Batal Builders, Inc. v. Hi-Tech Concrete, Inc.
| Decision Date | 24 May 1994 |
| Docket Number | No. 1571-93-4,HI-TECH,1571-93-4 |
| Court | Virginia Court of Appeals |
| Parties | BATAL BUILDERS, INC. and American Alliance Insurance Company v.CONCRETE, INC., Planet Insurance Company, P & P Construction, The Uninsured Employer's Fund, and Jose Antonio Portillo. Record |
William H. Schladt, Gaithersburg (Ward, Klein & Miller, on briefs), for appellants.
Kathryn A.K. Untiedt, Fairfax (John K. Coleman, Slenker, Brandt, Jennings & Johnson, Merrifield, on brief), for appellees Hi-Tech Concrete and Planet Ins. Co.
Paul S. Stahl, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., John J. Beall, Jr., Sr. Asst. Atty. Gen., on brief), for appellee Uninsured Employer's Fund.
William S. Sands, Jr., Fairfax (Hanno I. Rittner, McChesney, Duncan & Dale, on brief), for appellee Jose Antonio Portillo.
No brief or argument for appellee P & P Const.
Present: COLEMAN and FITZPATRICK, JJ., and HODGES, * Retired Judge.
In this workers' compensation case, Batal Builders, Inc. and its insurance carrier, American Alliance Insurance Company, (Batal) appeal the commission's decision that Batal was the sole statutory employer liable for injuries sustained by Jose A. Portillo (claimant). See Code § 65.2-302. On appeal, Batal argues that the commission erred by finding: (1) that claimant had a reasonable excuse for his failure to provide timely notice of his injury to his statutory employers; (2) that Batal was not prejudiced by the untimely notice; (3) that Hi-Tech Concrete, Inc. (Hi-Tech), the first statutory employer in the ascending chain, was prejudiced by the untimely notice and, thus, was not liable for claimant's injury. For the reasons set forth below, we affirm the commission's finding that claimant provided a reasonable excuse for the delay in notification. However, we find no evidence that either statutory employer was prejudiced by the delay in notification.
Batal was the general contractor at the Cross-Point construction site in Lorton, Virginia, where claimant was injured. Batal subcontracted its concrete work at the site to Hi-Tech, who in turn subcontracted work to P & P Construction (P & P), claimant's direct employer. On June 23, 1990, claimant, while working for P & P, was injured when a piece of metal flew into his right eye, causing him to fall to the ground with his eye bleeding. Claimant immediately reported this injury to his supervisor at P & P, who took him to the hospital for treatment. Two months after the accident, claimant's attorney informed him that P & P did not have workers' compensation insurance. P & P subsequently filed for bankruptcy protection.
Claimant sustained permanent loss of use of his right eye as a result of the June 23, 1990, industrial accident. The extent of claimant's injury and the amount of benefits awarded by the commission are not challenged on appeal. Rather, Batal argues that claimant's entitlement to compensation is barred because of his failure to provide timely notice of his injury to his statutory employers and because of the resulting prejudice to Batal caused by such failure. See Code § 65.2-600. In the alternative, Batal argues that if claimant is not barred from receiving compensation, Hi-Tech, claimant's immediate statutory employer, should be liable for any award or should indemnify Batal. Neither Batal nor Hi-Tech received notice of claimant's injury until approximately two years after the date of the accident.
The commission found that claimant had a reasonable excuse for his failure to give timely notice to Batal and Hi-Tech. Code § 65.2-600 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.
* * * * * *
D. No compensation or medical benefit shall be payable unless such written notice is given within thirty 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.
It is well settled that when a claim is made against both actual and statutory employers, notice to each employer is required pursuant to Code § 65.2-600. 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). It is undisputed that claimant did not inform his statutory employers of his injury until approximately two years after the accident.
On appeal, we view the evidence in the light most favorable to the party prevailing below. Crisp v. Brown's Tysons Corner Dodge, 1 Va.App. 503, 504, 339 S.E.2d 916, 916 (1986). Findings of fact made by the commission are binding on this Court if they are supported by credible evidence. Code § 65.2-706; Jules Hairstylists, Inc. v. Galanes, 1 Va.App. 64, 68, 334 S.E.2d 592, 595 (1985).
The evidence presented at the evidentiary hearing before the commission proved that claimant immediately reported his injury to his supervisor at P & P. P & P informed claimant that he was covered by their insurance policy and that notice to them was all he had to do to be covered. Claimant had only eight years of education in El Salvador and did not speak English. From this evidence, the commission found that claimant had satisfied his burden of proving a reasonable excuse for the delay in giving notice to his statutory employers. When this evidence is viewed in the light most favorable to claimant, we find that it provides the credible evidence necessary to support the commission's finding of reasonable excuse. Accordingly, we affirm the commission's decision on this issue.
PREJUDICE CONTEMPLATED BY CODE § 65.2-600(D)
In this case of first impression, we must decide whether the prejudice contemplated by Code § 65.2-600(D) includes the economic loss suffered by a statutory employer because of an inability to obtain indemnification from claimant's direct employer. The commission found that Hi-Tech was prejudiced by claimant's failure to provide timely notice of his injury, but that Batal was not similarly prejudiced. Hi-Tech presented evidence that after the date of claimant's accident, P & P continued to work for Hi-Tech, but that before Hi-Tech received notice of claimant's injury they had already made full payment to P & P. P & P has since filed for bankruptcy protection, effectively preventing Hi-Tech from obtaining indemnification.
The commission found that the economic loss Hi-Tech would suffer by its inability to seek indemnity from P & P, claimant's direct employer, for any award Hi-Tech paid to claimant was sufficient "prejudice" under Code § 65.2-600(D) to justify discharging Hi-Tech's liability as a statutory employer. The evidence shows, however, that Hi-Tech continued to work for Batal after the date of claimant's accident, but that Batal had already made full payment to Hi-Tech before receiving notice of claimant's injury. Accordingly, both statutory employers were similarly situated, in that they were unable to withhold payments from their subcontractors to satisfy any liability due claimant.
Under Code § 65.2-600, after a claimant provides a reasonable excuse for the delay in notification, the employer has "the burden of showing prejudice caused by the delay." Westmoreland Coal Co. v. Coffey, 13 Va.App. 446, 448, 412 S.E.2d 209, 211 (1991); Maryland Casualty Co. v. Robinson, 149 Va. 307, 311, 141 S.E. 225, 226 (1928). In this case, it is undisputed that claimant received prompt and appropriate...
To continue reading
Request your trial
-
Fairfax County Sch. Bd. v. Horgan
...delay in notification, the employer has 'the burden of showing prejudice caused by the delay.'" Batal Builders, Inc. v. Hi-Tech Concrete, Inc., 18 Va. App. 401, 406, 444 S.E.2d 555, 558 (1994) (quoting Coffey, 13 Va. App. at 448, 412 S.E.2d at 211). Here, the commission found that the emplo......