Uninsured Employer's Fund v. William Marsh

• Court: Court of Appeals of Virginia
• Decided: June 10, 1997
• Docket: 2604964
• Status: Unpublished

Opinion

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

3 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.