COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

MARSHALL ERDMAN AND ASSOCIATES, INC. AND 

 LIBERTY MUTUAL FIRE INSURANCE COMPANY 

v. Record No. 2549-96-2 

EDWIN L. LOEHR, 

 GREGORY L. URSO (DECEASED) AND 

 UNINSURED EMPLOYER'S FUND OPINION BY 

 CHIEF JUDGE NORMAN K. MOON 

EDWIN L. LOEHR MAY 13, 1997 

v. Record No. 2586-96-2 

MARSHALL ERDMAN AND ASSOCIATES, INC., 

 LIBERTY MUTUAL FIRE INSURANCE COMPANY, 

 GREGORY L. URSO (DECEASED) AND 

 UNINSURED EMPLOYER'S FUND 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Roger L. Williams (Vasiliki Moudilos; 

Williams & Lynch, on briefs), for Marshall 

Erdman and Associates, Inc. and Liberty 

Mutual Fire Insurance Company. 

 Andrew J. Reinhardt (Kerns, Kastenbaum & 

Reinhardt, on briefs), for Edwin L. Loehr. 

 Christopher D. Eib, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General; Richard L. Walton, Jr., Senior 

Assistant Attorney General; John J. Beall, 

Jr., Senior Assistant Attorney General, on 

briefs), for Uninsured Employer's Fund. 

 No brief or argument for Gregory L. Urso 

(Deceased). 

 Marshall Erdman and Associates, Inc. and Liberty Mutual Fire 

Insurance Company appeal the decision of the Workers' 

Compensation Commission finding that injuries sustained by Edwin 
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L. Loehr arose out of and in the course of his employment with 

Marshall Erdman. Marshall Erdman contends that Loehr was an 

employee of Gregory L. Urso at the time of his injuries and that 

accordingly, the commission erred in holding it liable for 

Loehr's claims. 

 Loehr asserts that the commission properly determined that 

he was an employee of Marshall Erdman at the time of his 

injuries, but alternatively if he is found to have been an 

employee of Urso, an uninsured employer, he is entitled to be 

compensated by the Uninsured Employer's Fund. In Loehr's 

separate appeal, he asserts that the commission erred in 

suspending his temporary total disability benefits as of November 

23, 1995. 

 Holding that the evidence supports the finding that Loehr 

reasonably relied upon Urso's apparent authority as a Marshall 

Erdman supervisor, we affirm the commission's finding that 

Loehr's injuries arose out of and during the course of his 

employment with Marshall Erdman. We further hold that the 

commission's finding that Loehr was not entitled to disability 

benefits after November 23, 1995 was supported by credible 

evidence and, therefore, is affirmed. 

 In March, 1993, Loehr was hired by Marshall Erdman to work 

as a carpenter on a medical park construction job at Stony Point 

Shopping Center in Richmond, Virginia. Loehr was interviewed and 

hired by Urso, a Marshall Erdman employee and the supervisor of 
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the Stony Point construction project. On two separate occasions, 

Loehr was sent by Urso to another construction project in 

Williamsburg, Virginia, where a residence was being constructed. 

 At the Williamsburg site, Loehr worked with several other 

employees who also worked on the Stony Point project, including 

Larry Francis. Francis was the supervisor of the Williamsburg 

project and also served as a foreman on the Stony Point project. 

 Although there were no Marshall Erdman construction signs at the 

Williamsburg site, all materials and tools were provided by 

Marshall Erdman. In addition, Loehr was paid for his work on the 

Williamsburg and Stony Point projects in a single check issued by 

Marshall Erdman. 

 On July 12, 1993, the first occasion that Loehr worked at 

the Williamsburg site, he slipped and fell a distance of six 

feet. He experienced sharp pain throughout his upper body. 

Loehr reported the accident to his supervisor, Francis, and also 

discussed the accident with Urso the day after the fall. Urso 

instructed the Marshall Erdman secretary located at the Stony 

Point project to file the proper paperwork concerning the 

accident and advised Loehr of his actions. 

 Subsequently, Loehr received medical treatment from Dr. 

Zelouf for a herniated disk. Dr. Zelouf placed Loehr on 

restricted duty on March 14, 1995, prohibiting Loehr from lifting 

more than forty pounds while working. Loehr's regular job 

activities involved repeatedly lifting between one hundred and 
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one hundred twenty-five pounds during the course of each day. 

 On Loehr's second trip to the Williamsburg site on August 9, 

1993, he was again injured when an air gun he was using double 

shot, driving a nail through his finger. Loehr informed Francis 

and Urso of the injury the following day. Loehr was preparing to 

file a claim when Urso informed him that Urso would have to pay 

his medical bills because the Williamsburg construction project 

was in fact Urso's private residence and was not a project of 

Marshall Erdman. 

