Legal Summaries Contents            Home Page Contents

JURISDICTION

See Employee

"All questions arising under [the Workers' Compensation Act ("the Act")] . . . shall be determined by the Commission . . .." Code Sec. 65.2-700. "This grant of subject matter jurisdiction includes the authority of the commission to enforce its orders and to resolve coverage and payment disputes." Bogle Development Co. v. Buie, 250 Va. 431, 434, 463 S.E.2d 467, 468 (1995).

"All questions arising under [the Workers' Compensation Act ("the Act")] . . . shall be determined by the Commission . . . ."   Code Sec. 65.2-700. "This grant of subject matter jurisdiction includes the authority of the commission to enforce its orders and to resolve coverage and payment disputes." Bogle Development Co. v. Buie, 250 Va. 431, 434, 463 S.E.2d 467, 468 (1995). Code Sec. 65.2-714(A) provides the commission exclusive jurisdiction over all disputes concerning payment of the fees or charges of physicians and hospitals. Moreover, an employer has a statutory duty to provide an employee with free medical care related to a compensable injury. Code Sec. 65.2-603(A). The commission properly found that it had subject matter jurisdiction because the Center's application concerned employer's duty to pay medical expenses related to claimant's compensable injury. In Bogle, the Supreme Court ruled that the commission did not have  jurisdiction to consider the reimbursement claim of a private health insurance carrier after the employer had reimbursed the employee for his out-of-pocket payment for his medical expenses. Bogle, 250 Va. at 434, 463 S.E.2d at 468-69. The Court ruled that the commission lacked jurisdiction to consider a claim by the employee's insurer against the employer for reimbursement of the insurer's expenses because "no right of the [employee] was 'at stake.'" Id. Once the employer reimbursed the employee, the litigants were left to common law remedies in resolving the issue whether the employer had to reimburse the employee's private health insurance carrier. Id. In this case, unlike Bogle, the employee's rights were at stake. If claimant's reasonable and necessary medical bills were not paid by the employer, he would be personally liable for them.  Claimant had the right, pursuant to the Act, the commission's award, and the settlement order, to have his causally related medical expenses paid by employer. Claimant joined the Center's application as a party and sought to require employer to abide by its duty to pay his causally related medical expenses. Moreover, employer does not challenge the commission's ruling that the medical expenses incurred by claimant at the Center were necessary, reasonable, and causally related to his compensable injury by accident.  The commission did not have before it a request for reimbursement by a private health insurance company. Rather, the commission had before it a dispute among a medical care provider, an employee, and an employer concerning whether the employer was responsible for payment of Lafon's medical expenses. Such a dispute falls squarely within the commission's sole jurisdiction provided for under the Act. Code Sec. 65.2-714. Accordingly, the commission did not err in exercising jurisdiction over the Center's application. Combustion Engineering, Inc. v. Ernest R. Lafon, Jr. and Center for Rehabilitative Medicine, Record No. 2327-95-3 (April 9, 1996).

"Generally, the Commission's jurisdiction is limited to those issues which are directly or necessarily related to the right of an employee to compensation for a work-related injury." Hartford Fire Ins. Co. v. Tucker, 3 Va. App. 116, 120, 348 S.E.2d 416, 418 (1986). The civil rights issues raised by claimant of termination for refusing to sign a consent form for drug testing and the relief sought, reinstatement of employment, do not fall within the purview of the commission's jurisdiction. Accordingly, the commission did not err in holding that it had no jurisdiction over those issues. Ned N. Cary, Jr. v. Anheuser-Busch, Inc., Record No. 2179-99-1 (November 9, 1999). WP Version.

    The Workers' Compensation Commission (commission) did not err in finding that the Huntington Blizzard ice hockey team (employer) did not have more than three employees regularly in service within the Commonwealth of Virginia as required by Code Sec. 65.2-101 and was, therefore, not subject to the Workers' Compensation Act (Act).  Employer's team offices and home ice rink were located in Huntington, West Virginia.  Employer maintained no office in Virginia, and no employees lived in Virginia.  In October, 1999, claimant signed his employment contract at the team's offices in West Virginia.  Pursuant to the terms of the contract, employer paid claimant's salary, rent for his apartment in West Virginia and utilities.  No evidence showed employer maintained workers' compensation insurance in the Commonwealth, thus the Uninsured Employer's Fund was a party to the proceeding.  Of  seventy-one regular season games, fourteen games were against Virginia teams and nine of those fourteen games were played at locations in Virginia.  The other games were played in Ohio, New Jersey, West Virginia, Illinois, Florida, Arkansas, and North Carolina.  All three playoff games were played in Virginia. On April 12, 2000, claimant injured his left leg during a playoff game against the Hampton Roads Admirals in Virginia.
    Code Sec. 65.2-101 provides in pertinent part, that "'[e]mployee' means . . . [e]very person, including aliens and minors, in the service of another under any contract of hire or apprenticeship, written or implied, whether lawfully or unlawfully employed."  It further provides, however, that "'[e]mployee' shall not mean . . [e]mployees of any person, firm or private corporation . . . that has regularly in service less than three employees in the same business within this Commonwealth . . . ."  Code Sec. 65.2-101.  Under this statute "once an employee proves that his or her injury occurred while employed in Virginia, an employer has the burden of producing sufficient evidence upon which the commission can find that the employer employed less than three employees regularly in service in Virginia."  Craddock Moving & Storage Co. v. Settles, 16 Va. App. 1, 2, 427 S.E.2d 428, 429 (1993), aff'd per curiam, 247 Va. 165, 440 S.E.2d 613 (1994).  "Whether a person is an 'employee' and whether an employer has three or more employees 'regularly in service' are pivotal determinations in deciding if an employer is subject to the Act."  Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448 (1987).
    Claimant contends that the commission erred in finding his injury was not covered by the Act.  The precise issue to be determined in the instant case is whether the term "regularly in service . . . within this Commonwealth" applies only to the number of employees required for coverage under the Act or whether it also applies to the amount of contact necessary to trigger coverage.  The commission correctly held that "regularly in service . . . within this Commonwealth" applies both to the number of employees required and the character of the business.  In the instant case and several others, the commission has interpreted the term "regularly in service . . . within the Commonwealth" to apply not only to the number of employees engaged in performing the employer's established mode of work, but also, to require that the character of the business' "contacts and activities" within the Commonwealth be more than "irregular or merely occasional" to allow jurisdiction over the claim.   See Johnson v. M.S. Carriers, VWC File No. 170-96-38 (March 24, 1998), aff'd, Johnson v. M.S. Carriers, Record No. 0907-98-3 (Va. Ct. App. January 12, 1999); Whitley v. Cardinal Freight Carriers, Inc., VWC File No. 166-03-27 (November 9, 1994).  The plain statutory requirement of at least three employees working with some degree of regularity within the Commonwealth is the triggering mechanism.  The court in Craddock implicitly discussed the issue of the necessity for certain "minimum contacts" to establish jurisdiction under the Act.  In Craddock, the court held that credible evidence supported the commission's exercise of jurisdiction because the evidence established the sufficient number of employees and the requisite minimum contacts.  16 Va. App. at 4, 427 S.E.2d at 431.  Unlike the instant case, the employees were hired in Virginia and the totality of their work for employer was completed in Virginia.  In the instant case, it is uncontested that employer had more than three full-time employees.  However, the character of employer's business within the Commonwealth was limited to twelve to fifteen days during the season and was not regular or ongoing.  Thus, the character of this business was such that its contacts with Virginia were occasional and irregular.  Therefore, credible evidence supports the commission's finding that the contacts were insufficient to meet the "regularly in service . . . within this Commonwealth" requirement of Code Sec. 65.2-101.  Curtis Bois v. Huntington Blizzard, Record No. 0839-02-4 (November 19, 2002).  WP Version.

