Uninsured Employer's FundvM.L.Edwards,J.Doyan etal , 32 Va. App. 814 ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner
Argued at Chesapeake, Virginia
UNINSURED EMPLOYER'S FUND
OPINION BY
v. Record No. 2476-99-1 JUDGE RICHARD S. BRAY
JULY 18, 2000
MICHAEL L. EDWARDS, JIM DOYAN and
C. LEWIS WALTRIP, II, INC./JAMESTOWN BUILDING CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Amy C. Stallings, Assistant Attorney General
(Mark L. Earley, Attorney General; John J.
Beall, Jr., Senior Assistant Attorney
General, on brief), for appellant.
Richard E. Garriott, Jr. (Robert A. Rapaport;
Clark, Dolph, Rapaport, Hardy & Hull, P.L.C.,
on brief), for appellees C. Lewis Waltrip,
II, Inc./Jamestown Building Corporation.
No brief or argument for appellees
Michael L. Edwards and Jim Doyan.
The Uninsured Employer's Fund (the Fund) appeals the decision
of the Workers' Compensation Commission (commission) relieving the
statutory employer, C. Lewis Waltrip, II, Inc./Jamestown Building
Corporation (Waltrip), of responsibility for benefits due Michael
L. Edwards (claimant) pursuant to the Workers' Compensation Act
(the Act). Relying upon the provisions of Code § 65.2-600(A), the
commission found Waltrip insulated from liability, absent both
proper notice of the accident and "at least sixty days notice of
the hearing to ascertain compensability." The Fund contends that
actual notice to Waltrip of the injury, though untimely, removed
the claim from the reach of Code § 65.2-600(A) but, if not,
Waltrip was sufficiently aware of the scheduled hearing to satisfy
the statutory mandate. Finding that the commission correctly
construed and applied Code § 65.2-600(A) to the instant
circumstances, we affirm the decision.
I.
The salient facts are substantially uncontroverted. While
employed by Jim Doyan, an uninsured contractor, claimant suffered
an industrial injury to his right eye on April 6, 1998. Although
Doyan learned of the accident and injury immediately after the
occurrence, neither Doyan nor claimant advised Waltrip, claimant's
statutory employer, of the incident.
On June 29, 1998, claimant lodged a "Claim for Benefits" with
the commission, resulting in a "Notification Letter" to both Doyan
and Waltrip, dated July 28, 1998, which reported the pending claim
and requested related documentation. George Jeffries, "general
manager" for Waltrip, testified that, "within 15 minutes" of
receiving the notice, he telephoned Waltrip's "on the job"
superintendent to determine "if he knew anything about this." The
superintendent disclaimed "knowledge of it happening," and Doyan
denied claimant had been in his employ. 1 Within a week
thereafter, Jeffries spoke to a "claims adjuster" for Waltrip's
1
Doyan later admitted that he employed claimant at the time
of the accident.
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workers' compensation insurance carrier, and suspended his
investigation of the accident after she advised, "let's just ride
this thing along and see what happens."
Waltrip filed a "First Report of Accident" on November 16,
1998, and the commission, on December 3, 1998, issued "Notice of
[a] Hearing" scheduled for January 19, 1999. Waltrip appeared at
the proceedings and denied liability, relying upon lack of timely
notice of both the accident and hearing, pursuant to Code
§ 65.2-600(A). Deputy Commissioner Andrea White Lee awarded
claimant benefits against Doyan, but, citing Code § 65.2-600(D),
relieved Waltrip of liability because Waltrip had not received
timely notice of the accident, without "reasonable excuse" by
claimant, resulting in "prejudice" to Waltrip. Code
§ 65.2-600(D). Claimant appealed to the full commission.
Affirming the deputy on appeal, albeit "[f]or different
reasons," the commission relied upon Code § 65.2-600(A) to deny
the claim, reasoning that, in default of notice of the accident
within thirty days of occurrence, pursuant to Code § 65.2-600(A)
and (D), Waltrip, as statutory employer, was entitled to sixty
days notice of the scheduled hearing in accordance with Code
§ 65.2-600(A).
II.
Code § 65.2-600 (formerly Code § 65.1-85) provides, in
pertinent part:
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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 a statutory employer, such
statutory employer may be held responsible
for . . . 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.
* * * * * * *
D. No compensation or medical benefit shall
be payable unless such written notice is
given within 30 days after the occurrence of
the accident or death, unless reasonable
excuse is made to the satisfaction of the
Commission for not giving such notice and
the Commission is satisfied that the
employer has not been prejudiced thereby.
(Emphasis added). Such notice must be provided to both "the
employer" and "any statutory employer." Code § 65.2-600(A); see
Race Fork Coal Co. v. Turner, 237 Va. 639, 644, 379 S.E.2d 341,
343-44 (1989); Wagner Enterprises v. Brooks, 12 Va. App. 890,
896-97, 407 S.E.2d 32, 36 (1991).
In adjudicating claims arising under the Act, the
commission and judiciary have accorded equal dignity to written
and actual notice to employers. In Department of Game and
Inland Fisheries v. Joyce, 147 Va. 89, 136 S.E. 651 (1927), the
Supreme Court concluded that:
[W]here there was no written notice but
. . . where a foreman or superior officer
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had actual knowledge of the occurrence of an
accident or death within a reasonable time
after the accident or death occurred and no
prejudice to the employer's rights was
shown, this was sufficient notice under
. . . the statute.