 Marshall Erdman became aware of the Williamsburg project in 

February, 1994, when an investigation by Marshall Erdman of cost 

overruns at the Stony Point project revealed that there were 

approximately eighteen thousand unaccounted man-hours on the 

Stony Point project. Marshall Erdman determined that while 

supervising the Stony Point project, Urso engaged in an 

unauthorized "side project" involving the construction of his 

private residence in Williamsburg. Urso had three to four 

workers from the Stony Point project working on his home in 

Williamsburg on a regular basis. Urso also used Marshall Erdman 

tools and building materials and included employee hours spent 

constructing his home in the work hours he submitted for payment 

by Marshall Erdman for work done on the Stony Point project. 

 Loehr ultimately filed claims for both injuries with 

Marshall Erdman. Marshall Erdman refused to pay Loehr's medical 

claims, asserting that he was not in their employ at the time of 
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his respective injuries. On March 29, 1996, a deputy 

commissioner of the Workers' Compensation Commission found 

Loehr's claims to be compensable and held Marshall Erdman liable. 

 The deputy commissioner's award included benefit amounts for 

various periods following the accident, including disability 

benefits in a weekly amount of $346.67 beginning November 23, 

1995. By opinion dated September 23, 1996 the full commission 

affirmed the deputy commissioner's finding that Loehr's injuries 

arose out of and in the course of his employment with Marshall 

Erdman. However, the commission found that Loehr was "not 

entitled to temporary total disability benefits during periods 

where there [was] no supporting medical evidence or sufficient 

proof of marketing." Accordingly, the commission reversed the 

deputy commissioner's award of temporary total disability 

benefits for the period beginning November 23, 1995. 

Employment Status

 Marshall Erdman admits that Loehr was its employee during 

the time he worked on the Stony Point project. However, Marshall 

Erdman asserts that Loehr was not its employee on either of the 

two days that he worked for Urso. Instead, it argues that Urso 

became Loehr's employer and as such, under the Virginia Supreme 

Court's ruling in Ideal Steam Laundry v. Williams, 153 Va. 176, 

149 S.E. 479 (1929), Urso should be held responsible for Loehr's 

injuries. We disagree and find that Urso's misuse of Marshall 

Erdman employees did not constitute a loaned-employee arrangement 
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and in accord with the law of agency, hold Marshall Erdman liable 

for Loehr's compensable injuries. 

 In Ideal Steam Laundry, the claimant was employed by J. T. 

Eanes trading as Ideal Steam Laundry, a laundry where the 

claimant was required to work four days a week. Id. Eanes also 

employed the claimant at his personal residence one day a week, 

where the claimant performed a variety of yard and farm work. 

Id. While building a grape arbor at Eanes' home, claimant was 

injured. The Virginia Supreme Court held that 

 "A servant may be transferred from his 

service for one master--who may have made the 

express contract for employment of the 

servant and may pay the latter his wages and 

be his general master--to the service of 

another person other than his general master; 

in which case . . . (2) the special servant 

must look to the special master for his 

indemnity, if he is injured, while the 

stipulated work is in progress, by dangerous 

conditions resulting from the special 

master's failure to fulfill one of those 

duties which the law imposes upon the master 

for the benefit and protection of their 

servants." 

Id. at 180-81, 149 S.E. at 481 (citation omitted). Marshall 

Erdman argues that under this holding, it cannot be held liable 

for Loehr's claims because Loehr was a "loaned-employee."1

 

 

 1 At the hearing before the deputy commissioner, counsel for 

Marshall Erdman appeared to agree with counsel for Loehr and the 

deputy commissioner that Marshall Erdman's theory was that Loehr 

became a loaned-employee of Urso. However, on brief, Marshall 

Erdman initially asserted that "[t]he deputy commissioner 

incorrectly relied on the cases concerning loaned employees" and 

argued that Loehr could not be a loaned-employee because to be a 

loaned-employee Marshall Erdman would have had to have consented 

to loaning Loehr to Urso. Nevertheless, later in its brief, 

Marshall Erdman argues that under the Virginia Supreme Court's 
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 For an employee to be a loaned-employee, the borrowing 

employer must (1) acquire the right to control and direct the 

employee, and (2) the employee must indicate, whether expressly 

or impliedly, consent to becoming the employee of the borrowing 

employer. See id. at 180, 149 S.E. at 481. Here, as Marshall 

Erdman admits, Urso never obtained the right to use Marshall 

Erdman employees for work on anything other than the Stony Point 

project. Further, the record does not support the conclusion 

that Loehr either explicitly or impliedly consented to becoming 

Urso's individual employee. 

