 400-01 (1959), appeal dismissed, 363 U.S. 719 (1960).  If a particular subcontractor and an injured employee's common law or statutory employer are both working on the same project and are also engaged in the owner's or general contractor's work, that particular subcontractor, as a statutory co-employee of the injured worker, is also entitled to the common law immunity provided by the exclusivity provision. Evans v. Hook, 239 Va. 127, 131, 387 S.E.2d 777, 779 (1990). Because Krauss contends that it and Tidewater were both subcontractors under Linkhorn Bay, Krauss asserts the immunity of a statutory co-employee here.
    On the other hand, if a subcontractor like Krauss had been engaged in work that was not a part of the trade, business, or occupation of the injured party's common law or statutory employer, as Pfeifer asserts, that subcontractor would be "another party" or a "stranger to the employment," and not a statutory co-employee under the provisions of Code Sec. 65.2-302. Therefore, Krauss would be subject to a common-law action by the injured worker. Evans v. Hook, 239 Va. at 130-31, 387 S.E.2d at 778. Hence, the dispositive issue framed by the parties in this case is whether Krauss' installation of the gas line was a part of the trade, business, or occupation of Linkhorn Bay, making Krauss Pfeifer's statutory co-employee.
    The gas company was a not a mere supplier of materials to the job. Burroughs v. Walmont, Inc., 210 Va. 98, 168 S.E.2d 107 (1969). In Burroughs, a worker for a sheetrock supplier was injured on a construction job and was permitted to maintain a tort claim against the general contractor. The contract between the supplier and the general contractor required the worker to deliver and stack in each room sufficient quantities of sheetrock to construct the walls in that room. Noting prior cases in which we held that "persons who function solely as suppliers and deliverers of goods" were not within the scope of the Act, we concluded that this was the final act of delivery and not an act of construction. Id. at 100, 168 S.E.2d at 108. Because the injured employee's employer was not engaged in the construction process, the injured employee was permitted to maintain a common-law action against the general contractor. Id.
    The facts in this case indicate more than a mere sale and final act of delivery. Before the gas company could deliver the natural gas, its oral contract with Linkhorn Bay required it to dig the ditches, install the gas lines, connect them to the condominium buildings, and test them. Those contractual obligations were subcontracted to Krauss and, as it dug the ditches, installed the gas lines, connected them to the condominium buildings and tested them, Krauss was engaged in a part of the construction process. Thus, the circumstances in this case are more like those in the case of Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966). In Bosher, an employee of a material supplier was spreading sand as contractually required and as directed on the job by the general contractor when his truck struck and injured an employee of the general contractor. The injured employee sued the material supplier at common law claiming that it was a mere supplier of materials and not his statutory employer. Because spreading the sand was a part of the construction process, we held that the truck driver was engaged in the construction process and applied the exclusive remedy provision of the Act, dismissing the tort claim. We conclude that digging the necessary trenches, installing the gas lines, connecting them to the buildings, and testing them was more than a simple supply and delivery of materials.
    Krauss was not a stranger to the work of Linkhorn Bay, but was performing an essential part of that work.  Linkhorn Bay had been formed solely to build and develop these condominiums. Unlike the manufacturer in Stone v. Door- Man Manufacturing Co., 260 Va. 406, 417-19, 537 S.E.2d 305, 310-12 (2000), Linkhorn Bay had no other function, and the installation of the gas lines was part of Linkhorn Bay's construction project covered by the terms of Linkhorn Bay's oral contract with the gas company. Thus, Krauss was not a stranger to Linkhorn Bay's business.
    Krauss was doing work that was a part of Linkhorn Bay's construction of the condominium project and, therefore, a part of Linkhorn Bay's trade, business, or occupation.  Hence, Krauss was Pfeifer's statutory co-employee and the trial court correctly held he had no common-law remedy against Krauss. Pfeifer v. Krauss Construction Co., Record No. 001615 (June 8, 2001).  WP Version.

