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COURT OF APPEALS OF VIRGINIA
Present:    Chief Judge Fitzpatrick,*  Judge Elder and
Senior Judge Duff
Argued at Alexandria, Virginia
UNINSURED EMPLOYER'S FUND
                                                                    OPINION BY
v.    Record No.  0693-97-4                                         JUDGE CHARLES H. DUFF
                                                                    FEBRUARY  10,  1998
ROSA L. HARPER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Paul S. Stahl, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
John J. Beall, Jr., Senior Assistant Attorney
General, on brief), for appellant.
Charles P. Monroe  (Duncan and Hopkins, P.C.,
on brief), for appellee.
The Uninsured Employer's Fund  ("the Fund") appeals a
decision of the Workers' Compensation Commission  ("commission")
awarding compensation benefits to Rosa L. Harper  ("claimant").
The Fund contends the commission erred in finding that  (1) the
issue of jurisdiction was res judicata because the Fund did not
appeal the commission's March  14,  1996 review opinion; and  (2)
Lomax A.M.E. Zion Church  ("the local church" or "employer") had
three employees regularly in service in Virginia, thereby
allowing the commission to exercise jurisdiction over claimant's
claim for benefits.    For the following reasons, we reverse the
commission's decision.
*On November  19,  1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.




Background
On December  28,  1994, claimant, a secretary employed by the
local church, slipped and fell on a wet concrete floor while
walking into the church building.    As a result, she injured her
right knee and back.    At the time of claimant's accident, the
local church did not carry workers' compensation insurance.    As
of the date of the accident, James Gaskill worked for employer as
a custodian.1
Reba Nettles, the chairwoman of the trustees board of the
local church, testified that at an annual conference of the
national A.M.E. Zion Church  ("the parent church"), the bishop
appointed Reverend Lamb as pastor of the local church.    Although
the local church members may suggest to the bishop at the annual
conference that a pastor be removed, the bishop has final
decision-making power over the hiring, firing, or transfer of a
pastor.
With respect to Reverend Lamb's day-to-day planning for the
local church, he received direction from the bishop and
suggestions from the local church members.    The local church
provided Reverend Lamb with an allowance, including a place to
live and travel expenses.    The board of trustees of the local
church determined the hours and type of work performed by
1The Fund and employer do not dispute that claimant and
Gaskill were employees of the local church.    The relevant issue
is whether Reverend Joseph Lamb was an employee of the local
church at the time of claimant's accident.
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claimant and Gaskill.    Reverend Lamb is a member of the local
church's board of trustees.    The bishop and Reverend Lamb
determined the hours and type of work he performed for the local
church.    Nettles testified that the local church determined and
paid Reverend Lamb's salary.    The local church also contributed
to a general fund administered by the parent church, which is
used to pay the pastor's pension.
Reverend Lamb testified that the bishop appointed him to the
local church.    Reverend Lamb stated that he will remain at the
local church until the bishop decides to transfer him elsewhere
or until he requests a transfer.    Reverend Lamb stated that the
bishop is the governing authority who decides whether a pastor
will be assigned to a particular church in the diocese.    The
local church members vote each year whether they wish to retain
the pastor.    If they wish to have the pastor removed, they send a
delegate to the annual conference to make their wish known.
However, the bishop makes the final decision as to whether the
pastor is actually removed.
Although Reverend Lamb received a salary from the local
church, the local church did not deduct or pay his taxes.
Reverend Lamb estimated his taxes on a quarterly basis and paid
his taxes as a self-employed individual.    Reverend Lamb's duties
are governed by the Book of Discipline of the Zion Church, a book
of rules and laws established by the parent church.    The bishop
also oversees Reverend Lamb's work as a pastor.
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In an October  31,  1995 decision, the deputy commissioner
ruled that Reverend Lamb was not an employee of the local church.
The deputy commissioner found that the local church employed
only two individuals, claimant and Gaskill.    Accordingly, the
deputy commissioner held that the local church was not subject to
the commission's jurisdiction.
In a March  14,  1996 opinion, the full commission reversed
the deputy commissioner's decision and found that Lamb was an
employee of the local church.    Thus, the commission found that
the local church employed three or more persons.    Accordingly,
the commission ruled that the local church was subject to the
commission's jurisdiction.    The full commission remanded the case
to the deputy commissioner for a determination on the record
regarding the claim for benefits.
Employer noted a timely appeal to this Court from the
commission's March  14,  1996 decision.    However, by order dated
July  12,  1996, we dismissed employer's appeal because employer
did not file an opening brief before the time for doing so had
expired.    The Fund did not appeal the commission's March  14,  1996
decision.
On November  15,  1996, the deputy commissioner issued an
opinion on the merits of the claim for benefits.    The deputy
commissioner found that claimant proved she sustained an injury
by accident arising out of and in the course of her employment on
December  28,  1994.    The deputy commissioner awarded claimant
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temporary total and temporary partial disability benefits for
various time periods and imposed a  $500 penalty against employer
for failing to carry workers' compensation insurance.    The Fund
sought review of this decision on the jurisdiction issue and on
the merits of the claim.
In a February  18,  1997 opinion, the full commission refused
to address the jurisdiction issue, finding that "[t]he issue of
jurisdiction, once decided and not perfected on appeal, is
therefore res judicata."    In so ruling, the commission referred
to employer's appeal, which this Court had dismissed.    The
commission affirmed the deputy commissioner's finding that
claimant proved an injury by accident arising out of and in the
course of her employment and the findings with respect to
disability and the penalty imposed.
