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MUSSO’S TOWING, INC.
COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
Record No. 1100-03-1
MUSSO’S TOWING, INC.
SEPTEMBER 9, 2003
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(W. Ware Morrison, on brief), for appellant.
(Anthony L. Montagna, Jr.; Montagna &
Montagna, P.C., on brief), for appellee.
Musso’s Towing, Inc. (Musso’s) contends the Workers’
Compensation Commission erred in finding that Steve Wall
(claimant) was its employee rather than an independent
contractor at the time of his compensable injury by accident on
October 4, 2001. Pursuant to Rule 5A:21(b), claimant raises the
additional questions of whether this Court should (1) order
Musso’s to pay claimant’s attorney additional attorney’s fees
and costs; and (2) assess sanctions against Musso’s pursuant to
Code ? 8.01-271.1. Upon reviewing the record and the parties’
briefs, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission’s decision.
I. Employee vs. Independent Contractor
"The Workers’ Compensation Act covers employees but not
independent contractors." County of Spotsylvania v. Walker,
Va. App. 224, 229, 487 S.E.2d 274, 276 (1997). This distinction
must be determined from the facts of each case, with the burden
upon the person seeking benefits under the Act to prove the
relationship contemplated by the Act. Id. at 229-30, 487 S.E.2d
at 276; see Code ? 65.2-101. Although the commission’s factual
findings are binding and conclusive on appeal, when they are
supported by credible evidence, see James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989), a
"[d]etermination of the relationship involves a mixed
of law and fact which is reviewable on appeal." County of
Spotsylvania, 25 Va. App. at 230, 487 S.E.2d at 276.
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)).
[T]he 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."
The extent of the reserved right of control
may be determined by examining the
performance of the parties in the activity
Intermodal Servs., Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d
221, 224 (1988) (citations omitted).
Musso’s sole argument on appeal is that because claimant
was paid by the job for each completed vehicle repair he was an
In holding that an employee/employer relationship existed
between claimant and Musso’s, the commission made the following
[T]he employer, Dominic Musolino, agreed to
hire the claimant to perform auto repair
work as a "subcontractor," and did not
deduct any employee withholdings from the
claimant’s pay. However, the claimant
worked a regular schedule at the employer’s
shop and attended to customers that were
sent by Mr. Musolino. The claimant supplied
most, but not all, of the tools, completed
work orders that were provided to him, and
was paid per hour for the jobs. He
testified that he was told what repair work
to perform just like "a regular shop would
do." He also drove the tow truck at night
on an on-call basis. We find this evidence
sufficient to demonstrate that the claimant
was an employee.
Claimant’s testimony constitutes credible evidence to
support the commission’s finding that he was Musso’s employee
rather than an independent contractor. Claimant testified that
he received work through work orders that were written on
customer’s vehicles by Musolino or whoever answered the shop
telephone. Musso’s paid claimant $29.50 per hour for the number
of hours he was required to work on each repair. He earned an
average of $600 per week. He worked regular hours from 9:00
a.m. to 5:00 or 6:00 p.m. He also worked some nights as a tow
truck driver for Musso’s. He stated that he worked an average
of thirty to fifty hours per week.
The fact finder was entitled to reject those portions of
Musolino’s testimony that conflicted with claimant’s testimony.
It is well settled that credibility determinations are within
the fact finder’s exclusive purview. Goodyear Tire & Rubber
v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).
Furthermore, the manner in which Musso’s paid claimant by the
hour for each individual repair job did not necessarily make him
an independent contractor, rather "[i]t merely constituted
manner of payment and the measure of compensation for his
services . . . ." Jackson v. Haynie’s Adm’r, 106 Va. 365,
56 S.E. 148, 149 (1907). "Payment of wages, alone, is not
determinative factor." Purvis v. Porter Cabs, Inc., 38 Va.
760, 773 n.4, 568 S.E.2d 424, 430 n.4 (2002).
Claimant’s testimony proved that Musolino reserved the
right to exercise control over the means and methods by which
claimant’s work was ultimately accomplished. Musolino admitted
that if claimant did not have the proper tools to perform a
repair, he would give the repair to another mechanic. Thus,
credible evidence supports the commission’s finding that Musso’s
exercised the requisite control over claimant to make him its
II. Attorney’s Fees
In his December 4, 2002 opinion, the deputy commissioner
awarded claimant’s counsel attorney’s fees in the amount of $800
to be paid from claimant’s accumulated benefits. On review to
the full commission, claimant did not request an award of
additional attorney’s fees. The full commission affirmed the
deputy commissioner’s decision without an award of additional
Claimant now requests that this Court order Musso’s to pay
additional attorney’s fees and costs to claimant’s counsel
incurred as a result of Musso’s request for review to the full
commission and its appeal to this Court.
"Code ? 65.1-102 [(now Code ? 65.2-714)] provides that
of attorneys shall be subject to the approval and award of the
Commission." Hudock v. Industrial Comm’n, 1 Va. App. 474,
340 S.E.2d 168, 171 (1986). Thus, claimant’s request must be
made to the commission not this Court. Accordingly, we decline
to address this issue on appeal.
Claimant requests that this Court assess sanctions against
Musso’s under Code ? 8.01-271.1. Claimant contends that Musso’s
appeal to this Court is not grounded in fact or warranted by
existing law or a good faith argument for an extension,
modification, or reversal of existing law. Claimant also
alleges that Musso’s appeal was undertaken to harass, cause
unnecessary delay, or needlessly increase litigation costs.
To establish a basis for sanctions, the
record and existing law must be sufficient
to establish that, after reasonable inquiry,
[Musso's] could not have formed a reasonable
belief that its [appeal] was "warranted by
We need not decide whether [Musso's]
position was actually "warranted by existing
law." In assessing conduct which is
allegedly in violation of Code ? 8.01-271.1,
we apply an objective standard of
reasonableness. We also resolve any doubts
in favor of [Musso's], and eschew the wisdom
County of Prince William v. Rau, 239 Va. 616, 620, 391 S.E.2d
290, 292-93 (1990) (citation omitted) (footnote omitted).
Under the facts and circumstances of this case, Musso’s
could have formed the reasonable belief that its appeal was
warranted by existing law. Furthermore, nothing shows that
Musso’s appeal was undertaken to harass, cause unnecessary
delay, or needlessly increase litigation costs. Accordingly,
claimant’s request for an assessment of sanctions against
Musso’s, pursuant to Code ? 8.01-271.1, is denied.
For these reasons, we affirm the commission’s decision.
Code ? 17.1-413, this opinion is not
designated for publication.