An employee of a subcontractor must give the required notice to a statutory employer to hold the statutory employer liable under the Act. If the employee can show he did not know of the relationship between his immediate employer and some third party who was his statutory employer at the time of the accident and could not reasonably have known of the relationship in the 30 day period, the employee may introduce such evidence to show there was a reasonable excuse for not giving notice. Race Fork Coal Co. v. Turner, 237 Va. 639, 379 S.E.2d 341 (1989). Note that § 65.2-600 Notice of accident, provides in part:

A. Every injured employee or his representative shall immediately on the occurrence of an accident or as soon thereafter as practicable, give or cause to be given to the employer a written notice of the accident. If notice of accident is not given to any statutory employer, such statutory employer may be held responsible for initial and additional awards of compensation rendered by the Commission if (i) he shall have had at least sixty days' notice of the hearing to ascertain compensability of the accident, and (ii) the statutory employer was not prejudiced by lack of notice of the accident.

Death Presumption. Where an employee is found dead as the result of an accident at his place of work or near by, where his duties may have called him during the hours of his work, and there is no evidence offered to show what caused the death or to show that he was not engaged in his master's business at the time, the court will indulge the presumption that the relation of master and servant existed at the time of the accident, and that it arose out of and in the course of his employment. Sullivan v. Suffolk Peanut Co., 171 Va. 439, 444, 199 S.E. 504, 506 (1938). However, the death presumption applies only if there is an absence of evidence contrary to the conclusion that the death arose out of the employment. See Hopson v. Hungerford Coal Co., Inc., 187 Va. 299, 305, 46 S.E.2d 392, 394 (1948).

"'Employee' means . . . [e]very person . . . in the service of another under any contract of hire or apprenticeship, written or implied, except . . . one whose employment is not in the usual course of the trade, business, occupation or profession of the employer." Both full-time and part-time employees who are regularly employed to carry out the trade or business of the employer must be counted in determining the number of employees "regularly in service" to the employer. "Any person hired by the employer to work in the usual course of the employer's business is an 'employee' under the Act regardless of how often or for how long he may be employed." The number of employees regularly in service of the employer is the number "used to carry out the established mode of performing the work of the business . . . even though the work may be recurrent instead of constant." Smith v. Hylton, 14 Va. App. 354, 356, 416 S.E.2d 712, 714 (1992) (citations omitted). "[O]nce an employee proves that his or her injury occurred while employed in Virginia, an employer has the burden of producing sufficient evidence upon which the commission can find that the employer employed less than three employees regularly in service in Virginia." Craddock Moving & Storage Co. v. Settles, 16 Va. App. 1, 2, 427 S.E.2d 428, 429 (1993), aff'd per curiam, 247 Va. 165, 440 S.E.2d 613 (1994). At various times during the year preceding claimant's injury by accident, employer "'used [three or more employees] to carry out the established mode of performing the work of the business . . . even though the work [might have been] recurrent instead of constant.'" Smith, 14 Va. App. at 386, 416 S.E.2d at 714. Mr. [Jeffrey D. Stewart] was clearly an employee of the corporation by virtue of his status as an officer. The majority of work performed by the business was done by him with the assistance of at least two people. These employees were listed on quarterly reports. Moreover, there were other employees named by him that were not reflected on these reports, specifically, the claimant and Mr. [Crews]. At the time of the claimant's accident, it was anticipated that the claimant, Mr. [Stewart] and Chris [Stewart] would continue to perform similar services for the remainder of the summer break. The direct evidence and inferences drawn from that evidence support the commission's finding that employer regularly employed three or more persons and was, therefore, subject to the commission's jurisdiction. Accordingly, we find as a matter of law that employer failed to sustain its burden of proof. Uninsured Employer's Fund v. Derek M. Kramer, Record No. 0991-99-4 (March 28, 2000). WP Version.