Id. at 97, 136 S.E. at 654; see Kane Plumbing v. Small, 7 Va.
App. 132, 138, 371 S.E.2d 828, 832 (1988) (knowledge by Small's
supervisor of his injury was notice to actual employer).
Following Kane, this Court also deemed actual notice to a
statutory employer sufficient compliance with the notice
requirements of Code § 65.1-85 (now Code § 65.2-600(A)). See
Wagner Enterprises, 12 Va. App. at 897, 407 S.E.2d at 36-37.
However, notice of the accident, whether written or actual,
must also be timely, "given within 30 days after the occurrence
. . ., unless reasonable excuse is made to the satisfaction of
the commission . . . and the commission is satisfied that the
employer has not been prejudiced thereby." Code § 65.2-600(D).
The resolution of claims attended by untimely notice to actual
employers, guided by a Code § 65.2-600(D) analysis, is not
unique in our jurisprudence. However, a paucity of decisions
have addressed the responsibility of a similarly situated
statutory employer, with Race Fork the seminal opinion.
In Race Fork, the commission held the statutory employer,
Race Fork Coal Company, responsible for a previous award of the
commission to an injured worker, despite an absence of notice to
Race Fork of either the accident or compensability hearing, a
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decision subsequently affirmed by this Court. See 237 Va. at
642, 379 S.E.2d at 342-43. In reversing on appeal, the Supreme
Court expressly declined to dismiss the claim against Race Fork,
recognizing that an employee "may not know the relationship
between his employer and some third party, who may be a
statutory employer at the time of . . . injury, and . . . may
not reasonably discover that relationship within a period of 30
days thereafter." Id. at 644, 379 S.E.2d at 343-44. However,
the Court concluded that due process entitled Race Fork to a "de
novo hearing" to adjudicate the respective "rights to benefits
under the Act," provided that the claimant tendered to the
commission a "reasonable excuse for not giving [timely] notice"
of the accident and Race Fork had not been prejudiced by a
default in notice. 2 Id. at 644, 379 S.E.2d at 344. Thus, the
Court sought to at once preserve the interest of the injured
worker and safeguard the right of the statutory employer,
without proper notice of the accident, to a hearing on the
claim.
Mindful of prior judicial construction and application of
the notice requirements prescribed by Code § 65.2-600(A) and (D)
and its precursors, the General Assembly, in 1997, amended Code
§ 65.2-600(A) to render a statutory employer, without "notice of
2
The predicates imposed by the Court to relief on the claim
comport with Code § 65.2-600(D), former Code § 65.1-85 cited by
the Court in n.3.
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the accident," responsible for related compensation awarded by
the commission, if such statutory employer is afforded sixty
days notice of the attendant hearing and "was not prejudiced by
lack of notice of the accident." Thus, the amendment
established a liability test unique to those statutory employers
without timely notice of the accident, one apart from the
reasonable excuse/prejudice inquiry prescribed for actual
employers by Code § 65.2-600(D), and the commission applied the
revised Code § 65.2-600(A) analysis to the instant claim.
"Well established 'principles of statutory construction
require us to ascertain and give effect to the legislative
intent.'" Brooks v. Commonwealth, 19 Va. App. 563, 566, 454
S.E.2d 3, 4 (1995) (citation omitted). "When new provisions are
added to existing legislation by amendment, we presume that the
legislature 'acted with full knowledge of and in reference to
the existing law upon the same subject and the construction
placed upon it by the courts[,] . . . that the legislature acted
purposefully with the intent to change existing law." Burke v.
Commonwealth, 29 Va. App. 183, 188, 510 S.E.2d 743, 745-46
(1999) (citations omitted). When "'the several provisions of a
statute suggest a potential for conflict or inconsistency,'" we
must construe such "'provisions so as to reconcile them and to
give full effect to the expressed legislative intent.'" Herrel
v. Commonwealth, 28 Va. App. 579, 585, 507 S.E.2d 633, 636
(1998) (citation omitted). Finally, "'[t]he construction
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afforded a statute by the public officials charged with its
administration and enforcement is entitled to be given weight by
a court.'" Lynch v. Lee, 19 Va. App. 230, 232, 450 S.E.2d 391,
392 (1994) (citation omitted).
Here, the legislative, administrative and judicial history
of Code § 65.2-600 clearly suggests that the legislature
intended, by the amendment, that the potential responsibility of
a statutory employer for a claim under the Act, absent timely
notice of the related accident, be resolved upon considerations
different from those enumerated in Code § 65.2-600(D),
applicable to actual employers. The attenuated, oftentimes
remote, relationship between the statutory employer and the
worker, together with the need to preserve the rights and
responsibilities of each, required a balancing of competing
interests through a distinct procedural course. Thus, the
legislature, while mandating notice of an accident within thirty
days of the occurrence to both statutory and actual employers,
fashioned a threshold inquiry specific to a determination of
responsibility under the Act upon a statutory employer without
timely notice of the accident. Under such circumstances, the
statutory employer must have received at "least sixty days
notice of the hearing to ascertain compensability of the
accident" and suffered no prejudice from "lack of notice."
Applying Code § 65.2-600(A) to the instant record, the
commission correctly concluded that Waltrip neither received
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timely notice of the accident nor at least sixty days notice of
the hearing. Accordingly, the commission properly ruled that
Waltrip was "not responsible for the award of compensation" to
claimant.
Affirmed.
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