                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bray and Bumgardner
Argued at Chesapeake, Virginia


UNINSURED EMPLOYER'S FUND
                                                 OPINION BY
v.   Record No. 2476-99-1                   JUDGE RICHARD S. BRAY
                                                JULY 18, 2000
MICHAEL L. EDWARDS, JIM DOYAN and
 C. LEWIS WALTRIP, II, INC./JAMESTOWN BUILDING CORPORATION


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Amy C. Stallings, Assistant Attorney General
             (Mark L. Earley, Attorney General; John J.
             Beall, Jr., Senior Assistant Attorney
             General, on brief), for appellant.

             Richard E. Garriott, Jr. (Robert A. Rapaport;
             Clark, Dolph, Rapaport, Hardy & Hull, P.L.C.,
             on brief), for appellees C. Lewis Waltrip,
             II, Inc./Jamestown Building Corporation.

             No brief or argument for appellees
             Michael L. Edwards and Jim Doyan.


     The Uninsured Employer's Fund (the Fund) appeals the decision

of the Workers' Compensation Commission (commission) relieving the

statutory employer, C. Lewis Waltrip, II, Inc./Jamestown Building

Corporation (Waltrip), of responsibility for benefits due Michael

L. Edwards (claimant) pursuant to the Workers' Compensation Act

(the Act).    Relying upon the provisions of Code § 65.2-600(A), the

commission found Waltrip insulated from liability, absent both

proper notice of the accident and "at least sixty days notice of

the hearing to ascertain compensability."    The Fund contends that
actual notice to Waltrip of the injury, though untimely, removed

the claim from the reach of Code § 65.2-600(A) but, if not,

Waltrip was sufficiently aware of the scheduled hearing to satisfy

the statutory mandate.   Finding that the commission correctly

construed and applied Code § 65.2-600(A) to the instant

circumstances, we affirm the decision.

                                 I.

     The salient facts are substantially uncontroverted.     While

employed by Jim Doyan, an uninsured contractor, claimant suffered

an industrial injury to his right eye on April 6, 1998.     Although

Doyan learned of the accident and injury immediately after the

occurrence, neither Doyan nor claimant advised Waltrip, claimant's

statutory employer, of the incident.

     On June 29, 1998, claimant lodged a "Claim for Benefits" with

the commission, resulting in a "Notification Letter" to both Doyan

and Waltrip, dated July 28, 1998, which reported the pending claim

and requested related documentation.   George Jeffries, "general

manager" for Waltrip, testified that, "within 15 minutes" of

receiving the notice, he telephoned Waltrip's "on the job"

superintendent to determine "if he knew anything about this."    The

superintendent disclaimed "knowledge of it happening," and Doyan

denied claimant had been in his employ. 1   Within a week

thereafter, Jeffries spoke to a "claims adjuster" for Waltrip's


     1
       Doyan later admitted that he employed claimant at the time
of the accident.

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workers' compensation insurance carrier, and suspended his

investigation of the accident after she advised, "let's just ride

this thing along and see what happens."

     Waltrip filed a "First Report of Accident" on November 16,

1998, and the commission, on December 3, 1998, issued "Notice of

[a] Hearing" scheduled for January 19, 1999.   Waltrip appeared at

the proceedings and denied liability, relying upon lack of timely

notice of both the accident and hearing, pursuant to Code

§ 65.2-600(A).    Deputy Commissioner Andrea White Lee awarded

claimant benefits against Doyan, but, citing Code § 65.2-600(D),

relieved Waltrip of liability because Waltrip had not received

timely notice of the accident, without "reasonable excuse" by

claimant, resulting in "prejudice" to Waltrip.   Code

§ 65.2-600(D).    Claimant appealed to the full commission.

     Affirming the deputy on appeal, albeit "[f]or different

reasons," the commission relied upon Code § 65.2-600(A) to deny

the claim, reasoning that, in default of notice of the accident

within thirty days of occurrence, pursuant to Code § 65.2-600(A)

and (D), Waltrip, as statutory employer, was entitled to sixty

days notice of the scheduled hearing in accordance with Code

§ 65.2-600(A).

                                 II.

     Code § 65.2-600 (formerly Code § 65.1-85) provides, in

pertinent part:



                                - 3 -
          A. Every injured employee or his
          representative shall immediately on the
          occurrence of an accident or as soon
          thereafter as practicable, give or cause to
          be given to the employer a written notice of
          the accident. If notice of accident is not
          given to a statutory employer, such
          statutory employer may be held responsible
          for . . . awards of compensation rendered by
          the Commission if (i) he shall have had at
          least sixty days' notice of the hearing to
          ascertain compensability of the accident,
          and (ii) the statutory employer was not
          prejudiced by lack of notice of the
          accident.

          *         *        *     *        *      *      *

          D. No compensation or medical benefit shall
          be payable unless such written notice is
          given within 30 days after the occurrence of
          the accident or death, unless reasonable
          excuse is made to the satisfaction of the
          Commission for not giving such notice and
          the Commission is satisfied that the
          employer has not been prejudiced thereby.

(Emphasis added).       Such notice must be provided to both "the

employer" and "any statutory employer."         Code § 65.2-600(A); see

Race Fork Coal Co. v. Turner, 237 Va. 639, 644, 379 S.E.2d 341,

343-44 (1989); Wagner Enterprises v. Brooks, 12 Va. App. 890,

896-97, 407 S.E.2d 32, 36 (1991).

     In adjudicating claims arising under the Act, the

commission and judiciary have accorded equal dignity to written

and actual notice to employers.        In Department of Game and

Inland Fisheries v. Joyce, 147 Va. 89, 136 S.E. 651 (1927), the

Supreme Court concluded that:

          [W]here there was no written notice but
          . . . where a foreman or superior officer

                                   - 4 -
          had actual knowledge of the occurrence of an
          accident or death within a reasonable time
          after the accident or death occurred and no
          prejudice to the employer's rights was
          shown, this was sufficient notice under
          . . . the statute.