The uninsured motorists statute, Code Sec. 38.2-2206, does not permit the personal representative of a deceased employee to prosecute a common-law action against the statutory employer and a fellow servant, as well as two uninsured motorist carriers, and collect a judgment from the insurers because of the exclusive remedy provision of the Workers' Compensation Act (the Act). Code Sec. 65.2-307 (rights and remedies granted to employee for payment of workers' compensation on account of death by accident exclude all other rights and remedies of employee's personal representative at common law on account of such death). Decedent was operating a dump truck for his employer, a subcontractor, at a construction site. A mobile crane owned by another subcontractor was being operated by its employee, defendant Gunn. As a result of the alleged negligence of Gunn, the crane "toppled over," crushing the truck's cab and causing decedent's death. The administrator sued the owner of the crane (the decedent's statutory employer) and its employee Gann (the decedent's fellow servant), and also joined as defendants the uninsured motorist carrier for the crane and decedent's personal vehicle. The Supreme Court held that the alleged tortfeasors, the owner of the crane and its employee Gunn, are not subject to a common-law judgment in an action by the decedent's administrator, due to the exclusive remedy provision of the Act. Because the Act afforded the exclusive remedy against the decedent's statutory employer, the owner of the crane and a fellow servant, the decedent's statutory beneficiaries under the wrongful death statutes are not legally entitled to recover damages against them. The uninsured motorist statute requires motor vehicle liability policies to contain provisions undertaking to pay "the insured all sums that he is legally entitled to recover as damages" from an uninsured motorist. Code Sec. 38.2-2206(A). Thus, a condition precedent to the insurers' liability under the uninsured motorist statute was not met. The amendment to the uninsured motorist statute that an "uninsured motor vehicle" "means a motor vehicle for which . . . (v) the owner or operator of the motor vehicle is immune from liability for negligence under the laws of the Commonwealth or the United States, in which case the provisions of subsection F shall apply and the action shall continue against the insurer," Code Sec. 38.2-2206(B), does not apply. Terms such as "immune" contemplate total exemption from tort liability, such as that generally enjoyed by state and local governments. In the present situation, the alleged tortfeasors were not exempt from liability. Rather, they, and their workers' compensation insurance carrier, were strictly liable to the plaintiff for payment of workers' compensation benefits. Code Sec. 38.2-900, contained within the insurance title of the Code, provides: "the provisions of this title shall not amend or repeal any provisions of Title 65.2 relating to workers' compensation." Therefore, the exclusive remedy provision of the Act is not affected by the amendments to the uninsured motorist statute. Welch v. Miller and Long Co. of Maryland, Record No. 982534 (November 5, 1999). WP Version.

The commission has jurisdiction if an employer, considering the nature and character of its business and the established mode of conducting it, regularly has in service in Virginia three or more employees, whether full or part time or temporary. See Smith Construction v. Weber, 3 Va. App. 379, 350 S.E.2d 213 (1986); Bills v. Hi Tech Polishing, 74 O.W.C. 126 (1995). Temporary fluctuations in the number of employees does not enable the employer to avoid the jurisdiction of the Act. Bills v. Hi Tech Polishing, 74 O.W.C. 126 (1995). In farming employment, an employer must have more than two full-time employees regularly in service. Sec. 65.2-101, "Employee" (2) (g).

In determining jurisdiction, the commission counts the total number of persons employed on the job by the contractor and all subcontractors. Smith Construction v. Weber, 3 Va. App. 379, 350 S.E.2d 213 (1986).

The purpose of the Workers' Compensation Act is to protect "employees." See Rust Eng'g Co. v. Ramsey, 194 Va. 975, 980, 76 S.E.2d 195, 199 (1953). However, Code Sec. 65.2-101 exempts certain employers from liability under the Act by excluding from its definition of "employee," "[e]mployees of any person, firm or private corporation . . . that has regularly in service less than three employees in the same business within this Commonwealth . . . ." Corporate officers of IRS, were employees. See Code Sec. 65.2-101. Because claimant was IRS's employee for purposes of determining liability, he was also its employee for purposes of determining the applicability of the Act. See Smith v. Weber, 3 Va. App. 379, 381, 350 S.E.2d 213,214 (1986).

"[O]nce an employee proves that his or her injury occurred while employed in Virginia, an employer has the burden of producing sufficient evidence upon which the commission can find that the employer employed less than three employees regularly in service in Virginia." Craddock Moving & Storage Co. v. Settles,16 Va. App. 1, 2, 427 S.E.2d 428, 429 (1993), aff'd per curiam, 247 Va. 165, 440 S.E.2d 613 (1994). "Whether a person is an 'employee' and whether an employer  has three or more employees 'regularly in service' are pivotal determinations in deciding if an employer is subject to the Act." Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448 (1987). Both full-time and part-time employees who are regularly employed to carry out the trade or business of the employer must be counted in determining the number of employees "regularly in service" to employer. See id. at 258-59, 356 S.E.2d at 448. "[A]ny person hired by the employer to work in the usual course of the employer's business is an `employee' under the Act regardless of how often or for low long he may be employed. Id. at 258, 356 S.E.2d at 448 (citing Hoffer Bros. v. Smith, 148 Va. 220, 226, 138 S.E. 474, 476 (1927)).

"'Employee' means . . . [e]very person . . . in the service of another under any contract of hire or apprenticeship, written or implied, except . . . one whose employment is not in the usual course of the trade, business, occupation or profession of the employer." Both full-time and part-time employees who are regularly employed to carry out the trade or business of the employer must be counted in determining the number of employees "regularly in service" to the employer. "Any person hired by the employer to work in the usual course of the employer's business is an 'employee' under the Act regardless of how often or for how long he may be employed." The number of employees regularly in service of the employer is the number "used to carry out the established mode of performing the work of the business . . . even though the work may be recurrent instead of constant." Smith v. Hylton, 14 Va. App. 354, 356, 416 S.E.2d 712, 714 (1992) (citations omitted). "[O]nce an employee proves that his or her injury occurred while employed in Virginia, an employer has the burden of producing sufficient evidence upon which the commission can find that the employer employed less than three employees regularly in service in Virginia." Craddock Moving & Storage Co. v. Settles, 16 Va. App. 1, 2, 427 S.E.2d 428, 429 (1993), aff'd per curiam, 247 Va. 165, 440 S.E.2d 613 (1994). At various times during the year preceding claimant's injury by accident, employer "'used [three or more employees] to carry out the established mode of performing the work of the business . . . even though the work [might have been] recurrent instead of constant.'" Smith, 14 Va. App. at 386, 416 S.E.2d at 714. Mr. [Jeffrey D. Stewart] was clearly an employee of the corporation by virtue of his status as an officer. The majority of work performed by the business was done by him with the assistance of at least two people. These employees were listed on quarterly reports. Moreover, there were other employees named by him that were not reflected on these reports, specifically, the claimant and Mr. [Crews]. At the time of the claimant's accident, it was anticipated that the claimant, Mr. [Stewart] and Chris [Stewart] would continue to perform similar services for the remainder of the summer break. The direct evidence and inferences drawn from that evidence support the commission's finding that employer regularly employed three or more persons and was, therefore, subject to the commission's jurisdiction. Accordingly, we find as a matter of law that employer failed to sustain its burden of proof. Uninsured Employer's Fund v. Derek M. Kramer, Record No. 0991-99-4 (March 28, 2000). WP Version.

Deciding what constitutes the "trade, business or occupation" of an entity is a mixed question of law and fact. Henderson v. Central Tel. Co., 233 Va. 377, 382, 355 S.E.2d 596,599 (1987). Code Sec. 65.2-302 imposes upon a subcontractor who sub-subcontracts work liability for any compensation which the subcontractor would have been liable to pay had an injured worker been employed directly by the subcontractor. See Sykes v. Stone & Webster Eng'g Corp., 186 Va. 116, 121-22, 41 S.E.2d 469, 471-72 (1947). However, that liability is predicated upon a determination that the sub-subcontractor was engaged in the "trade, business or occupation" of the subcontractor. Code Sec. 65.2-302. Liability under Code Sec. 65.2-302 depends also upon a showing that the subcontractor was in privity with the sub-subcontractor who employed the claimant.

"'Regularly in service' implies more than occasional pick-ups and drop-offs or merely driving through Virginia."   Employer owns terminals in Texas, Tennessee, Georgia, Ohio and West Virginia. The company does not own any facilities in Virginia. However, it leases an office building in Dublin, Virginia where one employee works, and maintains "drop yards" in both Dublin and Chester, where no employees work but loads are frequently picked up and dropped off. More than three OTR drivers use the drop yards in Virginia. The various OTR drivers were dispatched from Tennessee and  traveled nationwide, delivering loads in Virginia and stopping at the "drop yards" on any given day. These drivers do not constitute the third necessary employee for jurisdiction under the Act. In view of this finding, the "all-states" endorsement carried by the employer on its workers' compensation insurance policy does not subject the employer to jurisdiction in Virginia. Glenwood Edward Johnson  v.  M S Carriers, Inc., Record No. 0907-98-3 (January 12, 1999).

Who are "Employees"--See "Employee" above.

Officers of a corporation and members of the Board of Directors, paid or unpaid, are considered employees. Williams v. Warren Association for Retarded Citizens, Inc., 70 O.I.C. 22 (1991).

Partners are not employees of the partnership. Berry v. Fray Berry Construction Co., 58 O.I.C. 21 (1979).

Prisoners are not employees of the Commonwealth or the agency for which they work. Woodward v. Commonwealth of Virginia, 249 Va. 21, 452 S.E.2d 656 (1995).

Volunteers working with no promise or expectation of payment are not employees. Charlottesville Music Center v. McCray, 215 Va. 31, 205 S.E.2d 674 (1974). But see Sec. 65.2-101. "Employee" (1) (l).

