To the extent that Defendant now tries to extend Henderson to include private entities, the Court notes that a 1992 Virginia Supreme Court case forecloses such an interpretation. In Johnson v. Jefferson Nat'l Bank, 244 Va. 482, 422 S.E.2d 778 (1992), the Virginia Supreme Court stated that, when determining whether the defendant bank was a statutory employer, the Henderson "test is inapplicable here because the Bank is not a public entity." Johnson, 244 Va. at 485 n. 1, 422 S.E.2d at 780;see also Bowling v. Wellmore Coal Corp., 114 F.3d 458, 463 (4th Cir. 1997) ("The footnote in Johnson . . . simply indicates the court's decision not to apply to private owners the rules used to decide whether a public owner is a statutory employer.").
We have applied that provision and its predecessors in various contexts, including those involving both private-business employersSee, e.g. , Rodriguez , 287 Va. at 194-98, 754 S.E.2d 275 ; Johnson v. Jefferson Nat’l Bank , 244 Va. 482, 485 & n.1, 422 S.E.2d 778 (1992) ; Nichols v. VVKR, Inc. , 241 Va. 516, 521-23, 403 S.E.2d 698 (1991) ; Cinnamon , 238 Va. at 474, 478, 384 S.E.2d 618 ; Carmody v. F.W. Woolworth Co. , 234 Va. 198, 203, 361 S.E.2d 128 (1987) ; Shell Oil Co. , 212 Va. at 719, 724, 187 S.E.2d 162. and governmental employers
Answering the question before us "is not a simple, straightforward exercise," Henderson v. Central Tel. Co., 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987) ; it "depends upon the facts and circumstances of the particular case [and] ‘does not readily yield to categorical or absolute standards.’ " Johnson v. Jefferson Nat'l Bank, 244 Va. 482, 485, 422 S.E.2d 778, 780 (1992) (quoting Bassett Furniture Indus., Inc. v. McReynolds, 216 Va. 897, 902, 224 S.E.2d 323, 326 (1976) ). The Act's exclusivity provision, Code § 65.2–307(A), mandates that the rights and remedies provided in the Act "exclude all other rights and remedies" of a covered employee or his beneficiaries for injuries sustained in the course of employment.
To support his claim that Smith is no longer good law, Bowling points to the Virginia Supreme Court's language where it simply expressed that it would not use the same criteria to evaluate whether a claimant was engaged in the business of a private owner as it used with regard to an owner which was a public entity. Johnson v. Jefferson National Bank, 422 S.E.2d 778, 780 n. 1 (Va. 1992). From this notation in Johnson, Bowling reasons that, since Smith cited Anderson v. Thorington Construction Co., 110 S.E.2d 396 (Va. 1959), with approval, and since the owner in Anderson was a public entity (the Richmond-Petersburg Turnpike Authority), then Smith "is no longer authoritative on the issue of a private owner's `trade, business or occupation.'" Br. of Appellant at 18.
" 216 Va. at 903, 224 S.E.2d at 327.Johnson v. Jefferson National Bank, 244 Va. 482, 487, 422 S.E.2d 778, 780 (1992), is to the same effect, holding that employees of a painting contractor engaged to paint a bank building at great height and under unusual working conditions were not statutory employees of the bank because the bank's own maintenance employees did not do painting work under comparable conditions. See also Farish v. Courion Industries, Inc., 722 F.2d 74, 79-80 (4th Cir. 1983); Cinnamon v. International Business Machines Corp., 238 Va. 471, 479, 384 S.E.2d 618, 622 (1989); Oakwood Hebrew Cemetery Association v. Spurlock, No. 1978-91-2, slip op. at 7-10, 1992 WL 441851 (Va.App. Aug. 18, 1992).
The characteristics of the University informing our decision in that case are the same here. Although we did not use the specific term "governmental entity" in Phillips, certainly an entity that is established by statute, is governed and controlled solely by the General Assembly, owns property through money appropriated by the General Assembly, and whose very essence is public use and service is a governmental entity, is to be treated in the same manner as municipalities for the purposes of the Act. In a situation in which an employee of an independent contractor sues a private entity that owns a project, we have applied the "normal work test" to determine whether the injured party was engaged in the trade, business, or occupation of the owner at the time of his or her injury. See Bassett Furniture Indus., Inc. v. McReynolds, 216 Va. 897, 902-03, 224 S.E.2d 323, 326-27 (1976); Johnson v. Jefferson Nat'l Bank, 244 Va. 482, 485, 422 S.E.2d 778, 780 (1992). However, the normal work test does not apply to the determination of the trade, business, or occupation of a governmental entity.