Id. at 97, 136 S.E. at 654; see Kane Plumbing v. Small, 7 Va.

App. 132, 138, 371 S.E.2d 828, 832 (1988) (knowledge by Small's

supervisor of his injury was notice to actual employer).

Following Kane, this Court also deemed actual notice to a

statutory employer sufficient compliance with the notice

requirements of Code § 65.1-85 (now Code § 65.2-600(A)).     See

Wagner Enterprises, 12 Va. App. at 897, 407 S.E.2d at 36-37.

     However, notice of the accident, whether written or actual,

must also be timely, "given within 30 days after the occurrence

. . ., unless reasonable excuse is made to the satisfaction of

the commission . . . and the commission is satisfied that the

employer has not been prejudiced thereby."   Code § 65.2-600(D).

The resolution of claims attended by untimely notice to actual

employers, guided by a Code § 65.2-600(D) analysis, is not

unique in our jurisprudence.   However, a paucity of decisions

have addressed the responsibility of a similarly situated

statutory employer, with Race Fork the seminal opinion.

     In Race Fork, the commission held the statutory employer,

Race Fork Coal Company, responsible for a previous award of the

commission to an injured worker, despite an absence of notice to

Race Fork of either the accident or compensability hearing, a


                               - 5 -
decision subsequently affirmed by this Court.      See 237 Va. at

642, 379 S.E.2d at 342-43.     In reversing on appeal, the Supreme

Court expressly declined to dismiss the claim against Race Fork,

recognizing that an employee "may not know the relationship

between his employer and some third party, who may be a

statutory employer at the time of . . . injury, and . . . may

not reasonably discover that relationship within a period of 30

days thereafter."      Id. at 644, 379 S.E.2d at 343-44.    However,

the Court concluded that due process entitled Race Fork to a "de

novo hearing" to adjudicate the respective "rights to benefits

under the Act," provided that the claimant tendered to the

commission a "reasonable excuse for not giving [timely] notice"

of the accident and Race Fork had not been prejudiced by a

default in notice. 2    Id. at 644, 379 S.E.2d at 344.     Thus, the

Court sought to at once preserve the interest of the injured

worker and safeguard the right of the statutory employer,

without proper notice of the accident, to a hearing on the

claim.

     Mindful of prior judicial construction and application of

the notice requirements prescribed by Code § 65.2-600(A) and (D)

and its precursors, the General Assembly, in 1997, amended Code

§ 65.2-600(A) to render a statutory employer, without "notice of


     2
       The predicates imposed by the Court to relief on the claim
comport with Code § 65.2-600(D), former Code § 65.1-85 cited by
the Court in n.3.


                                  - 6 -
the accident," responsible for related compensation awarded by

the commission, if such statutory employer is afforded sixty

days notice of the attendant hearing and "was not prejudiced by

lack of notice of the accident."   Thus, the amendment

established a liability test unique to those statutory employers

without timely notice of the accident, one apart from the

reasonable excuse/prejudice inquiry prescribed for actual

employers by Code § 65.2-600(D), and the commission applied the

revised Code § 65.2-600(A) analysis to the instant claim.

     "Well established 'principles of statutory construction

require us to ascertain and give effect to the legislative

intent.'"   Brooks v. Commonwealth, 19 Va. App. 563, 566, 454

S.E.2d 3, 4 (1995) (citation omitted).   "When new provisions are

added to existing legislation by amendment, we presume that the

legislature 'acted with full knowledge of and in reference to

the existing law upon the same subject and the construction

placed upon it by the courts[,] . . . that the legislature acted

purposefully with the intent to change existing law."     Burke v.

Commonwealth, 29 Va. App. 183, 188, 510 S.E.2d 743, 745-46

(1999) (citations omitted).   When "'the several provisions of a

statute suggest a potential for conflict or inconsistency,'" we

must construe such "'provisions so as to reconcile them and to

give full effect to the expressed legislative intent.'"       Herrel

v. Commonwealth, 28 Va. App. 579, 585, 507 S.E.2d 633, 636

(1998) (citation omitted).    Finally, "'[t]he construction

                                - 7 -
afforded a statute by the public officials charged with its

administration and enforcement is entitled to be given weight by

a court.'"   Lynch v. Lee, 19 Va. App. 230, 232, 450 S.E.2d 391,

392 (1994) (citation omitted).

     Here, the legislative, administrative and judicial history

of Code § 65.2-600 clearly suggests that the legislature

intended, by the amendment, that the potential responsibility of

a statutory employer for a claim under the Act, absent timely

notice of the related accident, be resolved upon considerations

different from those enumerated in Code § 65.2-600(D),

applicable to actual employers.    The attenuated, oftentimes

remote, relationship between the statutory employer and the

worker, together with the need to preserve the rights and

responsibilities of each, required a balancing of competing

interests through a distinct procedural course.   Thus, the

legislature, while mandating notice of an accident within thirty

days of the occurrence to both statutory and actual employers,

fashioned a threshold inquiry specific to a determination of

responsibility under the Act upon a statutory employer without

timely notice of the accident.    Under such circumstances, the

statutory employer must have received at "least sixty days

notice of the hearing to ascertain compensability of the

accident" and suffered no prejudice from "lack of notice."

     Applying Code § 65.2-600(A) to the instant record, the

commission correctly concluded that Waltrip neither received

                                 - 8 -
timely notice of the accident nor at least sixty days notice of

the hearing.   Accordingly, the commission properly ruled that

Waltrip was "not responsible for the award of compensation" to

claimant.

                                                        Affirmed.




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