Casual employees are not covered by the Act. Employment is casual when not permanent or  periodically regular, but occasional, or by chance, and not in the usual course of the employer's trade or business. Waggle v. Lang, 75 O.W.C. 33 (1996).

Persons who are themselves contractors and subcontractors are not employees. Kramer v. Kramer, 199 Va. 409, 100 S.E.2d 37 (1957).

To be an employee under the Act, a person must be hired to perform a service in the usual course of trade, business or profession of the employer.  Waggle v. Lang, 75 O.W.C. 33 (1996).

Foreign Injuries and Accidents. Under Sec. 65.2-508, the commission has jurisdiction if the contract of employment was made in Virginia, and the employer has a  place of business in Virginia, and the employee was not hired for service exclusively outside of Virginia. See Keller v. North American Van Lines, 73 O.W.C. 11 (1994). The claimant has the burden of proof of jurisdictional facts. Shawver v. B. E. & K. Contractors, 60 O.I.C 392 (1981).

Buenson Division, Aeronca, Inc. v. McCauley, 221 Va. 430, 434 n.2, 270 S.E.2d 734, 736 n.2 (1980) (noting that a new statute with retroactive applicability cannot act to revive a "dead claim"); Dan River, Inc. v. Adkins, 3 Va. App. 320, 326, 349 S.E.2d 667, 670 (1986) (citing Buenson Division, 221 Va. at 434 n.2, 270 S.E.2d at 736 n.2).

If an application for review of a final order of the commission is not made within twenty days of the date of the order, the commission has no jurisdiction to review the matter unless the petitioning party alleges fraud or mistake in the procurement of the award. McCarthy Electric Company, Inc. v. Foster, 17 Va. App. 344, 345, 437 S.E.2d 246, 247 (1993) (citing Code § 65.2­705(A)).

Issue of Subject Matter Jurisdiction Raised at Any Time. Subsequently discovered injuries. The commission lacked jurisdiction to award benefits because claimant failed timely to file a claim for injuries to his neck and back arising from an industrial accident of October 22, 1979. Following the accident the only injuries included in the Memorandum of Agreement executed by the parties in 1979 were to claimant's shoulder and forehead. Claimant filed no claim for benefits for back, neck, arm or leg injuries until more than fifteen years after the compensable accident. Claimant contends the back and neck injuries occurred simultaneously with, rather than subsequent to, the accepted shoulder and forehead injuries. This case is distinguishable from the case in which an employee timely files a claim for all injuries incurred in an industrial accident but subsequently develops additional injuries as a "natural consequence" of the industrial accident. See Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 793-94, 407 S.E.2d 1, 3 (1991). "The right to compensation under [the Workers' Compensation Act] shall be forever barred, unless a claim be filed with the Commission within two years after the accident." Code Sec. 65.1-87, 1975 Va. Acts ch. 471; see Barksdale v. H.O. Engen, Inc., 218 Va. 496, 499, 237 S.E.2d 794, 796-97 (1977) (holding that statute of limitations is part of "substantive right to recover" under Act and, therefore, applicable statute of limitations is one in effect when injury occurs). "This is the notice which activates the right of the employee to compensation and which invokes the jurisdiction of the [Workers' Compensation Commission]." Binswanger Glass Co. v. Wallace, 214 Va. 70, 73, 197 S.E.2d 191, 194 (1973) (construing former Code Sec. 65.1-87). "'The right to compensation under the [workers'] compensation law is granted by statute, and in giving the right the legislature has full power to proscribe the time and manner of its exercise.'" Id. at 73, 197 S.E.2d at 193 (quoting Winston v. City of Richmond, 196 Va. 403, 407, 83 S.E.2d 728, 731 (1954)). It is the intent of Code Sec. 65.1-87 that, within the time prescribed by the section, an employee must assert against his employer any claim that he might have for any injury growing out of the accident. . . . Failure to give such notice within [the statutorily prescribed period] would seriously handicap the employer . . . in determining whether or not there was in fact an injury, the nature and extent thereof, and if related to the accident. The reason for the limitation . . . is a compelling one. Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 853 (1975) (emphases and footnote added) (construing former Code Sec. 65.1-87). Thus, in Shawley, the Court held that the commission lacked subject matter jurisdiction to award benefits for injury to the claimant's right ankle and back, where the only injuries for which he filed a timely claim were to his left ankle and right hip. See id. at 443-44, 219 S.E.2d at 851. The Court subsequently noted that "[j]urisdiction [ordinarily] cannot be conferred on the Commission by consent" and that it comes into being "when 'a claim [is] filed' within two years after the accident." Stuart Circle Hosp. v. Alderson, 223 Va. 205, 208-09, 288 S.E.2d 445, 447 (1982). Claimant filed no claim for benefits for back, neck, arm or leg injuries until more than fifteen years after the compensable accident. Accordingly, the commission lacked subject matter jurisdiction to award medical benefits for these injuries. Although the employer failed to raise the jurisdictional defense in an earlier proceeding in 1995, the doctrine of res judicata provides that "[a] valid, personal judgment on the merits in favor of [a party] bars relitigation of the [s]ame cause of action, or any part thereof which could have been litigated, between the same parties and their privies." Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917, 920-21 (1974) (footnote omitted). However, "[f]or a prior judgment to preclude a subsequent action, . . . the court in the first proceeding must have had jurisdiction over the subject matter of the controversy and the precise issue upon which the judgment was rendered." Lloyd v. American Motor Inns, Inc., 231 Va. 269, 271, 343 S.E.2d 68, 69 (1986) (emphasis added). If a court lacks jurisdiction to render a judgment, the judgment has no preclusive effect. See id. Therefore, the doctrine of res judicata provides no exception to the well accepted principle of law that lack of subject matter jurisdiction may be raised in any court at any time and a judgment rendered by a court lacking subject matter jurisdiction is void ab initio. See Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755-56 (1990). Safeway Stores, Inc. v. Harold E. McGowan, Record No. 0895-99-2 (February 29, 2000). WP Version.