In the present case, it is plain that plaintiff was injured while engaged in the State's business of distributing liquor to its local agencies. See 7 V.S.A. § 104(2) (commissioner shall supervise operation of local agencies for sale and "distribution" of spiritous liquors); see Johnson v. Jefferson Nat'l Bank, 422 S.E.2d 778, 780 n. 1 (Va. 1992) (determining whether employee is engaged in business of public entity requires examination of nature of business mandated or authorized by legislative authority). While we recognize that the State's relationship to Nelson Trucking in this case is not identical to the general contractor-subcontractor context at a construction site, nothing in § 601(3) or any of the other provisions of the Workers' Compensation Act suggest that the State should be precluded from obtaining the status of statutory employer in this case.
Hence, the defendant was not the plaintiff's statutory employer because defendant did not prove that he acted as a general contractor on behalf of his patient within the meaning of Code Sec. 65.1-30, nor did he prove that plaintiff was engaged in an activity that was part of defendant's trade, business, or occupation. See Johnson v. Jefferson Nat'l Bank, 244 Va. 482, 422 S.E.2d 778 (1992), decided today. Therefore, plaintiff's common-law action is not barred by the provisions of the Act upon which defendant relies.
"[I]t 'depends upon the facts and circumstances of the particular case [and] does not readily yield to categorical or absolute standards.'" Id. (quoting Johnson v. Jefferson Nat'l Bank, 244 Va. 482, 485, 422 S.E.2d 778, 780 (1992)).
Indeed, on numerous occasions the Supreme Court has cautioned just the opposite. A sampling of cases broken down categorically as follows: (1) Pyramid Cases:Clean Sweep Professional Parking Lot Maintenance, Inc. v. Talley, 267 Va. 210, 591 S.E.2d 79 (2004); Pfeifer v. Krauss Construction of Va., Inc., 262 Va. 262, 546 S.E.2d 717 (2001); Nichols v. VVKR, Inc., et al., 241 Va. 516, S.E.2d 698 (1991); Evans v. Hook, 239 Va. 127, 387 S.E.2d 777 (1990); Smith v. Horn, 232 Va. 302, 351 S.E.2d 149 (1986); Anderson v. Thorington Construction Company, Inc., 201 Va. 266, 110 S.E.2d 396 (1959); Lincoln v. International Speedway Corp., 59 Va. Cir. 133 (Richmond Cir. 2002); (2) Ascending Cases:Henderson v. Central Tel. Co., 233 Va. 377, 355 S.E.2d 596 (1987); Bassett Furniture v. McReynolds, 216 Va. 897, 224 S.E.2d 323 (1976); Johnson, et al. v. Jefferson National Bank, 244 Va. 482, 422 S.E.2d 778 (1992); Cinnamon v. International Business Machines, 238 Va. 471, 384 S.E.2d 618 (1989); Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162 (1972); Sears, Roebuck & Co. v. Wallace, 172 F.2d. 802, 810 (4th Cir. 1949); Fose v. Gwaltney of Smithfield, 67 Va. Cir. 347 (Portsmouth Cir. 2005); Baker v. Rubbermaid Commercial Products, Inc., 30 Va. Cir. 147 (Winchester Cir. 1993); Pendleton v. Harcos Lumber & Building Supplies, Inc., 47 Va. Cir. 455 (Roanoke Cir. 1998); (3) Descending Cases:Stewart v, Bass Construction Company, Inc., 223 Va. 363, 288 S.E.2d 489 (1982); Fowler v. International Cleaning Service, Inc., 260 Va. 421, 537 S.E.2d 312 (2000); Stone v. Door-Man Manufacturing Co., 260 Va. 406, 537 S.E.2d 305 (2000); Anderson v. Dillow, 262 Va. 797, 553 S.E.2d 526 (2001); Farish v. Courion Industries, Inc., et al., 722 F.2d. 74 (4th Cir. 1983); Doane, et al. v. E.I. Dupont De Nemours & Co. Inc., 209 F.2d 921 (4th Cir. 1954). Note that in a 1983 "descending case", the Fourth Circuit obser