Employee

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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., et al., Record No. 980190 (January 8, 1999) 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. 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).

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).

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