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Falls Church Construction Corp. v. Valle12/12/1995
o August of 1994, the month of the deputy commissioner's hearing. Claimant worked as an announcer on a Spanish speaking radio station for three weeks in September and October 1993 and also delivered newspapers with his family.
Claimant's compensation claim, filed on July 26, 1993, alleged various degrees of work incapacity from June 24, 1993 to July 31, 1994, not counting certain periods during which he secured employment. After Falls Church Construction and its insurer were added as defendants, but prior to the deputy commissioner's hearing, Falls Church Construction asserted that it was improper to proceed without American Inner Wall's insurer, the Maryland Fund. The commission overruled Falls Church Construction's request to join the Maryland Fund as a party.
The deputy commissioner and the full commission found: (1) claimant sustained an injury by accident on June 23, 1993, (2) he was entitled to benefits, (3) he adequately marketed his residual work capacity, (4) he did not obstruct medical treatment, and (5) American Inner Wall was uninsured for claimant's compensable injury. On the issue of insurance, the commission noted that American Inner Wall did not demonstrate coverage by an insurance carrier authorized and licensed to do business in Virginia over which the commission could exercise jurisdiction, as required by Code § 65.2-801. Therefore, Falls Church Construction was liable for claimant's injuries as his statutory employer.
II.
IMMEDIATE EMPLOYER'S INSURANCE
We hold the commission did not err in deciding that American Inner Wall was uninsured in Virginia and that Falls Church Construction was therefore liable as the statutory employer. See Code § 65.2-302; Sites Constr. Co., Inc. v. Harbeson, 16 Va. App. 835, 434 S.E.2d 1 (1993)(stating employees of an uninsured sub-contractor may look to the general contractor/statutory employer for coverage).
Code § 65.2-801 dictates the various methods by which an employer must insure its employees for injuries covered by the Virginia Workers' Compensation Act. Code § 65.2-801(A) states:
Every employer subject to this title shall secure his liability thereunder by one of the following methods:
1. Insuring and keeping insured his liability in an insurer authorized to transact the business of workers' compensation insurance in this Commonwealth;
2. Receiving a certificate pursuant to § 65.2-808 from the Workers' Compensation Commission authorizing such employer to be an individual self-insurer; or
3. Being a member in good standing of a group self-insurance association licensed by the State Corporation Commission.
Nothing in the record establishes that American Inner Wall met the requirements of subsections (A)(2) or (3), because American Inner Wall was neither self-insured nor a member of a group self-insurance association. Thus, American Inner Wall was obligated to meet the requirements of subsection (A)(1)--to insure "liability in an insurer authorized to transact the business of workers' compensation insurance" in Virginia.
American Inner Wall did not meet this requirement because, according to the commission's records, the Maryland Fund is not an insurer authorized to transact the business of workers' compensation insurance in Virginia. The State Corporation Commission/Department of the Bureau of Insurance
notified the commission that the Maryland Fu
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