Injury During Exercise Class Aggravated at Employee Health Services. VWC Has Exclusive Jurisdiction. Employee suffered an "injury by accident arising out of and in the course of . . . employment," Code Sec. 65.2-101. Employer arranged for an independent instructor to teach an aerobics class at its Richmond office for the benefit of its employees. Participation in the class by employer's employees was voluntary. Employer advertised the class on its bulletin boards and in its newsletter. It did not charge for the use of its facility, but participating employees were required to pay a fee to the instructor for the class. Claimant participated in the aerobics class during her lunch hour, and, while doing so, developed a severe headache. When Combs' head pain did not subside, she was taken to the Employee Health Services ("EHS") "quiet room" to rest. The "quiet room" is used by employees who become ill at work, or by recuperating employees who have returned to work after an accident or illness and need to rest during the workday. When an employee is using the room, an EHS staff member is required to be in the office, and the employee is to be checked at regular intervals. Claimant was not examined by any medical personnel and was not checked at regular intervals. Two hours later claimant was discovered in a coma-like state. Claimant was taken to the hospital and was diagnosed with intracranial bleeding, a right giant middle cerebral aneurysm, and an intraparenchymal hemorrhage. The aggravation and acceleration of claimant's' pre-existing aneurysm was "an injury by accident arising out of and in the course of her employment", and her action in Circuit Court alleging negligence in employer's operation of EHS was therefore barred by the exclusivity provision of the Act. "An injury is subject to the exclusivity provision of the Act if it is the result of an accident and arises out of and in the course of the employment." Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369, 372, 457 S.E.2d 56, 58 (1995). Thus, the critical inquiry is whether claimant's injury was (1) an injury by accident, (2) arising out of, (3) and in the course of, her employment. See Code Sec. 65.2-101; Briley v. Farm Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835, 836 (1990). If any one of these elements is missing, then claimant's claim is not covered by the Act, Snead v. Harbaugh, 241 Va. 524, 526, 404 S.E.2d 53, 54 (1991), and she can proceed with her personal injury claim in the circuit court. (1) Injury by Accident. This Court recently addressed the requirements of an "injury by accident" in Southern Express v. Green, 257 Va. 181, 509 S.E.2d 836 (1999). There, the Court held that an "injury by accident" occurs when the injury appears "suddenly at a particular time and place[,] and upon a particular occasion[;]" when it is "caused by an identifiable incident [,]or sudden precipitating event[;]" and when the injury results "in an obvious mechanical or structural change in the human body." Id. at 187, 509 S.E.2d at 839. All these factors were present with regard to claimant's injury (the aggravation, exacerbation, and/or acceleration of the aneurysm resulting from the alleged negligent emergency medical care, or lack thereof, that she received from EHS employees after she suffered a severe headache during the aerobics class). According to claimant's Circuit Court Motion for Judgment, the particular time, place, and occasion of her injury was at the EHS "quiet room" in Virginia Power's Richmond office, during the two to three hours that elapsed from when she first developed the headache and was taken to the "quiet room" until she was transported to the hospital. The identifiable or precipitating event was the alleged negligent emergency medical treatment that she received during this span of time. Finally, Combs' paralysis and cognitive brain damage represent the mechanical or structural changes in her body that resulted from her injury. Thus, all the requirements of an "injury by accident" are present in this case. See Winn v. Geo. A. Hormel & Co., 560 N.W.2d 143, 149 (Neb. 1997)(holding that negligent medical treatment at employer's first-aid medical facility may constitute "accident"). (2) Arising out of. The phrase "arising out of" pertains to the origin or cause of an injury. County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989); Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In determining whether an injury arises out of employment, the Virginia Supreme Court has repeatedly quoted with approval the test enunciated in In re Employers' Liab. Assur. Corp., Ltd., 102 N.E. 697 (Mass. 1913). An injury arises "out of" the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Id. at 697; accord Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972); Conner v. Bragg, 203 Va. 204, 208-09, 123 S.E.2d 393, 396-97 (1962); Bradshaw, 170 Va. at 335, 196 S.E. at 686. In Virginia, we apply an "actual risk test," meaning that the employment must expose the employee to the particular danger causing the injury, notwithstanding the public's exposure generally to similar risks. Lucas, 212 Va. at 563, 186 S.E.2d at 64. Thus, if there is a causal connection between Combs' injury and the conditions of her employment, then her injury arose out of her employment. See United Parcel Serv. of Am. v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985) ("An accident arises out of the employment when there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed."). The risk of employment was the alleged negligent emergency medical treatment by EHS personnel, which aggravated her pre-existing aneurysm. Claimant was exposed to this risk or condition of employment solely because she was an employee. The public generally would not have been exposed to the same risk because only employees could utilize EHS. This caser is distinguishable from Taylor v. Mobil Corp., 248 Va. 101, 444 S.E.2d 705 (1994). In Taylor, an employee visited a doctor at his employer's clinic for treatment of a heart condition. The employee ultimately suffered a fatal heart attack at home although the doctor had advised him that he was not suffering from heart disease. Id. at 103-04, 444 S.E.2d at 706-07. This Court concluded that the employee's risk of exposure to negligent treatment by the doctor was not an actual risk of employment because the employee voluntarily opted to use the doctor at the employer's clinic. He was not required to do so by his employer, nor was he treated by that doctor because he became ill at work. Id. at 107, 444 S.E.2d at 708. In contrast, claimant suffered her severe headache while participating in the aerobics class at employer's office. While taking part in that class was not required by employer, EHS personnel treated claimant because of her status as an employee. In fact, the aerobics instructor called EHS when claimant became ill because the EHS coordinator had directed the instructor to do so. Thus, the risk that led to claimant's injury was part of her work environment. See Briley, 240 Va. at 198, 396 S.E.2d at 837. Additionally, "When an injury sustained in an industrial accident accelerates or aggravates a pre-existing condition, death or disability resulting therefrom is compensable under the Workers' Compensation Act." Ohio Valley Const. Co. v. Jackson, 230 Va. 56, 58, 223 S.E.2d 554, 555 (1985). (3) Course of  employment. Claimant's pre-existing aneurysm united with an actual risk of her employment to produce her injury. "The phrase arising `in the course of' [employment] refers to the time, place, and circumstances under which the accident occurred." Johnson, 237 Va. at 183, 376 S.E.2d at 74. "An accident occurs `in the course of the employment' when it takes place within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling duties of his employment or engaged in doing something incidental thereto." Bradshaw, 170 Va. at 335, 196 S.E. at 686; accord Lucas, 212 Va. at 563, 186 S.E.2d at 64; Conner, 203 Va. at 208, 123 S.E.2d at 396. The aggravation of the aneurysm occurred after EHS personnel responded to the call for assistance from the aerobics instructor, during claimant's' period of employment, and at a place where she could reasonably be if she became ill at work, i.e., the "quiet room." The only reason that EHS responded to that call was because claimant was an employee. Thus, claimant "was injured at a place where she was reasonably expected to be while engaged in an activity reasonably incidental to her employment." Briley, 240 Va. at 198, 396 S.E.2d at 837. Her injury therefore occurred "in the course of" her employment. Claimant's injury was an "injury by accident arising out of and in the course of [her] employment." Code Sec. 65.2-101, and is therefore compensable under the Act. Her action in the circuit court is thus barred by Code Sec. 65.2-307 ("The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee . . . on account of such injury . . . ."). Combs v. Virginia Power, Record No. 990534 (March 2, 2000). WP Version.

    The Commission did not err in awarding temporary total and medical benefits to claimant. Claimant is not barred from receiving additional benefits on his Virginia claim because he entered into a full settlement agreement of this claim in Illinois, but employer is entitled to a credit in the amount of the Illinois settlement. Claimant filed a claim for benefits in Virginia, received benefits under that claim and an award order was issued. Claimant also filed a claim for benefits in Illinois, the location of employer's base of operations. The parties entered into a settlement contract in Illinois, the settlement contained language that settled all claims arising from claimant's accident and specifically included the existing, concurrent Virginia claim, claimant accepted and received benefits under the Illinois settlement and the Virginia claim, and  neither party submitted the Illinois settlement documents to the Virginia Workers' Compensation Commission for approval as required by Code Sec. 65.2-701.
    The Illinois Commission did not purport to, and could not have adjudicated the appropriateness of the proposed settlement under the laws of Virginia. The Illinois Commission had no power to approve language in the settlement agreement that purported to foreclose the claimant's right to seek further relief before the Virginia Commission. Pursuant to the Supreme Court's decision in Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980), we are not bound by the Illinois Order under principles of comity.
    The commission refused to retroactively approve the Illinois settlement pursuant to Code Sec. 65.2-701(A), which requires all parties to be in agreement before any settlement can be approved. Claimant did not consent to the commission's approval of the Illinois settlement, see Damewood v. Lanford Bros. Co., 29 Va. App. 43, 509 S.E.2d 530 (1999), and in fact seeks continuing benefits. Without agreement between the parties, the commission did not err in declining to approve the settlement. See id. at 47, 509 S.E.2d at 532.
    The commission did not err in granting employer's affirmative request for a dollar for dollar credit, in the full amount of the settlement paid to claimant in Illinois. The employer is entitled to credit for payments made in another state for the same accident and the same injuries. See Harris v. Otis Elevator, 73 VWC 223, 225 (1994); Cook v. Minneapolis Bridge Construction Co., 43 N.W.2d 792 (Minn. 1950); Spietz v. Industrial Comm'n, 28 N.W.2d 354 (Wis. 1947). United Airlines, Inc. v. Mark F. Fozel, Record No. 0313-00-4 (November 7, 2000). WP Version.

The commission did not err by 1) finding that a de facto award of benefits existed between March 20 and September 14, 1996; and 2) holding that claimant's January 13, 1998 supplemental change in condition application related back to her May 14, 1997 application. Pursuant to the decision in National Linen Service v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987) (en banc), the commission had the authority to determine that a de facto award of benefits existed. Additionally, the County's procedural due process rights were not violated when the commission ruled that claimant's January 13 filing related back to her May 14 application. County of Henrico Public Utilities v. Susan Taylor, Record No. 1214-00-2 (January 23, 2001). WP Version.

