COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Overton and Senior Judge Duff 

Argued by Teleconference 

JOHN WARNER T/A JOHN WARNER CONSTRUCTION 

v. Record No. 2556-96-4 

WILLIAM MARSH MEMORANDUM OPINION* BY 

 JUDGE NELSON T. OVERTON 

UNINSURED EMPLOYER'S FUND JUNE 10, 1997 

v. Record No. 2604-96-4 

WILLIAM MARSH 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Douglas E. Bywater (Tate & Bywater, Ltd., on 

brief), for John Warner t/a John Warner 

Construction. 

 Paul S. Stahl, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

John J. Beall, Jr., Senior Assistant Attorney 

General, on brief), for Uninsured Employer's 

Fund. 

 Robert A. Mordhorst (Mordhorst & Taweel, on 

brief), for William Marsh. 

 The Uninsured Employer's Fund and John Warner each appeal 

the decision of the Workers' Compensation Commission awarding 

benefits to William Marsh for injuries by accident to his back 

and shoulder. The Fund appeals the compensability of the 

shoulder injury and further contends that the commission erred in 

entering the award against the general contractor as a 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

corporation instead of as an individual. John Warner, Marsh's 

direct employer and a subcontractor, also appeals the 

compensability of the shoulder injury, as well as the back 

injury.1

 We affirm the decision of the commission as to 

compensation, but remand with instructions to vacate the award 

against the general contractor as a corporation and enter it 

against the general contractor as an individual. 

 The parties are fully conversant with the record in the 

cause, and because this memorandum opinion carries no 

precedential value, no recitation of the facts is necessary. 

 Both the Fund and John Warner claim that the commission 

erred in finding that Marsh's shoulder injury was a compensable 

injury by accident. Guided by well established principles, we 

construe the evidence in the light most favorable to the party 

prevailing below. See Crisp v. Brown's Tysons Corner Dodge, 

Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). "If there 

is evidence, or reasonable inferences can be drawn from the 

evidence, to support the Commission's findings, they will not be 

disturbed on review, even though there is evidence in the record 

to support a contrary finding." Morris v. Badger Powhatan/Figgie 

 

 1Because John Warner did not ask for a review by the full 

commission of the deputy commissioner’s finding as to the back 

injury, this issue does not properly come before the Court on 

appeal. As such, we do not address John Warner’s contention. 
 3 

Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986); see

Code § 65.2-706. "In determining whether credible evidence 

exists," this Court will not "retry the facts, reweigh the 

preponderance of the evidence, or make its own determination of 

the credibility of the witnesses." Wagner Enters., Inc. v. 

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citation 

omitted). 

 The record contains evidence that Marsh's shoulder, although 

previously injured, underwent a significant structural change as 

a result of the incident in question. Marsh's treating 

physician, in his notes, letters, and interrogatories, opined 

that the incident caused the change in his shoulder and 

necessitated surgery. The physician also made a seemingly 

inconsistent opinion, but this represents at best an internal 

conflict of an expert that was resolved by the commission in 

favor of the claimant. That determination is supported by 

credible evidence and is binding and conclusive on appeal. See

Greif Cos./Genesco, Inc. v. Hensley, 22 Va. App. 546, 552, 471 

S.E.2d 803, 806 (1996). 

 We agree with the Fund's second contention that the 

commission entered the award against an incorrect employer. As 

general contractor on the construction site, both P.D. Gravett as 

an individual and P.D. Gravett Management Services were before 

the commission as defendants. The commission's file indicated 

that P.D. Gravett Management Services had been terminated as a 
 4 

corporation six months before the accident. The owner of the 

property stated that P.D. Gravett was a general contractor 

retained as an independent contractor to supervise the building 

of residential houses. 

 "It is well established that any actions performed by the 

directors or officers after dissolution, if not related to the 

process of winding up the corporation's affairs, should be deemed 

individual actions, with concomitant individual liability 

therefor. If an entity is no corporation at all, the individuals 

who conduct its affairs must be personally liable for their 

acts." Hudgins v. IRS, 132 B.R. 115, 117-18 (E.D. Va. 1991). 

When Marsh was injured, Gravett as an individual was the general 

contractor and was not a representative of P.D. Gravett 

Management Services, which at that time did not exist. 

Therefore, Gravett was personally liable. 

 We affirm the decision of the commission as to all issues 

raised by the parties, except that we remand to the commission 

with instructions to vacate the award against P.D. Gravett 

Management Services and enter an award against P.D. Gravett as an 

individual. 

 Affirmed in part

and remanded.