In the absence of an order from the commission or specific interrogatory from the employer or insurer under Commission Rules 1.11 or 1.8 respectively, the Act does not require a claimant to specify the portion of Code Sec. 65.2-101 under which he claims coverage as an "employee." "[W]hether a person is an employee or independent contractor 'is governed not by any express provision of the [workers'] compensation law, but by the common-law.'" Richmond Newspapers v. Gill, 224 Va. 92, 97, 294 S.E.2d 840, 843 (1982) (quoting Hann v. Times-Dispatch Pub. Co., 166 Va. 102, 105, 184 S.E. 183, 184 (1936)). "[F]our elements . . . are considered: (1) Selection and engagement of the servant; (2) payment of wages; (3) power of dismissal; and (4) the power of control of the servant's action." Crowder v. Haymaker, 164 Va. 77, 79, 178 S.E. 803, 804 (1935). The power of control which is determinative is the power to control not only the result to be obtained but also "the means and methods by which the result is to be accomplished." Gill, 224 Va. at 98, 294 S.E.2d at 843. If the alleged employee "is free to adopt such means and methods as he chooses to accomplish the result, he is not an employee but an independent contractor." Virginia Employment Comm'n v. A.I.M. Corp., 225 Va. 338, 347, 302 S.E.2d 534, 540 (1983). "The extent of the reserved right of control," the critical factor in assessing employee status, "may be determined by examining the performance of the parties." Intermodal Servs., Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d 221, 224 (1988). Where the record fails to establish that the employer had any right to dictate how claimant would accomplish the desired result, claimant has failed to meet his burden of proof. See Stover v. Ratliff, 221 Va. 509, 512, 272 S.E.2d 40, 42 (1980). In this case the evidence as a whole establishes indicia of a retained power of control sufficient to compel the conclusion that claimant was an employee as a matter of law, although the company for which claimant worked was owned by claimant's wife.  Claimant had no employment contract, placing him in the legal status of an at-will employee who could be fired at any time for any reason or no reason. See Gill, 224 Va. at 100, 294 S.E.2d at 844. Claimant was paid wages for his work. TNT withheld taxes from these wages, paid claimant's workers' compensation premiums and union dues, and issued claimant a W-2 Form for each tax year. Additionally, TNT retained control over the means by which the result would be achieved. Unlike the independent contractor in Gill, who purchased and delivered newspapers to customers in whatever manner he saw fit, see 224 Va. at 99, 294 S.E.2d at 844, TNT provided claimant with a vehicle in which to perform his work, and TNT, not claimant, insured the vehicle. Unlike Gill, who bought his own supplies, see 224 Va. at 101, 294 S.E.2d at 845, claimant purchased supplies in the name of TNT, and the supplies were charged to TNT's account. Claimant's wife included the cost of these supplies on the Schedule C Statement of Profit and Loss for the company, which she filed with her income taxes each year. TNT, via owner claimant's wife, received payment for all work done by claimant on TNT's behalf, and unlike Gill, 224 Va. at 99, 294 S.E.2d at 844, the record contains no evidence that claimant bore any risk of loss from a customer's non-payment. Finally, claimant testified that when he worked for another company, he gave the payment he received to his wife for deposit in the TNT company account. Although claimant's wife may have been unfamiliar with the finer details of insulation work, the above evidence belies the commission's conclusion that she had no power of control over the means by which the result sought by the company was to be accomplished. Her mere inability to exercise certain aspects of her power based on lack of knowledge is insufficient to rebut the indicia of retained power demonstrated by the factors outlined above. Robert Lee Thacker v. TNT Insulations Co., Record No. 3111-99-4 (July 11, 2000). WP Version.

    Plaintiff-appellant was a statutory employee of the defendant-appellee when she was injured.  The circuit court's judgment sustaining the defendant's plea in bar based on the exclusivity provision of the Virginia Workers' Compensation Act, Code Sec. 65.2-307(A).
        Louise V. Burch was employed as a sales representative by Greenhost, Inc.(Greenhost). Greenhost grew plants and flowers and sold them on a wholesale basis to various retailers, including Hechinger Company (Hechinger).  In the spring of 1997, Burch negotiated an order for Greenhost flowers to be sold at a Hechinger store in Springfield during a "truckload sale" advertised to take place over a Friday, Saturday and Sunday in May.  Burch agreed to be present during part of the truckload sale to assist in displaying the flowers and to answer horticultural questions for Hechinger retail customers.
    A problem arose when one of the trailers of flowers arrived at the Springfield Hechinger store a day earlier than anticipated and Hechinger did not have staff available to unload the flowers and arrange the display that day.  If the plants remained inside the trailer all day, the heat would cause them to wilt and die and Burch "would have to go up there and write a return."  Therefore, at the request
of her supervisor, Burch went to the Hechinger store the day before the sale was scheduled to begin.  She assisted in arranging the display of flowers as they were unloaded from the trailer and answered questions of Hechinger customers.  A Hechinger employee unloaded carts from the trailer while the customers waited.  At this point, one of the carts filled with potted flowers rolled off of the trailer's tailgate, falling onto Burch and injuring her.