    The trial court did not err in ruling that the plaintiff's wrongful death action is barred by Code Sec. 65.2-307, the exclusivity provision of the Virginia Workers' Compensation Act, since the defendant was engaged in an essential part of the work that the employer was required to perform under its contract and defendant is not an "other party" under the Act.  
    Decedent, while in the employ of White Construction Company (White), was killed when he fell from scaffolding on which he was working. The Plaintiff and her two daughters applied for and received workers' compensation benefits from White and its insurer. At the time of the accident, White was the general contractor on a project to repair and replace brick masonry on the exterior of a 12-story building owned by Virginia Commonwealth University (VCU). Pursuant to its contract with VCU, White agreed to "provide and pay for all material, labor, tools, equipment . . . and other services or facilities of every nature whatsoever necessary to execute completely and deliver the Work within the specified time." White had discretion regarding the means and method of completing the contracted work. White engaged another contractor, Safway, to supply and install scaffolding for the project. The subcontract between White and Safway provided the following: THE WORK: Subcontractor shall furnish all supervision, labor, materials, tools, equipment and services, permits, fees, and taxes required by the Contract Documents in the following division(s)/section(s) together with all work reasonably inferable therefrom: - Furnish, engineer and erect all scaffolding per contract document requirements including stair tower to roof and equipment hoist. Erect first two decks for two months. Erect remaining scaffolding to roof for an additional two months. There shall be two working deck levels available at all times and an additional non loaded deck for logistics purposes. There are to be twelve additional deck moves as requested by contractor. Rental time starts when scaffolding is complete and ready for use. The size and height of the scaffolding system required Safway to tie the scaffolding to the building. This was accomplished by drilling into the brick walls and installing anchors. The scaffolding system, however, could support only two working deck levels at one time. Therefore, as work progressed, White called on Safway to remove the walk boards, brackets, and other equipment comprising the working decks and to reassemble them at different locations within the system. All deck moves were performed at White's direction, and Safway provided all labor for the moves. Although the subcontract originally called for Safway to provide on-site labor for twelve deck moves, problems discovered at the site required change orders to cover additional deck moves. Including the extra work required by the change orders, Safway performed over 5,000 man- hours of labor in erecting, modifying, and dismantling the scaffolding system.
    Code Sec. 65.2-307 provides that the rights and remedies granted under the Act "shall exclude all other rights and remedies" of an employee or his estate at common law or otherwise.  The only exception to this exclusivity provision is set forth in Code Sec. 65.2-309(A), which states, in pertinent part, that an employee or his personal representative can maintain an action at law against the person who caused the injury, provided such person is an "other party."  To be an "other party," a defendant must have been a stranger to the trade, occupation, or business in which the employee was engaged when he was injured. See, e.g., Pfeifer v. Krauss Construction Co., 262 Va. 262, 267, 546 S.E.2d 717, 719 (2001); Fowler v. International Cleaning Service, 260 Va. 421, 428, 537 S.E.2d 312, 315 (2000).
    Plaintiff contends that Safway was a stranger to White's work and, therefore, an "other party" subject to suit.  The Plaintiff asserts that, in leasing, delivering, and installing scaffolding, Safway's conduct was merely "an act of delivery by [a] subcontractor and is not tantamount to being engaged in the trade, business or occupation of the general contractor."  The Plaintiff relies on a number of cases in which we have held that a subcontractor that merely delivers materials or equipment to a job site is not engaged in the general contractor's work. See, e.g., Yancey v. JTE Constructors, Inc., 252 Va. 42, 471 S.E.2d 473 (1996); Hipp v. Sadler Materials Corp., 211 Va. 710, 180 S.E.2d 501 (1971); Burroughs v. Walmont, 210 Va. 98, 168 S.E.2d 107 (1969). 
    In Burroughs, the plaintiff, an employee of a trucking company that delivered plasterboard to a construction site, was injured while carrying the materials into one of the houses being constructed by the general contractor. 210 Va. at 99, 168 S.E.2d at 108. The trucking company had agreed to deliver and stack specified quantities of the plasterboard in the rooms in the various houses under construction. Id. at 98, 168 S.E.2d at 108. The plaintiff sued the general contractor to recover for his injuries.  The court held that "the stacking of [plasterboard] in the several rooms constituted the final act of delivery, not an act of construction." Id. at 100, 168 S.E.2d at 108.  Consequently, the plaintiff was not engaged in the general contractor's trade, business, or occupation, and, therefore, the general contractor was an "other party" and subject to being sued. Id., 168 S.E.2d at 109. 
    In Hipp, the plaintiff was injured by an employee of Sadler Materials Corporation (Sadler), a subcontractor engaged to furnish and pour concrete at a job site. The plaintiff was an employee of another subcontractor and was injured when struck by a concrete truck. 211 Va. at 710, 180 S.E.2d at 501. The court held that the plaintiff could maintain an action against Sadler. In so holding, the court explained that "Sadler was required only to deliver concrete where directed, not to spread or finish the concrete," and that, in performing Sadler's obligation, its employee was performing "the final act of delivery, not an act of construction constituting the trade, business or occupation of the general contractor." Id. at 711, 180 S.E.2d at 502.
    Finally, in Yancey, a general contractor was engaged by the Virginia Department of Transportation to design and install a sound barrier along an interstate highway. The general contractor engaged a subcontractor to design, manufacture, and deliver concrete wall panels to the job site. 252 Va. at 43, 471 S.E.2d at 474.  The subcontract also required the subcontractor to provide on-site patching for materials delivered in a damaged condition. Id. at 44, 471 S.E.2d at 475.  The plaintiff, an employee of the subcontractor, was injured while he was inspecting one of the panels for any damage. Id. at 43, 471 S.E.2d at 474.  The court held that the plaintiff was not engaged in the general contractor's trade, business, or occupation when he was injured. In so holding, the court concluded that the plaintiff's inspection and patching activities "were the final acts of delivery required by the contract." Id. at 45, 471 S.E.2d at 475. 
    Safway contends, on the other hand, that, under the facts in the present case, it was not a stranger to White's trade, occupation, or business. Thus, it was not an "other party" subject to being sued. Safway relies primarily upon the court's holding in Rea v. Ford, 198 Va. 712, 96 S.E.2d 92 (1957).  In Rea, a general contractor was engaged to construct a high school building. The general contractor rented from Woodrow W. Ford a crane, an operator, and a helper to hoist into place certain steel trusses necessary for the building's construction. 198 Va. at 713, 96 S.E.2d at 93.  The trusses were fastened to the structure by the general contractor's employees.  While the crane operator was using the crane to position a truss, the truss fell, killing Rea, an employee of the general contractor. Id. at 714, 96 S.E.2d at 93-94.  Rea's widow and personal representative brought a wrongful death action against Ford.  The court held, in Rea, that Ford was not a stranger to the general contractor's business, and, therefore, Rea's personal representative was precluded from suing Ford. The court explained that, "in furnishing the equipment and crew for the purpose of erecting the steel structure[,] Ford was a subcontractor engaged in an essential part of the work which the principal contractor had to do." Id. at 717, 96 S.E.2d at 96. 
    In the present case, the court rejects the Plaintiff's contention that Safway was just a supplier of materials. To the contrary,  Safway's duties extended well beyond mere delivery.  Safway's contract with White required it to design and erect a massive, complex, 14-level scaffolding system, which included an equipment and materials hoist and a stair tower to the roof of the building.  Additionally, Safway was required to provide two working deck levels at all times.  Safway, in fulfilling its contractual obligations, including those imposed by change orders, performed 16 full deck moves and 13 half deck moves.  In erecting, modifying, and dismantling the scaffolding system, Safway provided over 5,000 man-hours of labor. Clearly, Safway was engaged in an essential part of the work that White was required to perform under its contract with VCU. Thus, Safway is not an "other party" under the Act. Therefore, the trial court properly ruled that the Plaintiff is precluded from maintaining a wrongful death action against Safway.  Peck v. Safway Steel Products, Inc., 262 Va. 522, 551 S.E.2d 328 (2001).

