Wagner Enterprises, Inc. v. Brooks

Decision Date01 July 1991
Docket NumberNo. 1284-90-4,1284-90-4
PartiesWAGNER ENTERPRISES, INC., and Assurance Company of America v. Mark Russell BROOKS, Ed Ellis Carpentry, American National Fire Insurance, Co., Charles R. Seward, and Uninsured Employers' Fund. Record
CourtVirginia Court of Appeals

John C. Duncan, III (Mark W. Borghesani; McChesney, Duncan & Dale, P.C., on brief), Fairfax, for appellant.

John K. Coleman, Merrifield (David Rosenblum, Alexandria, John D. Tew, Falls Church, Joseph N. Bowman, Alexandria, Slenker, Brandt, Jennings & Johnston, Merrifield, Rosenblum and Rosenblum, P.C., Alexandria, Gillenwater & Tew, on briefs, Falls Church), for appellees.

Present: COLEMAN, KEENAN and MOON, JJ.

KEENAN, Judge.

Wagner Enterprises and Assurance Company of America (Wagner) appeal from a decision in which the commission awarded compensation benefits and medical expenses to Mark R. Brooks. The commission found that since Wagner, the general contractor on the job site, had actual notice of Brooks' injury, it was liable under Code § 65.1-30 1, as a statutory employer, for payment of benefits to Brooks. At the same time, the commission found that Charles R. Seward, Brooks' uninsured immediate employer, and Ed Ellis Carpentry (Ellis), the insured subcontractor directly above Seward in the employment hierarchy, were not liable for payment of benefits because they did not receive timely notice as required by Code § 65.1-85 2, and Brooks had failed to establish a reasonable excuse for failing to give them notice as required by the statute.

The issues presented in this appeal are: (1) whether the commission erred in finding that Seward and Ellis did not receive actual notice of the injury from Brooks within thirty days of the accident; (2) whether the commission erred in finding that Brooks failed to establish a reasonable excuse for not giving Seward and Ellis notice of the injury; and (3) whether the commission erred in imposing liability on Wagner, the general contractor, when Ellis was the first insured statutory employer over Brooks in the employment hierarchy. We find that credible evidence supports the commission's findings that Ellis and Seward were not given timely notice of the accident and that Brooks did not establish a reasonable excuse for failing to give them notice of his injury. We also find that under Code § 65.1-30, an employee may claim against any statutory employer in the ascending employment hierarchy who receives timely notice as required by statute. Accordingly, we find no error in the award of benefits against Wagner, and we affirm the commission's decision.

Brooks, a carpenter's helper, was injured on April 26, 1988 when he shot a nail into the base of his thumb while operating a nail gun. Seward, his immediate employer, was not present on the site, so Brooks went to the Wagner Enterprises trailer where Ron Wagner helped him wash off the wound and tape it with a napkin. Brooks resumed work and received no medical assistance for the injury until July 1, 1988 when he went to the Alexandria Hospital emergency room. The deputy commissioner found that, although the record was not clear, it reflected that Brooks had problems with his hand for approximately six weeks prior to going to the hospital. His hand finally became infected to the point where he could no longer use it.

Brooks did not give written notice of his accident within thirty days to any of his employers. However, the commission found that Wagner had received actual notice of the accident almost concurrent with its happening.

Upon seeing several physicians, and after an open biopsy of his left wrist was performed, Brooks was diagnosed as having septic arthritis in his left wrist. Brooks last worked for Seward on June 14, 1988. He testified that he did some drywall work in September, 1988 but quit because his wrist condition rendered him unable to do the work adequately.

Brooks further testified that he never told Ellis about the injury because he did not know that he was supposed to, but did tell Seward about it on either April 26, 1988 or April 27, 1988. Seward, however, testified that he did not know anything about Brooks' accident until July 25, 1988 when his wife informed him of this fact based on a letter Brooks had written concerning a dispute over the amount of his final paycheck. Mrs. Seward testified that, following receipt of Brooks' letter, she telephoned him, and at that time Brooks told her that Seward had helped him clean out the wound at the time of the injury and had refused to take him to the hospital. Graham Edward Ellis testified that he was first notified of the accident on July 25, 1988 or July 26, 1988. He stated that he then contacted Ron Wagner, who could not remember the incident. The evidence also showed that one day before Brooks' accident, a co-worker was injured in a similar incident and was taken by Seward to the hospital.

Ralph Lee, an employee of Olympic Development Corporation, who was hired by Wagner to work on the Wagner job site, testified that he helped Ron Wagner clean Brooks' wound on the day of the accident. Lee further testified that he informed Seward and Ellis of the injury within seven working days of the accident.

Ron Wagner testified that, while he remembered giving help to one of Seward's employees who had shot a nail into his thumb, he could not remember that person's appearance or name. Wagner also testified that because he knew accident forms had to be filled out by sub-contractors, he believed he mentioned the incident to both Ellis and Seward within "a couple of weeks" after it occurred, although he could not remember any specific details.

After reviewing all of the evidence given at two hearings, the deputy commissioner entered an award against Wagner because it had actual notice of the injury within the thirty day notice period required by Code § 65.1-85. However, the deputy commissioner dismissed the claim as to Ellis and Seward, finding that neither had been provided timely notice of the injury, and that they had been prejudiced as a result because Brooks' disability resulted from an infection which developed due to a lack of treatment. The deputy commissioner also found that an employee may claim against any statutory employer in the ascending employment hierarchy, and that therefore, Brooks' claim against Wagner was valid even though Ellis was his first statutory employer going up the employment scale. On review, the full commission affirmed the findings of the deputy commissioner as to notice to Wagner and lack of notice to Ellis and Seward. It did not reach the issue of prejudice, however, since it found that Brooks had failed to establish a reasonable excuse for failure to notify Ellis and Seward as required by the statute. The commission also found that an employee may claim against any statutory employer in the ascending hierarchy of employment and therefore, it held that Brooks' claim against Wagner was valid. This appeal followed.

On appellate review, the factual findings of the commission are binding if they are supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va.App. 512, 515, 382 S.E.2d 487, 488 (1989). The fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's finding. Franklin Mortgage Corp. v. Walker, 6 Va.App. 108, 110-11, 367 S.E.2d 191, 193 (1988) (en banc). In determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses. Jules Hairstylists, Inc. v. Galanes, 1 Va.App. 64, 69, 334 S.E.2d 592, 595 (1985).

In the case before us, the commission found that Ellis and Seward did not receive notice of Brooks' injury within thirty days of the accident. The employer argues that this factual finding is not supported by credible evidence. We disagree. Brooks testified that he did not report his injury to Ellis. Ellis testified that he did not learn of Brooks' injury until July 25, 1988 or July 26, 1988, approximately two months after the injury had occurred. Although Ralph Lee testified that he had informed Ellis of the injury within the statutory period, Ellis denied that Lee had done so. Ron Wagner testified that he had a general recollection that he had told Ellis of Brooks' injury within "a couple...

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