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COURT OF APPEALS OF VIRGINIA


Present:  Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia


JOHN OSBORNE
   OPINION BY
v. Record No. 2434-00-4 JUDGE ROSEMARIE ANNUNZIATA
         JULY 3, 2001
ROBERT FORNER t/a BRUSH OF CLASS AND
UNINSURED EMPLOYER'S FUND


FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

  Julie H. Heiden (Koonz, McKenney, Johnson, Depaolis & Lightfoot, on brief), for appellant.

  James R. Ryan (Susan A. Evans; Siciliano, Ellis, Dyer & Boccarosse, on brief), for appellee Robert Forner t/a Brush of Class.

  Paul S. Stahl, Assistant Attorney General (Mark L. Earley, Attorney General; John J. Beall, Jr., Senior Assistant Attorney General, on brief), for appellee Uninsured Employer's Fund.



The appellant, John Osborne, appeals a decision by the  Workers' Compensation Commission finding that the employer, Robert Forner, t/a Brush of Class, did not regularly employ three or more employees and was, therefore, not subject to the  Workers' Compensation Act.  For the following reasons, we affirm.
BACKGROUND
Osborne was injured on November 4, 1997 while working for Robert Forner.  Forner, a sole proprietor, works as a painting contractor.  In October 1997, Osborne was in a paint store filling out an employment application when he met Forner.  Forner testified that he "had a pretty large size job going on, so when I saw him filling out the application, I asked him if he was a painter, and then I asked him if he would like to work."  Forner told Osborne that he paid $120 per day but that Forner could not guarantee him year-round work.  Osborne worked for Forner for eight days before he was injured on the job.
Forner had two other employees, Stephanie Wickham and Mike Dunigan, both of whom worked with him on a part-time basis.  Forner described his relationship with Wickham as follows:
I would call her when I had enough work that I may need to use somebody, and if she could not show up, she would tell me so, and that's fine, and if she could show up, she would.  She was also going to school at NOVA at the same time.

Mike Dunigan had worked for Forner "on and off" for about eight years, and Forner described his relationship with Dunigan as follows:
Basically the same [as with Wickham], that I would call him up when I had work and if he could show, he would.  If he was working for somebody else at the time, he would tell me, and I would have to continue on the best I could.

During periods when business was slow or when Dunigan or Wickham was unavailable, Forner performed all the required work himself.  Forner worked alone 75-80% of the time and did not work three months out of the year.  He was described by Dunigan as a "one-man show."  Dunigan also stated that the work was "not at all consistent."  In 1997, the year of Osborne's injury, Dunigan had worked about fifty days for Forner and Wickham had worked about forty.  Forner estimated that there were about twenty days in 1997 on which both Dunigan and Wickham worked.  
Dunigan generally worked alone on the Jenkins Lane project, the site where Osborne was injured.  "Stephanie [Wickham] came in a couple times . . . [but] she wasn't there everyday."  On the day Osborne was injured, Wickham was working on another project with Forner, but Dunigan testified that it was "rare" that more than one project at a time was undertaken and that he had "never seen it before."  During the eight days Osborne worked prior to his injury, Dunigan worked with him every day.
Following his injury on November 4, 1997, Osborne filed for workers' compensation benefits.  Forner contested the claim on the ground that, because he did not regularly employ three or more employees, he was not subject to the provisions of the Workers' Compensation Act.  By opinion dated April 18, 2000, the deputy commissioner held that the employer regularly employed three or more employees and was, therefore, subject to the commission's jurisdiction.  By opinion dated September 11, 2000, the full commission reversed, finding that Forner did not regularly employ three or more employees.  Osborne now appeals to this Court.
ANALYSIS
Under Code

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