    Plaintiff filed a motion for judgment in the trial court against the general contractor, Meredith, the general contractor's superintendent, Bosley, and a sub-sub contractor providing the steel erection work for the project, Atlantic Welding, alleging that he was seriously injured as a result of the defendants' negligence. Plaintiff alleged, among other things, that the defendants were negligent in failing to secure a girt adequately to its brackets, and in failing to warn all others on the construction site that the girt was not properly secured.  The trial court correctly concluded that Meredith was not Plaintiff's statutory employer but was an "other party" subject to being sued by Plaintiff in this common law negligence action. 
    The exclusivity provision of the Act, which is found in Code Sec. 65.2-307, limits the rights and remedies of an employee to those provided in the Act when he and his employer have accepted the provisions of the Act for payment of compensation for accidental injury or death. Fowler v. Int'l Cleaning Serv., Inc., 260 Va. 421, 425, 537 S.E.2d 312, 313 (2000); Stone v. Door-Man Mfg. Co., 260 Va. 406, 412, 537 S.E.2d 305, 307 (2000). However, the exclusivity provision does not bar a common law action for an employee's injury or death against an "other party," as construed under the Act. Code Sec. 65.2-309; Fowler, 260 Va. at 425, 537 S.E.2d at 314; Stone, 260 Va. at 412, 537 S.E.2d at 307-08; Stewart v. Bass Constr. Co., 223 Va. 363, 365- 66, 288 S.E.2d 489, 490 (1982).
    A general contractor is the statutory employer of a subcontractor's injured employee if the employee is engaged in the trade, business, or occupation of the general contractor at the time of his injury. Yancey v. JTE Constructors, Inc., 252 Va. 42, 44, 471 S.E.2d 473, 474 (1996); Sykes v. Stone & Webster Eng'g Corp., 186 Va. 116, 121-22, 41 S.E.2d 469, 472 (1947). However, when an injured employee reaches an employer in the ascending hierarchy of contractors whose trade, business, or occupation does not include the work being performed by the injured employee, that employer is not the statutory employer of the injured employee. Yancey, 252 Va. at 44, 471 S.E.2d at 474; Sykes, 186 Va. at 121-22, 41 S.E.2d at 472.  The Virginia Supreme Court has held repeatedly that a subcontractor's employee who merely delivers materials to a job site is not engaged in the trade, business, or occupation of the general contractor. Yancey, 252 Va. at 44, 471 S.E.2d at 474-75; Hipp v. Sadler Materials Corp., 211 Va. 710, 711, 180 S.E.2d 501, 501-02 (1971); Burroughs v. Walmont, Inc., 210 Va. 98, 100, 168 S.E.2d 107, 108 (1969); see Peck v. Safway Steel Products, Inc., 262 Va. 522, 526, 551 S.E.2d 328, 329-30 (2001).  In contrast, when an injured employee's duties extend beyond delivery of materials to the job site, and the employee performs an act that is an essential part of the work of the general contractor, the injured employee has engaged in the trade, business, or occupation of the general contractor. See Peck, 262 Va. at 528, 551 S.E.2d at 330; Bosher v. Jamerson, 207 Va. 539, 542-43, 151 S.E.2d 375, 377 (1966). 
    The present case is controlled by the decisions in Yancey, Hipp, and Burroughs. In all three cases, the court held that the injured employees were not engaged in the general contractors' trade, business, or occupation because their activities at the respective job sites constituted final acts of delivery, not acts of construction.  In Yancey, the injured employee's final act of delivery included the inspection and patching of concrete panels delivered to the job site. 252 Va. at 45, 471 S.E.2d at 475.  In Hipp, the injured employee was a mere delivery person because he poured concrete where directed by another subcontractor, but did not engage in spreading or finishing the concrete after it was poured. 211 Va. at 711, 180 S.E.2d at 502.  The decision in Burroughs was based on facts remarkably similar to those presented here.  The plaintiff in Burroughs was an employee of a trucking company hired to deliver sheetrock to a construction site and to stack specific quantities of the material in certain rooms of various houses under construction.  The plaintiff was injured while manually carrying some pieces of sheetrock up a stairway in one of the houses. 210 Va. at 99, 168 S.E.2d at 108. The court concluded that the plaintiff's act of stacking the sheetrock in the several rooms constituted a final act of delivery, not an act of construction. Thus, the court held that the plaintiff was not engaged in the general contractor's trade, business, or occupation, and that the general contractor was an "other party" subject to being sued by the plaintiff in a common law negligence action. Id. at 100, 168 S.E.2d at 108-09. 
    Like the plaintiff in Burroughs, Plaintiff was injured while placing sheetrock at a construction site in locations specified by the general contractor and its employees. The nature of the work that Plaintiff performed is not altered by the fact that he used a crane to place the materials at the required locations. His actions remained ones of delivery, not of construction, because when he used the crane to place sheetrock at the specified locations, he did not engage in any other action regarding the sheetrock to further the work of the general contractor. Therefore, the trial court correctly concluded that Meredith was not Plaintiff's statutory employer but was an "other party" subject to being sued by Plaintiff in this common law negligence action.   
    The trial court erred, however in allowing an expert to testify that the defendants violated general provisions of OSHA. In the absence of any specific requirements imposed by OSHA, the expert was permitted to testify, in essence, that the defendants violated OSHA because a serious accident occurred on the job site, and their safety programs and inspections failed to prevent the accident.  Such testimony was analogous to suggesting that the defendants were negligent merely because an accident had occurred.  Thus, this portion of the expert's testimony violated the longstanding principle that negligence cannot be presumed from the mere happening of an accident. See Gossett v. Jackson, 249 Va. 549, 552, 457 S.E.2d 97, 99 (1995); Parham v. Albert, 244 Va. 73, 76, 418 S.E.2d 866, 868 (1992)(quoting Lawrence v. Snyder, 229 Va. 139, 142, 326 S.E.2d 690, 692 (1985)); Sneed v. Sneed, 219 Va. 15, 17, 244 S.E.2d 754, 755 (1978).  Bosley v. Shepherd, Record No. 002735 (Va. S.Ct., November 2, 2001). WP Version.

    In April 1997, plaintiff Gerald Anderson, an employee of a general contractor, Virginia International Terminals (VIT), was injured by the alleged negligence of defendant George A. Dillow, Jr., an employee of defendant subcontractor Waste Management (sued as Waste Management of Hampton Roads and Waste Management of Virginia, Inc.). The accident occurred on the premises of the Norfolk International Terminal (NIT). Subsequently, the plaintiff received workers' compensation benefits from his employer.  Later, the plaintiff filed this action against Dillow and Waste Management seeking recovery for personal injuries sustained in the accident.
    The law upon the issue presented here is settled and has been established in the numerous cases arising under the relevant portions of the Act. Code Sec. 65.2-307 (formerly Sec. 65.1- 40) provides that the rights and remedies granted by the Act to an employee, on account of personal injury or death by accident, exclude all other rights and remedies of such employee, or the employee's personal representative, at common law or otherwise. But an exception to the foregoing exclusivity provision is found in Code Sec. 65.2-309(A) (formerly Sec. 65.1-41). The statute provides that such employee, or the personal representative, is authorized to maintain an action at law against the tortfeasor if the wrongdoer is an "other party" within the meaning of Sec. 65.2-309.
    Even though the broad question here is whether the defendants were "other parties," the precise issue is whether, at the time of the accident, the defendants were strangers to the trade, business, or occupation in which the plaintiff was involved. Whalen v. Dean Steel Erection Co., 229 Va. 164, 167, 327 S.E.2d 102, 104 (1985).  Accord Fowler v. Int'l Cleaning Serv., 260 Va. 421, 428, 537 S.E.2d 312, 315 (2000).  See Peck v. Safway Steel Products, Inc., 262 Va. 522, 525, 551 S.E.2d 328, 329 (2001).  In applying this "stranger to the work" test, defendants were engaged in the trade, business, or occupation of plaintiff's employer, and the trial court was correct that the plaintiff's common law action is barred.
    VIT, the general contractor, is a nonprofit, nonstock corporation that entered into the Service Agreement with the Virginia Port Authority to manage, operate, and conduct the business of NIT, the terminal, for the Commonwealth of Virginia. NIT is a commercial port whose operations include loading and unloading commercial freight, storing commercial freight in warehouses, breaking down freight from shipping containers, removing shipping material from freight, and general maintenance of port facilities. The general contractor is required to operate and maintain the terminal so that commercial traffic can be accommodated in a clean, safe, and orderly manner, and thus ensure that shipping debris and other generated waste is removed from the terminal. According to an affiant, removal of shipping debris and waste from the port "was an essential part of VIT's business of operating the port and maintaining NIT in a clean, safe and orderly manner under the Service Agreement with the Commonwealth of Virginia." 
    In order for VIT, the plaintiff's employer, to reasonably operate the terminal in a clean, safe, and orderly manner, the premises had to be kept free of large quantities of shipping debris and waste generated daily. This required collecting the debris and removing it from the terminal to a landfill. At the time of this accident, VIT was responsible for collecting the debris and waste generated by the operations and maintenance functions throughout the terminal and depositing the materials into containers. VIT could have elected to complete the effort of removing and disposing of the debris and waste using its own employees and purchasing and operating its own equipment. Instead, VIT chose to subcontract to Waste Management the final part of VIT's own responsibility to maintain the premises free of debris and waste. Therefore, Waste Management's actions in removing the debris and waste from the terminal and transporting it to landfills amounted to a continuation and extension of VIT's effort to operate the port in the clean, safe, and orderly manner required by the Service Agreement with the Port Authority. VIT's obligation for fees Waste Management incurred as the result of disposing the material at landfills emphasizes VIT's "overarching responsibility" for maintaining and operating NIT. Consequently, removal of debris and waste under these circumstances cannot be deemed merely incidental to the operation and maintenance of this terminal facility; to the contrary, it is an essential and indispensable part of that business. Thus, Dillow and Waste Management cannot be considered strangers to VIT's trade, business, or occupation, and, as such, they are not "other parties" within the meaning of the Act. The plaintiff's exclusive remedy for his accidental injury lies within the benefits afforded by the Act.  Anderson v. Dillow, Record No. 003017 (Va. S.Ct., November 2, 2001). WP Version.

