Uninsured Employer's Fund v. William Marsh

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Overton and Senior Judge Duff
Argued by Teleconference
JOHN WARNER T/A JOHN WARNER CONSTRUCTION
v. Record No. 2556-96-4
WILLIAM MARSH MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
UNINSURED EMPLOYER'S FUND JUNE 10, 1997
v. Record No. 2604-96-4
WILLIAM MARSH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Douglas E. Bywater (Tate & Bywater, Ltd., on
brief), for John Warner t/a John Warner
Construction.
Paul S. Stahl, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
John J. Beall, Jr., Senior Assistant Attorney
General, on brief), for Uninsured Employer's
Fund.
Robert A. Mordhorst (Mordhorst & Taweel, on
brief), for William Marsh.
The Uninsured Employer's Fund and John Warner each appeal
the decision of the Workers' Compensation Commission awarding
benefits to William Marsh for injuries by accident to his back
and shoulder. The Fund appeals the compensability of the
shoulder injury and further contends that the commission erred in
entering the award against the general contractor as a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
corporation instead of as an individual. John Warner, Marsh's
direct employer and a subcontractor, also appeals the
compensability of the shoulder injury, as well as the back
injury. 1 We affirm the decision of the commission as to
compensation, but remand with instructions to vacate the award
against the general contractor as a corporation and enter it
against the general contractor as an individual.
The parties are fully conversant with the record in the
cause, and because this memorandum opinion carries no
precedential value, no recitation of the facts is necessary.
Both the Fund and John Warner claim that the commission
erred in finding that Marsh's shoulder injury was a compensable
injury by accident. Guided by well established principles, we
construe the evidence in the light most favorable to the party
prevailing below. See Crisp v. Brown's Tysons Corner Dodge,
Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). "If there
is evidence, or reasonable inferences can be drawn from the
evidence, to support the Commission's findings, they will not be
disturbed on review, even though there is evidence in the record
to support a contrary finding." Morris v. Badger Powhatan/Figgie
1
Because John Warner did not ask for a review by the full
commission of the deputy commissioner’s finding as to the back
injury, this issue does not properly come before the Court on
appeal. As such, we do not address John Warner’s contention.
2
Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986); see
Code § 65.2-706. "In determining whether credible evidence
exists," this Court will not "retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
the credibility of the witnesses." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citation
omitted).
The record contains evidence that Marsh's shoulder, although
previously injured, underwent a significant structural change as
a result of the incident in question. Marsh's treating
physician, in his notes, letters, and interrogatories, opined
that the incident caused the change in his shoulder and
necessitated surgery. The physician also made a seemingly
inconsistent opinion, but this represents at best an internal
conflict of an expert that was resolved by the commission in
favor of the claimant. That determination is supported by
credible evidence and is binding and conclusive on appeal. See
Greif Cos./Genesco, Inc. v. Hensley, 22 Va. App. 546, 552, 471
S.E.2d 803, 806 (1996).
We agree with the Fund's second contention that the
commission entered the award against an incorrect employer. As
general contractor on the construction site, both P.D. Gravett as
an individual and P.D. Gravett Management Services were before
the commission as defendants. The commission's file indicated
that P.D. Gravett Management Services had been terminated as a
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corporation six months before the accident. The owner of the
property stated that P.D. Gravett was a general contractor
retained as an independent contractor to supervise the building
of residential houses.
"It is well established that any actions performed by the
directors or officers after dissolution, if not related to the
process of winding up the corporation's affairs, should be deemed
individual actions, with concomitant individual liability
therefor. If an entity is no corporation at all, the individuals
who conduct its affairs must be personally liable for their
acts." Hudgins v. IRS, 132 B.R. 115, 117-18 (E.D. Va. 1991).
When Marsh was injured, Gravett as an individual was the general
contractor and was not a representative of P.D. Gravett
Management Services, which at that time did not exist.
Therefore, Gravett was personally liable.
We affirm the decision of the commission as to all issues
raised by the parties, except that we remand to the commission
with instructions to vacate the award against P.D. Gravett
Management Services and enter an award against P.D. Gravett as an
individual.
Affirmed in part
and remanded.
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