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Falls Church Construction Corp. v. Valle12/12/1995
nd was not a licensed "carrier" included in the Bureau of Insurance's list of companies licensed to transact insurance business in Virginia. See Code §§ 38.2-1024, 38.2-1027 (stating no insurer shall transact business in Virginia until it has obtained the appropriate license from the State Corporation Commission and has met other requirements concerning company organization). Furthermore, the commission noted that the Bureau of Insurance said the Maryland fund is not a commercial insurance company, but rather a Maryland state agency which acts as an insurer of last resort for businesses operating in Maryland. Compare Code § 65.2-1203 (setting forth the procedure by which the Virginia Uninsured Employer's Fund acts as an insurer for uninsured employers).
Falls Church Construction asserts that when an employer fails to comply with one of Code § 65.2-801's methods of securing liability, civil or criminal penalties are the appropriate methods of redress. See Code § 65.2-805 (assessing civil penalties); Code § 65.2-806 (assessing criminal penalties). A close reading of Code §§ 65.2-805 and -806 reveals that the respective penalty provisions apply when an employer fails to comply with the record keeping requirements of Code § 65.2-804, not the requirements of Code § 65.2-801. We do not believe, nor does Falls Church Construction offer support for its contention, that penalties are also the appropriate method of redress for an employer that has failed to secure its liability under one of the three methods prescribed by Code § 65.2-801.
Falls Church Construction also attempts to support its position with three commission opinions issued twenty years ago, each of which involved an immediate employer and its insurance company denying insurance coverage. Priest v.
Harrison, 56 O.I.C. 257 (1975); Poston v. Evans, 56 O.I.C. 253 (1975); Johnson v. Hensil Farlow Constr. Co., Inc., 56 O.I.C. 188 (1975). Not only are these decisions not binding on this Court, but none includes facts involving an insurer unauthorized to transact the business of workers' compensation insurance in Virginia.
Therefore, we cannot say the commission erred in determining that American Inner Wall was uninsured in Virginia for purposes of the Virginia Workers' Compensation Act and that the statutory employer, Falls Church Construction, was liable for claimant's benefits. Nevertheless, we emphasize that nothing in the commission's decision, or in this Court's decision, is meant to foreclose other avenues of redress Falls Church Construction may have in the Maryland courts or commission or other appropriate forums.
III.
MERITS OF THE CLAIM
Falls Church Construction argues claimant did not suffer an injury arising out of and in the course of his employment.
On appellate review, we view the evidence in the light most favorable to the prevailing party below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "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." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)(citation omitted). To recover benefits, the claimant must establish by
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