    The sole issue in this appeal is whether the trial court was correct in designating Burch as a statutory employee of Hechinger at the time of her injury.  If so, then her negligence action seeking damages from Hechinger is barred by Code Sec. 65.2-307(A).
    With regard to when an individual may be properly considered a statutory employee, the Sec. 65.2-302(A) of the Act provides: When any person (referred to in this section as "owner") undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (referred to in this section as "subcontractor") for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any worker employed in the work any compensation under this title which he would have been liable to pay if the worker had been immediately employed by him.
    "The issue whether a particular person or entity is the statutory employer of an injured employee is a jurisdictional matter presenting a mixed question of law
and fact that must be determined under the facts of each case."  Bosley v. Shepherd, 262 Va. 641, 648, 554 S.E.2d 77, 81 (2001).  If the facts establish that an individual performs activities that are normally performed by a person's employees rather than by independent contractors, then that individual is properly considered that person's statutory employee for purposes of the Act.  Shell Oil Co. v. Leftwich, 212 Va. 715, 722, 187 S.E.2d 162, 167 (1972).  See also Carmody v. F. W. Woolworth Co., 234 Va. 198, 205-06, 361 S.E.2d 128, 132-33 (1987) (licensee portrait photography business inside Woolworth store was engaged in work that Woolworth normally conducted through its employees; thus, licensee's employee was Woolworth's statutory employee).
    In the instant case, Burch was arranging displays of flowers and, more immediately at the time of her injury, she was assisting Hechinger retail customers.  The uncontroverted testimony at the hearing on Hechinger's plea in bar established that both of these activities were normally performed by Hechinger employees.
    The Virginia Supreme Court has previously considered the point at which an individual delivering products has completed the task of delivery, and beyond which point, engaging in further activities constitutes performing the work of another entity's trade, business or occupation.  In Bosley, the court held that using a crane to deliver sheetrock to specific locations on a jobsite was part of the delivery.  262 Va. at 649-50, 554 S.E.2d at 82.  The employee so engaged was not a statutory employee of the general contractor because he did not perform any other task to further the work of the general contractor.  Id.; see also Burroughs v. Walmont, Inc., 210 Va. 98, 100, 168 S.E.2d 107, 108 (1969) (the stacking of sheetrock in several rooms constituted the final act of delivery, not the act of construction).  In contrast, we held that an individual who delivered sand to a construction site and then participated in spreading the sand to a six-inch base as required by building specifications was a statutory employee of the general contractor because he had proceeded beyond the task of delivery and engaged in the contractor's work of construction.  Bosher v. Jamerson, 207 Va. 539, 542-43, 151 S.E.2d 375, 377 (1966).
    The instant case is more like Bosher.  Although Burch contends that she was engaged in the final act of delivery, the testimony clearly reflects that Burch herself did not participate in the delivery of the flowers.  Rather, Greenhost's wholesale delivery was complete when the trailer arrived at the Springfield Hechinger store, because it was then the responsibility of Hechinger employees to unload the flowers and continue the retail merchandising process from that point forward.
    Burch was involved in discrete activities both prior to and after the delivery. Before the delivery, she represented Greenhost in negotiating the sale to Hechinger.  Once the trailer of flowers arrived at the Hechinger store, Hechinger employees were then responsible for unloading the flowers from the trailer, as well as arranging the flowers on display and assisting Hechinger retail customers.  Thus, when Burch's involvement resumed, after the delivery, her activities - that is, arranging the display of flowers and answering the questions of Hechinger retail customers - were, as previously noted, tasks that were normally performed by Hechinger employees.  That she was motivated to perform such tasks by the prospect of increased future sales does not change the fact that both activities further the retail business of Hechinger and are normally performed by Hechinger employees.
    The evidence at the hearing on Hechinger's plea in bar was sufficient to support the circuit court's finding that, by virtue of engaging in work normally performed by Hechinger employees, Burch was a statutory employee of Hechinger at the time of the accident.  Thus, her sole remedy lies in workers' compensation and her negligence action against Hechinger is barred by the exclusivity provision of the Act.  Burch v. Hechinger Company, Record No. 991490 (June 7, 2002). WP Version.

