Wagner Enterprises, Inc. v. Brooks

Citations: 407 S.E.2d 32; 12 Va. App. 890; 8 Va. Law Rep. 213; 1991 Va. App. LEXIS 159Docket: Record No. 1284-90-4

Court: Court of Appeals of Virginia; July 1, 1991; Virginia; State Appellate Court

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Wagner Enterprises, Inc. and Assurance Company of America (Wagner) appealed a commission's ruling that awarded compensation benefits and medical expenses to Mark R. Brooks. The commission determined that Wagner, as the general contractor, was liable for Brooks' benefits due to actual notice of his injury, in accordance with Code § 65.1-30. However, it found that Brooks' immediate employer, Charles R. Seward, and subcontractor Ed Ellis Carpentry were not liable since they did not receive timely notice of the injury as required by Code § 65.1-85, and Brooks failed to provide a reasonable excuse for this lack of notice.

The appeal raised three issues: whether the commission erred in determining that Seward and Ellis did not receive timely notice, whether Brooks had a reasonable excuse for not notifying them, and whether Wagner should be held liable given Ellis was the first insured statutory employer in the hierarchy. The court affirmed the commission's findings, noting credible evidence supported that Ellis and Seward were not timely notified and that Brooks did not have a valid excuse. It upheld that, under Code § 65.1-30, an employee can claim against any statutory employer in the hierarchy who receives timely notice.

Brooks, a carpenter's helper, was injured on April 26, 1988, when he shot a nail into his thumb. He did not seek medical assistance until July 1, 1988, despite experiencing ongoing issues. Although Brooks did not provide written notice of his injury within thirty days, Wagner was found to have received actual notice shortly after the incident. Brooks testified he informed Seward about the injury soon after it occurred but did not inform Ellis, believing he was not required to do so. Ultimately, the commission's decision to award benefits to Brooks was affirmed.

Seward was unaware of Brooks' accident until July 25, 1988, when informed by his wife, who learned of it through Brooks' letter regarding a paycheck dispute. Mrs. Seward conveyed that Brooks claimed Seward had helped clean his wound and refused to take him to the hospital. Graham Edward Ellis first learned of the accident on July 25 or 26, 1988, and subsequently contacted Ron Wagner, who could not recall the incident. Evidence indicated that a day prior to Brooks' accident, another co-worker was injured and Seward had taken him to the hospital. Ralph Lee, an employee at the site, testified he assisted in cleaning Brooks' wound and informed Seward and Ellis within seven working days. Wagner recalled providing aid to another employee but did not remember specifics about Brooks. He believed he had mentioned the incident to Ellis and Seward a couple of weeks later, despite lacking details.

After reviewing the evidence from two hearings, the deputy commissioner awarded a claim against Wagner for having actual notice of the injury within the statutory thirty-day period, but dismissed the claim against Ellis and Seward due to lack of timely notice, which prejudiced them as Brooks' disability stemmed from an untreated infection. The deputy commissioner also ruled that Brooks could claim against any statutory employer in the employment hierarchy, validating his claim against Wagner even though Ellis was his first statutory employer. The full commission upheld the deputy commissioner's findings regarding notice but did not address the issue of prejudice, asserting that Brooks failed to show a valid reason for not notifying Ellis and Seward as required. The commission affirmed Brooks' claim against Wagner. On appeal, the commission's factual findings are binding if supported by credible evidence, and contrary evidence does not negate this support. The commission concluded that Ellis and Seward did not receive notice of Brooks' injury within the required timeframe, a conclusion the employer contested but was found to be supported by credible evidence, including Brooks' own testimony that he had not reported the injury to Ellis.

Ellis testified that he became aware of Brooks' injury on July 25 or 26, 1988, approximately two months after it occurred. Although Ralph Lee claimed he informed Ellis within the statutory notice period, Ellis denied this. Ron Wagner recalled telling Ellis about the injury within "a couple of weeks." The commission found Ellis's and Brooks' testimonies credible, supporting the conclusion that Ellis did not receive timely notice. This finding will not be disturbed on appeal.

Similarly, credible evidence indicated that Seward did not learn of Brooks' injury until July 25, 1988, via a letter from Brooks. Despite conflicting testimonies from Lee and Wagner, the commission upheld Seward's and his wife's account, affirming that Seward did not receive notice within the required thirty-day period.

Wagner contended that the commission erred in determining that Brooks did not provide a reasonable excuse for failing to notify Ellis and Seward of the injury. The commission did not address the issue of prejudice, as it found that Brooks failed to establish a reasonable excuse for the delay. Brooks claimed ignorance about the need to notify Ellis and did not view him as his boss; however, he acknowledged that Ellis had a supervisory role. The commission concluded that Brooks did not meet his burden of proof regarding a reasonable excuse for failing to notify either Ellis or Seward.

Furthermore, Brooks argued that he had given Seward timely notice, which precluded him from establishing a reasonable excuse. The commission found no error in this determination. Lastly, Wagner's argument about being excused from notifying Ellis and Seward due to the injury's perceived minor nature was not raised before the commission and is therefore not addressed.

The commission properly held Wagner, the general contractor, liable for compensation benefits despite Ellis being the first insured subcontractor above Brooks in the employment hierarchy. Ellis did not receive timely notice of Brooks' injury, which is a requirement under Code § 65.1-85 applicable to both actual and statutory employers. Wagner argued that an injured employee could only claim against the first insured statutory employer in the hierarchy, asserting that because Ellis was above Brooks, Wagner should not be liable. However, the court dismissed this argument, referencing the intent of statutory employer statutes as explained in Sykes v. Stone, Webster Engineering Corporation, which aims to ensure that all contractors and subcontractors above an injured employee are liable. Wagner had timely notice and the responsibility to ensure Brooks received medical treatment and to notify Ellis and Seward of the injury, thus could not evade liability. The issue of whether Wagner could seek indemnification from Ellis and Seward was not addressed, as it was not part of the commission's proceedings. The commission's decision was affirmed.