Present:   All the Justices

BARRY WYATT REDIFER
                                                   OPINION BY
v.   Record No. 101902                     JUSTICE S. BERNARD GOODWYN
                                                January 13, 2012
FRANCIS CHESTER, ET AL.

             FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
              John J. McGrath, Jr., Judge Designate

     In this appeal, we consider whether an employee may pursue

a civil action for damages against his employer in addition to

collecting benefits awarded by the Virginia Workers’

Compensation Commission (Commission), when the employer has

failed to insure payment of workers’ compensation benefits as

required by Code § 65.2-800.

                              Background

     Francis Chester (Chester), an attorney, maintains a law

office in Augusta County.     Chester is also engaged in raising

sheep and manufacturing wool and operates two businesses,

Cestari Ltd. (Cestari) and Cestari Sheep and Land Company

(CSLC), for these purposes.    On October 9, 2006, Barry W.

Redifer (Redifer) was injured while working for Chester’s sheep

and wool business as a wool press operator, when his right arm

became caught in a wool manufacturing machine.       Chester

maintained workers’ compensation insurance for his law office,

but not for his farm businesses.    On November 8, 2006, Redifer

filed a workers’ compensation claim against Chester, Cestari
and CSLC.   While that workers’ compensation matter was pending,

Redifer also filed a complaint in the Circuit Court of Augusta

County against Chester, Cestari and CSLC seeking damages for

their negligence.

     The deputy workers’ compensation commissioner determined

that Cestari was Redifer’s employer, that Cestari was

uninsured, and that Redifer was entitled to workers’

compensation benefits.   The full Commission affirmed the deputy

commissioner’s findings that Cestari was uninsured and the

employer, and that Redifer’s injuries were compensable under

the Act.    The Court of Appeals affirmed the findings of the

full Commission.

     Chester, Cestari and CSLC moved to dismiss the complaint

pending in the Circuit Court of Augusta County.   They argued

that the circuit court action was barred by the worker’s

compensation benefits awarded to Redifer by the Commission and

affirmed by the Court of Appeals, and that Cestari had made

payments to medical care providers on Redifer’s behalf in

accordance with the workers’ compensation award and issued a

check paying in whole Redifer’s disability awards.

     Redifer argued that he could pursue a civil action despite

obtaining a workers’ compensation award because an employer who

does not obtain insurance as required by the Workers’

Compensation Act (the Act) is not entitled to the limited


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liability provided by the Act, even if it pays an award granted

pursuant to the Act.

       Finding that Redifer had pursued his workers’ compensation

claim to a final order and that he had a remedy for collection

of his workers’ compensation award against Cestari and/or the

Uninsured Employers’ Fund (UEF), the circuit court dismissed

Redifer’s civil complaint. 1     Redifer appeals.

                                 Analysis

       Redifer argues that the circuit court erred in ruling that

recovery under the Act bars him from seeking damages at law

against his employer, when his employer failed to insure

payment of workers’ compensation benefits as required by the

Act.       Citing Virginia Used Auto Parts, Inc. v. Robertson, 212

Va. 100, 181 S.E.2d 612 (1971), Redifer claims that just as an

unsuccessful recovery under the Act does not bar the employee

of an uninsured employer from seeking recovery in an action at

law, a successful or potentially successful recovery under the

Act does not bar the employee from seeking “full damages” at

law.       He claims that Robertson stands for the proposition that,

pursuant to Code § 65.2-805, such an employee is not subject to

the concept or defense of election, but is entitled to the


       1
       The circuit court also dismissed Chester and CSLC as
defendants in accordance with the Commission’s determination
that Cestari, and not Chester or CSLC, was Redifer’s employer.
That ruling has not been appealed.

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maximum benefit he or she can obtain.     Thus, Redifer asserts

that if an employee recovers the “limited” benefits of a

workers’ compensation award, he or she can still pursue “full

damages” in an action at law, as long as the employer receives

credit on the judgment for any amounts actually paid under the

workers’ compensation award.

       Cestari argues that Code § 65.2-805 precludes an injured

employee from pursuing a personal injury action at law when he

has already fully and successfully pursued a workers’

compensation claim and obtained a recoverable award.    We agree

with Cestari.

       The Act, in Code § 65.2-307(A), states:

       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 . . . on
       account of such injury, loss of service or death.

Every employer and employee, except those statutorily exempted,

is conclusively presumed to have accepted the provisions of the

Act.   Code § 65.2-300.

       The Act requires every employer subject to its

compensation provisions to insure the payment of compensation

to its employees in the manner required by the Act.     Code

§ 65.2-800.   See also Code § 65.2-804.    Cestari failed to do




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so.    It is therefore subject to the provisions of Code § 65.2-

805.