What is a "Claim."  The commission did not err in determining that claimant filed a timely claim for benefits before expiration of the statute of limitations because the documents claimant filed contained sufficient information to constitute a claim.
    The Workers' Compensation Act (Act) provides that "[t]he right to [workers'] compensation [benefits] under [Title 65.2] shall be forever barred, unless a claim be filed with the Commission within two years after the accident." Code Sec. 65.2-601. The timely filing of an original claim is jurisdictional, and a claimant bears the burden of proving his claim was timely filed. E.g., Binswanger Glass Co. v. Wallace, 214 Va. 70, 73, 197 S.E.2d 191, 193 (1973). Filing with the employer or anyone else is insufficient; the claim must be filed with the commission in order to be considered timely. See Cheski v. Arlington County Pub. Schs., 16 Va. App. 936, 938, 434 S.E.2d 353, 355 (1993). 
    "The basic nature of the notice required by [the Workers' Compensation Act] and the necessity for an applicable jurisdictional limitation are apparent. Such notice is often the first knowledge that an employer and his insurance carrier have of an accident and of their potential liability. It is this notice that sets in motion the machinery to determine whether or not an employee has in fact been injured, the nature of the injury, whether it arose out of and in the course of his employment, whether permanent or temporary, and whether compensable or not. This is the notice which activates the right of the employee to compensation and which invokes the jurisdiction of the . . . Commission." Binswanger, 214 Va. at 73, 197 S.E.2d at 194. Despite requiring the timely filing of a "claim," the Act "does not give a definition of 'claim.'" Garcia v. Mantech Int'l Corp., 2 Va. App. 749, 752, 347 S.E.2d 548, 550 (1986).  The commission disseminates a standardized claim form on which an injured employee may report an industrial injury, but neither the Act nor the commission's rules require that a claim must be filed on that or any other form. See Code Secs. 65.2-600, 65.2-601. Commission Rule 1.1 provides as a guide that: An original claim for benefits shall be in writing, signed and should set forth: 1. Employee's name and address; 2. Employer's name and address; 3. Date of accident . . . ; 4. Nature of injury . . . ; 5. Benefits sought: temporary total, temporary partial, permanent total, permanent partial or medical benefits; [and] 6. Periods of disability, if appropriate. (Emphasis added). "[T]he word 'shall[]' is primarily mandatory," whereas "[t]he word 'should' ordinarily . . . implies no more than expediency . . . [and is] directory only." Brushy Ridge Coal Co. v. Blevins, 6 Va. App. 73, 78, 367 S.E.2d 204, 206 (1988) (in evaluating adequacy of request for review filed pursuant to former Commission Rule 2(A), holding that use of word "should" in rule does not prevent commission from obtaining jurisdiction over issues not raised therein). Thus, Commission Rule 1.1, standing alone, does not automatically exclude from consideration a claim which omits one or more of the items of information which the rule says a claim "should set forth." 
    As the Court of Appeals previously noted in affirming the decision of the commission to accept as a claim a letter from a claimant's lawyer to the commission, "[t]he [commission] is not bound by technical rules of pleading or practice." Trammel Crow Co. v. Redmond, 12 Va. App. 610, 614, 405 S.E.2d 632, 634 (1991). A letter is sufficient to constitute a claim if it "identif[ies] the employer, the date of the accident, the location of the accident, and the injuries suffered" and "'fairly apprise[s] the commission that a claim [is] being made'" on behalf of the employee. Cheski, 16 Va. App. at 938, 434 S.E.2d at 355 (quoting Redmond, 12 Va. App. at 614, 405 S.E.2d at 634) (emphasis added); see also Chalkley v. Nolde Bros. Inc., 186 Va. 900, 912, 45 S.E.2d 297, 302 (1947) (construing as timely filed claim a letter from counsel representing employer which requested determination of employer's rights and asked that injured boy, argued to be an employee by third-party tortfeasor in related civil suit, and workers' compensation carrier be made parties to the proceedings). Further, as the Court held implicitly in Cheski, these requisites need not be contained in the same document, as long as the documents, when construed together, satisfy the requirements set out in Redmond. Cheski, 16 Va. App. at 938-39, 434 S.E.2d at 354-55 (rejecting argument that "[t]he two letters" from employer's agent which employee sent to commission constituted a claim because "they" did not identify the location of the accident or the injuries suffered and did not fairly apprise the commission that a claim on behalf of the employee was being made). Finally, a claimant need not request a hearing or determination of rights in order for his filing to be considered a claim. See Redmond, 12 Va. App. at 613-14, 405 S.E.2d at 634. 
    Here, claimant simultaneously submitted to the commission a signed, handwritten note and a mostly complete copy of the First Report, previously filed with the commission by employer. Under the above principles,  the evidence supports the commission's determination that these documents, viewed together, contained sufficient information to constitute a claim. Although the signature on claimant's handwritten note was illegible, the note indicated in legible print that "my injury is still being treated," and the accompanying First Report clearly identified a left knee injury sustained by claimant at 1:00 p.m. on October 28, 1997 while working for Massey Builders Supply Corp. The First Report provided addresses for both claimant and employer. The First Report also indicated the injury occurred when claimant slipped and twisted his left knee while "walking down ramp on construction site" in Chesterfield County. Finally, the handwritten note indicated claimant's need, at a minimum, for ongoing medical benefits to cover two additional surgeries, one of which was scheduled for later that same month, to correct an "RSD problem." Thus, claimant's submissions met the minimum requirements of Redmond and Cheski because, construed together, they "identif[ied] the employer, the date of the accident, the location of the accident, and the injuries suffered," and "fairly apprise[d] the commission that a claim [for benefits was] being made."  
    Thus, had the claim been properly handled by the commission, its filing would have triggered official notice to employer, as contemplated by the Court in Binswanger when it noted that such filing "is often the first knowledge that an employer and his insurance carrier have of an accident and their potential liability." 214 Va. at 73, 197 S.E.2d at 194. That claimant did not personally prepare the First Report, a copy of which employer previously had filed with the commission, or refer to the report in his accompanying note is not dispositive; as the claimant asserts, it was the content of the document, not its status as a First Report, that was relevant to the statute of limitations issue. Further, as the commission appropriately found, the fact that commission employees erroneously concluded claimant's injury had not previously been reported, which caused it to view the documents as an incomplete First Report submitted by the employer rather than as an original claim for benefits from the employee, was not controlling. Undisputed evidence established that claimant's submissions, though improperly interpreted, were received by the commission prior to expiration of the statute of limitations and met the minimum requirements for an original claim for benefits. For these reasons, the commission properly interpreted claimant's submissions as a timely claim for benefits. Massey Builders Supply v. Waverly Gerald Colgan, Record No. 0234-01-2 (October 9, 2001). WP Version.