    The Workers' Compensation Commission (commission) erred in finding that Johnny Stanley (Stanley), her boyfriend of twenty-five years and the father of her child, was not an employee of Porter Cabs, Inc. (Porter) under Code Sec. 65.2-101.  The evidence established that Johnny Stanley was beaten, shot and killed during a robbery while driving a taxicab for Porter on April 25, 1999.  His killers admitted calling a taxicab for the sole purpose of robbing the driver.  After robbing Stanley of $39, they shot and killed him when he refused
to get in the trunk of his cab. 
    One who seeks benefits under the Workers' Compensation Act must show that he is an employee within the definition of Code Sec. 65.2-101.  He bears the burden of proving his entitlement.  The elements of an employment relationship are:  (1) selection and engagement of the employee, (2) payment of wages, (3) power of dismissal, and (4) power of control of the employee's action.  The most important of these is the element of control.  Behrensen v. Whitaker, 10 Va. App. 364, 366, 392 S.E.2d 508, 509 (1990). Stover v. Ratliff, 221 Va. 509, 511-12, 272 S.E.2d 40, 42 (1980).  "Thus, [o]ne is an employee of another if the person for whom he or she works has the power to direct the means and methods by which the work is done."  Mount Vernon Builders, Inc. v. Rotty, 28 Va. App. 511, 514, 507 S.E.2d 95, 97 (1998) (citing Craddock Moving & Storage Co. v. Settles, 16 Va. App. 1, 4, 427 S.E.2d 428, 430 (1993), aff'd, 247 Va. 165, 440 S.E.2d 613 (1994)).  "The right of control is the determining factor in ascertaining [whether one is an employee or not]."  Intermodal Servs., Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d 221, 224 (1988). [T]he right of control over results does not distinguish an employee from an independent contractor; by definition of the relationship, a principal exercises certain control over results whether those results are accomplished by employee or independent contractor.  The relevant and determinative distinction lies in the right to control the means and methods chosen to accomplish the result. County of Spotsylvania v. Walker, 25 Va. App. 224, 230, 487 S.E.2d 274, 277 (1997). 
    Porter had the power to hire drivers for its own cabs as well as cabs affiliated with Porter but owned by others.  Each driver had to interview with Porter.  If the driver passed the interview, Porter notified the permit section of the police department that a rate card could be issued to that driver under the aegis of Porter. Porter had the power to hire drivers for its own cabs as well as cabs affiliated with Porter but owned by others.  Each driver had to interview with Porter.  If the driver passed the interview, Porter notified the permit section of the police department that a rate card could be issued to that driver under the aegis of Porter. Porter could place a driver on temporary or permanent suspension if the driver failed to comply with Porter's rules. The drivers had to accept all fares unless the driver felt he or she was in danger.  A driver could not pick up a fare without Porter's permission.  Mr. Porter testified he fired drivers for a variety of reasons. Porter had the absolute authority to hire and fire.  The commission's finding that Porter did not specify the means and methods by which Stanley drove the taxicab because dispatchers only told drivers their ultimate destination and did not specify which route to take to reach the ultimate destination is without merit.  The fact that the drivers often chose their specific routes shows nothing more than, due to the nature of the work and as a practical matter, Porter's control did not extend to dictating each turn the driver was required to make.  When considered with the other indicia of control exercised by Porter, this fact is of little significance.  The evidence showed all parties agreed that Porter interviewed and determined which potential drivers received a rate card that allowed the drivers to drive; Porter had specific rules the drivers had to follow while driving for Porter; Porter could suspend a driver temporarily or fire him or her; and Porter controlled the drivers' business by directing what fares were dispatched to each driver, preventing the drivers from picking up fares off the street without permission and not allowing drivers to refuse fares unless there were safety issues.  These facts establish the requisite exercise over the "selection and engagement" of the driver, the "power to dismiss" the driver and, most importantly, the "power of control" over the driver's actions.  The fundamental test of the employment relationship is the right of the employer to control the details of the employee's work.  It is not the actual control exercised, but whether there exists the right and authority to control and direct the particular work or undertaking, as to the manner or means of its accomplishment.  The evidence establishes that Stanley was an employee of Porter because Porter had the right to control and did control the method and means of the work Stanley performed.  Subdivision 2(d) of Sec. 65.2-101 provides an employee is not:  "Any taxicab or executive sedan driver, provided the Commission is furnished evidence that such individual is excluded from taxation by the Federal Unemployment Tax Act."  This provision was not addressed and is not before the court.  Deloris Purvis v. Porter Cabs, Inc., Record No. 3241-01-1 (August 27, 2002). WP Version.