I.
Code  §  65.2-706 provides that "[n]o appeal shall be taken
from the decision of one Commissioner until a review of the case
has been had before the full Commission, as provided in Code
§  65.2-705, and an award entered by it.    Appeals shall lie from
such award to the Court of Appeals  .  .  .                               ."    "[T]he words 'such
award'  .  .  .  [contained in  §  65.2-706] mean final award, that is,
a decision of the  .  .  . Commission granting or denying, or
changing or refusing to change, some benefit payable or allowable
under the  .  .  . Act and leaving nothing to be done except to
superintend ministerially the execution of the award."    Jewell
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Ridge Coal Corp. v. Henderson,  229 Va.  266,  269,  329 S.E.2d  48,
50  (1985).
The commission's determination of the jurisdiction issue in
its March  14,  1996 opinion and its subsequent remand of the case
to the deputy commissioner for a determination of the merits of
the claim for benefits did not constitute a final award
appealable to this Court.    See id.    Moreover, the fact that
employer appealed the commission's decision to this Court and
elected not to pursue that appeal, which was dismissed for want
of prosecution, did not render the commission's decision final
and did not deprive the Fund of its right to appeal the
jurisdiction issue to this Court.
Furthermore, the March  14,  1996 opinion did not adjudicate
"the principles of a cause."    Code  §  17-116.05(4).    The
commission merely held that it had jurisdiction over the
employer, and it remanded the case to the deputy commissioner for
further proceedings.    The merits of the case had not been
addressed, and the opinion was interlocutory and not determinable
of the controversy.    See generally Polumbo v. Polumbo,  13 Va.
App.  306,  411 S.E.2d  229  (1991); Weisenbaum v. Weisenbaum,  12 Va.
App.  899,  407 S.E.2d  37  (1991); Pinkard v. Pinkard,  12 Va. App.
848,  407 S.E.2d  339  (1991).    Accordingly, this Court was without
jurisdiction to entertain an appeal of the March  14,  1996
opinion.2    Furthermore, the Fund was not required to join the
2In its March  14,  1996 opinion, the commission stated:
"This Opinion shall be final unless appealed to the Virginia
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employer in its appeal at the risk of losing its right to appeal
the jurisdiction issue when a final order was entered.    The Fund
was not required to join in a futile appeal of an interlocutory
order.
Accordingly, we reverse the commission's decision finding
the jurisdiction issue res judicata.
II.
This appeal does not present a case of
conflicting evidence or a dispute concerning
the commission's findings of fact.    When the
issue is the sufficiency of the evidence and
there is no conflict in the evidence, the
issue is purely a question of law.    This
Court is not bound by the legal
determinations made by the commission.    "[W]e
must inquire to determine if the correct
legal conclusion has been reached."
Cibula v. Allied Fibers & Plastics,  14 Va. App.  319,  324,  416
S.E.2d  708,  711  (1992)  (quoting City of Norfolk v. Bennett,  205
Va.  877,  880,  140 S.E.2d  655,  657  (1965)), aff'd,  245 Va.  337,
428 S.E.2d  905  (1993).
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
(..continued)
Court of Appeals within thirty days."    The opinion was
interlocutory, not final, and the commission incorrectly stated
that it was final.    The commission's incorrect statement cannot
serve to grant this Court jurisdiction over an appeal where there
is no statutory basis for that jurisdiction.
Moreover, we are puzzled by the commission's language that
the "Opinion shall be final unless appealed  .  .  .                     ."   (Emphasis
added.).    An opinion is either final or interlocutory when
written.    Its finality does not depend on whether an aggrieved
party appeals the opinion.
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performed.    The power of control is the most significant indicium
of the employment relationship.'"    Behrensen v. Whitaker,  10 Va.
App.  364,  367,  392 S.E.2d  508,  509-10  (1990)  (quoting Richmond
Newspapers, Inc. v. Gill,  224 Va.  92,  98,  294 S.E.2d  840,  843
(1982)).    The employer-employee relationship exists if the power
to control includes not only the result to be accomplished but
also the means and methods by which the result is to be
accomplished.    See id. at  367,  392 S.E.2d at  510.
Here, the commission erroneously analyzed this issue as one
of whether Reverend Lamb was an employee of the local church or
an independent contractor.    We agree that the evidence did not
establish that Reverend Lamb was an independent contractor.
However, our analysis does not end with that conclusion.    The
determinative issue is whether Reverend Lamb was an employee of
the local church.
The evidence established that, although the local church
provided the facilities and paid Reverend Lamb's salary, the
power of control over his work as a pastor emanated from the
bishop, who is affiliated with the parent church.    The bishop,
not the local church, appointed Reverend Lamb as pastor of the
local church, and the bishop reserved the right to terminate or
transfer Reverend Lamb's employment.    In addition, the rules
governing Reverend Lamb's tenure as pastor of the local church
derived from the Book of Discipline established by the parent
church, not from the local church's members or board of trustees.
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Under these circumstances, we find as a matter of law that
Reverend Lamb was not an employee of the local church.3
Accordingly, because the local church did not have three or more
employees regularly in service in Virginia at the time of
claimant's industrial accident, the commission erred in
exercising jurisdiction over the claim for benefits.    Therefore,
we reverse the commission's decision awarding compensation
benefits to claimant.
Reversed.
3We are not presented with the issue of whether Reverend
Lamb was an employee of the parent church and accordingly express
no opinion on that issue.
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