    The commission erred in concluding that claimant's request for review was untimely because it was not filed within twenty days of his attorney's receipt by certified mail of a copy of the deputy commissioner's opinion, as required by Code Sec. 65.2-705(A).   Code Sec. 65.2-705(A)'s twenty-day limitation period for filing a request for review begins to run only when, as required by Code Sec. 65.2-704(A), the party, rather than the party's attorney, receives a copy of the deputy commissioner's opinion by registered or certified mail.    
    On March 2, 1999, following a hearing on claimant's claim on February 4, 1999, at which claimant was represented by counsel, the deputy commissioner issued an opinion denying claimant's claim under both theories of recovery.  That same day, the commission mailed copies of the deputy commissioner's opinion by certified mail to counsel of record for the parties and by regular first-class mail to the parties.  Claimant's counsel received a copy of the opinion by certified mail on March 4, 1999.  Having no prior knowledge of the deputy commissioner's ruling, claimant received a copy of the opinion by regular first-class mail on March 6, 1999.
    On March 25, 1999, claimant, proceeding pro se, filed a request for review of the deputy commissioner's opinion by the full commission.  By letter dated March 31, 1999, the chief deputy commissioner rejected claimant's request for review, ruling that the commission lacked jurisdiction to hear the requested review because claimant's request for review was not filed within twenty days of his attorney's receipt by certified mail of the deputy commissioner's opinion. 
    Code Sec. 65.2-704(A) provides, in pertinent part, as follows: The Commission or any of its members or deputies shall hear the parties at issue, their representatives, and witnesses; shall decide the issues in a summary manner; and shall make an award or opinion carrying out the decision.  A copy of the award or opinion shall be sent immediately to the parties at issue by registered or certified mail.
    Code Sec. 65.2-705(A) provides, in pertinent part, as follows:    If an application for review is made to the Commission within twenty days after receipt of notice of such award to be sent as provided in subsection A of Sec. 65.2-704, the full Commission . . . shall review the evidence or, if deemed advisable, as soon as practicable, hear the parties at issue, their representatives, and witnesses.
    The dispositive question in this case is whether, as the commission concluded, Code Sec. 65.2-705(A)'s twenty-day limitation period began to run on March 4, 1999, when claimant's attorney of record received a copy of the deputy commissioner's March 2, 1999 opinion by certified mail.  If so, claimant's request for review filed March 25, 1999 was untimely and the commission had no jurisdiction to review the matter. 
    The parties agree that, because Code Sec. 65.2-705(A) provides that the twenty-day limitation period for filing a request for review begins to run upon receipt of notice of an award or opinion "sent as provided in subsection A of Sec. 65.2-704," and because Code Sec. 65.2-704(A) requires that a copy of the award or opinion be sent "to the parties at issue by registered or certified mail," resolution of the question of when the limitation period began to run in this case turns on the construction of the term "the parties at issue" as used in the directive set forth above.
    The language of both Code Sec. 65.2-704(A) and Code Sec. 65.2-705(A) is clear and unambiguous.  The first sentence of Code Sec. 65.2-704(A) provides, inter alia, that the commission "shall hear the parties at issue, their representatives, and witnesses."  The second sentence of Code Sec. 65.2-704(A) reads, "A copy of the award or opinion shall be sent immediately to the parties at issue by registered or certified mail."  Code Sec. 65.2-705(A) provides, inter alia, that, if a request for review is timely filed, the full commission shall "hear the parties at issue, their representatives, and witnesses" and, upon reaching a decision, immediately send a copy of the award "to the parties at issue."  This language draws a clear distinction between "the parties at issue" and "their representatives."
    Had the legislature intended that the sending of a copy of an opinion or award to the party's attorney of record be considered the equivalent of sending a copy to the party, the legislature could have so indicated, but it did not.  Indeed, in specifically providing in Code Sec. 65.2-715 that the commission must provide copies of its opinions to the parties and to their counsel, the legislature has indicated otherwise.  Code Sec. 65.2-715 provides:  Whenever, in the course of proceedings in connection with awards, the Workers' Compensation Commission issues any written notice, opinion, order or award regarding a specific case, the Commission shall provide copies to the employee, the employer and the compensation carrier, and, if represented, their counsel, at the same time.
    This statute reinforces the notion that, for purposes of notice, the legislature intended to treat the parties and their counsel as separate entities. Therefore, Code Sec. 65.2-704(A) means what it plainly says, namely, that a copy of the award or opinion must be sent by registered or certified mail to the parties themselves.  Such a literal construction does not yield an absurd result.  Conversely, affirming the contrary statutory construction employed by the commission, and sought by employer, would require us to extend the Workers' Compensation Act's provisions beyond their obvious meaning and to hold that the legislature did not mean what it actually expressed.  If such a change is to be made, it is for the legislature to undertake, not the courts.  Thus, the sending of a copy of an opinion by certified mail solely to a party's attorney of record, as occurred in this case, does not satisfy Code Sec. 65.2-704(A)'s mandate that "[a] copy of the award or opinion . . . be sent . . . to the parties at issue by registered or certified mail."
    Code Sec. 65.2-705(A)'s twenty-day limitation period for requesting review of an award or opinion of the commission begins to run when the party, rather than the party's attorney of record, receives a copy of the award or opinion by registered or certified mail.  Thus, because claimant never received a copy of the deputy commissioner's March 2, 1999 opinion by registered or certified mail, as required by Code Sec. 65.2-704(A), Code Sec. 65.2-705(A)'s limitation period never began to run with respect to his request for review filed March 25, 1999.  Hence, claimant's request for review was timely, and the full commission had jurisdiction to review the deputy commissioner's March 2, 1999 opinion.  Michael B. Peacock v. Browning Ferris, Inc., Record No. 1772-01-2 (May 14, 2002); 38 Va. App. 241, 563 S.E.2d 368 (2002). WP Version.

    Plaintiff-appellant was a statutory employee of the defendant-appellee when she was injured.  The circuit court's judgment sustaining the defendant's plea in bar based on the exclusivity provision of the Virginia Workers' Compensation Act, Code Sec. 65.2-307(A), is affirmed.
    Louise V. Burch was employed as a sales representative by Greenhost, Inc.(Greenhost). Greenhost grew plants and flowers and sold them on a wholesale basis to various retailers, including Hechinger Company (Hechinger).  In the spring of 1997, Burch negotiated an order for Greenhost flowers to be sold at a Hechinger store in Springfield during a "truckload sale" advertised to take place over a Friday, Saturday and Sunday in May.  Burch agreed to be present during part of the truckload sale to assist in displaying the flowers and to answer horticultural questions for Hechinger retail customers.
    A problem arose when one of the trailers of flowers arrived at the Springfield Hechinger store a day earlier than anticipated and Hechinger did not have staff available to unload the flowers and arrange the display that day.  If the plants remained inside the trailer all day, the heat would cause them to wilt and die and Burch "would have to go up there and write a return."  Therefore, at the request
of her supervisor, Burch went to the Hechinger store the day before the sale was scheduled to begin.  She assisted in arranging the display of flowers as they were unloaded from the trailer and answered questions of Hechinger customers.  A Hechinger employee unloaded carts from the trailer while the customers waited.  At this point, one of the carts filled with potted flowers rolled off of the trailer's tailgate, falling onto Burch and injuring her.
    The sole issue in this appeal is whether the trial court was correct in designating Burch as a statutory employee of Hechinger at the time of her injury.  If so, then her negligence action seeking damages from Hechinger is barred by Code Sec. 65.2-307(A).
    With regard to when an individual may be properly considered a statutory employee, the Sec. 65.2-302(A) of the Act provides: When any person (referred to in this section as "owner") undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (referred to in this section as "subcontractor") for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any worker employed in the work any compensation under this title which he would have been liable to pay if the worker had been immediately employed by him.
    "The issue whether a particular person or entity is the statutory employer of an injured employee is a jurisdictional matter presenting a mixed question of law and fact that must be determined under the facts of each case."  Bosley v. Shepherd, 262 Va. 641, 648, 554 S.E.2d 77, 81 (2001).  If the facts establish that an individual performs activities that are normally performed by a person's employees rather than by independent contractors, then that individual is properly considered that person's statutory employee for purposes of the Act.  Shell Oil Co. v. Leftwich, 212 Va. 715, 722, 187 S.E.2d 162, 167 (1972).  See also Carmody v. F. W. Woolworth Co., 234 Va. 198, 205-06, 361 S.E.2d 128, 132-33 (1987) (licensee portrait photography business inside Woolworth store was engaged in work that Woolworth normally conducted through its employees; thus, licensee's employee was Woolworth's statutory employee).
    In the instant case, Burch was arranging displays of flowers and, more immediately at the time of her injury, she was assisting Hechinger retail customers.  The uncontroverted testimony at the hearing on Hechinger's plea in bar established that both of these activities were normally performed by Hechinger employees.
    The Virginia Supreme Court has previously considered the point at which an individual delivering products has completed the task of delivery, and beyond which point, engaging in further activities constitutes performing the work of another entity's trade, business or occupation.  In Bosley, the court held that using a crane to deliver sheetrock to specific locations on a jobsite was part of the delivery.  262 Va. at 649-50, 554 S.E.2d at 82.  The employee so engaged was not a statutory employee of the general contractor because he did not perform any other task to further the work of the general contractor.  Id.; see also Burroughs v. Walmont, Inc., 210 Va. 98, 100, 168 S.E.2d 107, 108 (1969) (the stacking of sheetrock in several rooms constituted the final act of delivery, not the act of construction).  In contrast, we held that an individual who delivered sand to a construction site and then participated in spreading the sand to a six-inch base as required by building specifications was a statutory employee of the general contractor because he had proceeded beyond the task of delivery and engaged in the contractor's work of construction.  Bosher v. Jamerson, 207 Va. 539, 542-43, 151 S.E.2d 375, 377 (1966).
    The instant case is more like Bosher.  Although Burch contends that she was engaged in the final act of delivery, the testimony clearly reflects that Burch herself did not participate in the delivery of the flowers.  Rather, Greenhost's wholesale delivery was complete when the trailer arrived at the Springfield Hechinger store, because it was then the responsibility of Hechinger employees to unload the flowers and continue the retail merchandising process from that point forward.
    Burch was involved in discrete activities both prior to and after the delivery. Before the delivery, she represented Greenhost in negotiating the sale to Hechinger.  Once the trailer of flowers arrived at the Hechinger store, Hechinger employees were then responsible for unloading the flowers from the trailer, as well as arranging the flowers on display and assisting Hechinger retail customers.  Thus, when Burch's involvement resumed, after the delivery, her activities - that is, arranging the display of flowers and answering the questions of Hechinger retail customers - were, as previously noted, tasks that were normally performed by Hechinger employees.  That she was motivated to perform such tasks by the prospect of increased future sales does not change the fact that both activities further the retail business of Hechinger and are normally performed by Hechinger employees.
    The evidence at the hearing on Hechinger's plea in bar was sufficient to support the circuit court's finding that, by virtue of engaging in work normally performed by Hechinger employees, Burch was a statutory employee of Hechinger at the time of the accident.  Thus, her sole remedy lies in workers' compensation and her negligence action against Hechinger is barred by the exclusivity provision of the Act.  Burch v. Hechinger Company, Record No. 991490 (June 7, 2002). WP Version.

Legal Summaries Contents            Home Page Contents