    The Workers' Compensation Commission (commission) did not err in finding that the Huntington Blizzard ice hockey team (employer) did not have more than three employees regularly in service within the Commonwealth of Virginia as required by Code Sec. 65.2-101 and was, therefore, not subject to the Workers' Compensation Act (Act).  Employer's team offices and home ice rink were located in Huntington, West Virginia.  Employer maintained no office in Virginia, and no employees lived in Virginia.  In October, 1999, claimant signed his employment contract at the team's offices in West Virginia.  Pursuant to the terms of the contract, employer paid claimant's salary, rent for his apartment in West Virginia and utilities.  No evidence showed employer maintained workers' compensation insurance in the Commonwealth, thus the Uninsured Employer's Fund was a party to the proceeding.  Of  seventy-one regular season games, fourteen games were against Virginia teams and nine of those fourteen games were played at locations in Virginia.  The other games were played in Ohio, New Jersey, West Virginia, Illinois, Florida, Arkansas, and North Carolina.  All three playoff games were played in Virginia. On April 12, 2000, claimant injured his left leg during a playoff game against the Hampton Roads Admirals in Virginia.
    Code Sec. 65.2-101 provides in pertinent part, that "'[e]mployee' means . . . [e]very person, including aliens and minors, in the service of another under any contract of hire or apprenticeship, written or implied, whether lawfully or unlawfully employed."  It further provides, however, that "'[e]mployee' shall not mean . . [e]mployees of any person, firm or private corporation . . . that has regularly in service less than three employees in the same business within this Commonwealth . . . ."  Code Sec. 65.2-101.  Under this statute "once an employee proves that his or her injury occurred while employed in Virginia, an employer has the burden of producing sufficient evidence upon which the commission can find that the employer employed less than three employees regularly in service in Virginia."  Craddock Moving & Storage Co. v. Settles, 16 Va. App. 1, 2, 427 S.E.2d 428, 429 (1993), aff'd per curiam, 247 Va. 165, 440 S.E.2d 613 (1994).  "Whether a person is an 'employee' and whether an employer has three or more employees 'regularly in service' are pivotal determinations in deciding if an employer is subject to the Act."  Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448 (1987).
    Claimant contends that the commission erred in finding his injury was not covered by the Act.  The precise issue to be determined in the instant case is whether the term "regularly in service . . . within this Commonwealth" applies only to the number of employees required for coverage under the Act or whether it also applies to the amount of contact necessary to trigger coverage.  The commission correctly held that "regularly in service . . . within this Commonwealth" applies both to the number of employees required and the character of the business.  In the instant case and several others, the commission has interpreted the term "regularly in service . . . within the Commonwealth" to apply not only to the number of employees engaged in performing the employer's established mode of work, but also, to require that the character of the business' "contacts and activities" within the Commonwealth be more than "irregular or merely occasional" to allow jurisdiction over the claim.   See Johnson v. M.S. Carriers, VWC File No. 170-96-38 (March 24, 1998), aff'd, Johnson v. M.S. Carriers, Record No. 0907-98-3 (Va. Ct. App. January 12, 1999); Whitley v. Cardinal Freight Carriers, Inc., VWC File No. 166-03-27 (November 9, 1994).  The plain statutory requirement of at least three employees working with some degree of regularity within the Commonwealth is the triggering mechanism.  The court in Craddock implicitly discussed the issue of the necessity for certain "minimum contacts" to establish jurisdiction under the Act.  In Craddock, the court held that credible evidence supported the commission's exercise of jurisdiction because the evidence established the sufficient number of employees and the requisite minimum contacts.  16 Va. App. at 4, 427 S.E.2d at 431.  Unlike the instant case, the employees were hired in Virginia and the totality of their work for employer was completed in Virginia.  In the instant case, it is uncontested that employer had more than three full-time employees.  However, the character of employer's business within the Commonwealth was limited to twelve to fifteen days during the season and was not regular or ongoing.  Thus, the character of this business was such that its contacts with Virginia were occasional and irregular.  Therefore, credible evidence supports the commission's finding that the contacts were insufficient to meet the "regularly in service . . . within this Commonwealth" requirement of Code Sec. 65.2-101.  Curtis Bois v. Huntington Blizzard, Record No. 0839-02-4 (November 19, 2002).  WP Version.

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