       Code § 65.2-805(A) provides:

       If such employer fails to comply with the provisions
       of § 65.2-800 or 65.2-804, he shall be assessed a
       civil penalty of not less than $500 nor more than
       $5,000, and he shall be liable during continuance of
       such failure to any employee either for compensation
       under this title or at law in a suit instituted by the
       employee against such employer to recover damages for
       personal injury or death by accident . . . .

Further, if an employee institutes such a civil suit against

his employer, the employer may not assert the defenses that the

employee was negligent, that the injury was caused by the

negligence of a fellow employee or that the employee had

assumed the risk of the injury.       Id.

       Interpretation of Code § 65.2-805 presents a pure question

of law that this Court reviews de novo.     Syed v. ZH Techs.,

Inc., 280 Va. 58, 69, 694 S.E.2d 625, 631 (2010).    By its plain

language, Code § 65.2-805 gives the employee of an uninsured

employer the option to seek compensation under the Act or in an

action at law to recover damages for personal injury.

       In Robertson, this Court addressed the application of

provisions now codified in Code § 65.2-805 in a situation

wherein an injured employee obtained suspension of his workers’

compensation claim, prior to disposition by the Commission, to

institute a civil action against his uninsured employer for the



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same injuries.      212 Va. at 100-01, 181 S.E.2d at 612-13. 2    The

employee did not prevail in the civil action.      Thereafter, the

Commission considered the employee’s workers’ compensation

claim and awarded him compensation.      Id. at 101, 181 S.E.2d at

613.       The employer appealed.

       This Court stated that the provisions now codified in Code

§ 65.2-805 provide “extraordinary advantages to an injured

employee when his employer has failed or refused to comply with

the [Workers’ Compensation] Act” and that the statute is “to be

liberally construed in favor of the employee.”      Id. at 102, 181

S.E.2d at 613.      We noted that the statute does not explicitly

require the employee to make an election of remedies.       Id.

Construing the “overriding legislative intent” of the statute

to be “that an uninsured employer shall be liable to his

employee injured in an accident arising out of and during the

course of his employment,” this Court held that “unsuccessful

resort to a civil action will not bar the employee from

pursuing his remedy under the Act.”      Id. at 103, 181 S.E.2d at

614.




       2
       In Robertson, this Court considered Code § 65-102, which
is substantively equivalent to Code § 65.2-805, currently in
effect.

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      The Court also discussed the application of the provisions

now codified in Code § 65.2-805 3 in Delp v. Berry, 213 Va. 786,

195 S.E.2d 877 (1973).    In Delp, an employee was successful in

establishing the liability of his uninsured employer under the

Act, but was unsuccessful in collecting the award.      Id. at 787,

195 S.E.2d at 878.    The employee thereafter filed a civil

action for negligence against his uninsured employer, but the

circuit court held that it lacked jurisdiction to hear the case

due to the employee’s previous workers’ compensation award.

Id.   This Court reversed the circuit court.     We held that an

employee is entitled to only one full recovery and can collect

only one recovery under the provisions now codified in Code

§ 65.2-805.     Id. at 789, 195 S.E.2d at 879.   We noted, however,

that although Delp was “entitled to only one full recovery,” he

had not effected any recovery.     Id.   We held that Delp could

file a civil action against his employer because he had not

been able to effect recovery of his workers’ compensation

award.    Id.

      When considering Robertson and Delp together with the

plain language of current Code § 65.2-805, it is apparent that

although Code § 65.2-805 is to be liberally construed to allow


      3
       In Delp, this Court considered Code § 65.1-106, which is
substantively equivalent to Code § 65.2-805, currently in
effect.



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an employee to effect a recovery, an employee may collect only

one recovery from his uninsured employer.   An employee may

pursue alternative relief simultaneously, and if the employee

fails to collect under the remedy he or she initially pursues

to award, the employee may pursue the alternative remedy in an

effort to effect a recovery.   However, the employee is entitled

to only one recovery.

     Unlike the employees in the Robertson and Delp cases,

Redifer successfully obtained a final workers’ compensation

award and has received some of that award from Cestari and is

assured of recovering all the workers’ compensation benefits to

which he is entitled from Cestari or the UEF. 4   Redifer has

received the recovery he sought under the Act.    Thus, the

circuit court did not err in ruling that Redifer could not

pursue an action at law against his employer after obtaining a

final collectible award of workers’ compensation benefits.

                            Conclusion

     Accordingly, for the reasons stated, we will affirm the

circuit court’s judgment.

                                                         Affirmed.



      4
        The UEF was created after this Court rendered its
decision in Delp. See Code § 65.2-1200; 1977 Acts ch. 345.
The UEF ensures the payment of compensation benefits owed by an
uninsured employer that fails to pay benefits ordered by the
Commission. Code § 65.2-1203.

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