 Urso's failure to obtain permission to use or hire Marshall 

Erdman employees to construct his private residence and Loehr's 

lack of explicit or implied consent to working for an employer 

other than Marshall Erdman, distinguish this case from Ideal 

Steam Laundry. Therein, the employer and borrowing employer were 

the same individual, obviating the need to prove that permission 

was granted for the loan of the claimant. The claimant, unlike 

Loehr, impliedly agreed to work for a different employer as the 

nature of the work was not in the "usual course of the trade, 

business, occupation or profession of the [loaning] employer." 

Id. at 179, 149 S.E. at 481. While working at the laundry, the 

claimant performed janitorial duties, but performed yard work and 

garden/farm work at the laundry owner's home. Id. The obvious 

 

ruling in Ideal Steam Laundry, a loaned-employee can only look to 

the special master for compensation and therefore, that Loehr 

should be limited to seeking indemnification from Urso. 
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difference in the nature of the work evidences the claimant's 

understanding that he was performing in two different employment 

capacities. 

 Unlike the situation in Ideal Steam Laundry, here the record 

establishes that Loehr, relying on the apparent authority of 

Urso, believed that the work he performed in Williamsburg was for 

Marshall Erdman. The law of agency provides that "when an agent, 

acting within the scope of his apparent agency, enters into a 

contract with a third person `the principal becomes immediately a 

contracting party, with both rights and liabilities to the third 

person.'" Equitable Variable Life Ins. v. Wood, 234 Va. 535, 

539, 362 S.E.2d 741, 744 (1987) (quoting Restatement (Second) of 

Agency § 8 comment d (1957)). Accordingly, Marshall Erdman may 

be held liable for Loehr's injuries if Urso acted within the 

scope of his apparent authority. "An act is within the apparent 

scope of an agent's authority if, in view of the character of his 

actual and known duties, an ordinarily prudent person, having a 

reasonable knowledge of the usages of the business in which the 

agent is engaged, would be justified in believing that he is 

authorized to perform the act in question." Wright v. 

Shortbridge, 194 Va. 346, 353, 73 S.E.2d 360, 364-65 (1952) 

(citations omitted). 

 Marshall Erdman asserts that "[i]t is incredible to believe 

that [Loehr], hired to build a medical office building in 

Richmond, would . . . think that his employment would include 
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work performed on a personal residence in Williamsburg." 

However, the record is devoid of evidence suggesting that Loehr 

was ever made aware of the fact that he was not in Marshall 

Erdman's employ while working on both construction jobs. 

Further, the record contains substantial evidence supporting the 

findings of both the deputy commissioner and full commission, 

which will be upheld on appeal if supported by credible evidence, 

James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 

S.E.2d 487, 488 (1989), that Loehr believed he was a Marshall 

Erdman employee at all times. 

 The record does not reflect that Loehr was told at the time 

of his hiring that his work would be limited to the Stony Point 

project. Urso hired Loehr to work as a carpenter, and he was 

employed in that capacity at both job sites. There is no 

evidence to suggest that Loehr was aware of the fact that 

Marshall Erdman only constructs medical offices and facilities. 

The record does establish that work materials and tools at the 

Williamsburg site belonged to Marshall Erdman. Other Marshall 

Erdman employees from the Stony Point project were also working 

at the Williamsburg site, and the Williamsburg supervisor was 

also a foreman on the Stony Point project. Loehr was compensated 

for all the construction work he performed in a single check 

issued by Marshall Erdman. The evidence also establishes that 

Loehr was told by Urso that a claim would be filed with Marshall 

Erdman after his first accident at the Williamsburg site. Not 
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until after his second accident was Loehr informed that the 

Williamsburg job was not a Marshall Erdman project. 

 The evidence is sufficient to support the finding that an 

ordinarily prudent person in Loehr's position could have 

believed, as Loehr did, that Urso had the authority as a Marshall 

Erdman supervisor to hire and supervise work crews on both the 

Stony Point and Williamsburg construction projects. Accordingly, 

we affirm the commission's ruling that Marshall Erdman compensate 

Loehr for injuries arising out of and in the course of his 

employment with Marshall Erdman. 

 Suspension of Temporary Total Disability Benefits

 As previously noted, findings of fact of the Workers' 

Compensation Commission are conclusive on appeal, provided they 

are supported by credible evidence. James, 8 Va. App. at 515, 

382 S.E.2d at 488. Further, the evidence is to be construed in 

the light most favorable to the party prevailing before the 

commission. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. 

App. 503, 339 S.E.2d 916 (1986). 

 The commission determined that the evidence did not support 

a finding of disability for the period beginning November 23, 

1995. There is no presumption in the law that once a disability 

has been established, a claimant will be assumed to remain 

disabled for an indefinite period of time. Hercules, Inc. v. 

Carter, 14 Va. App. 866, 419 S.e.2d 438 (1992). To the contrary, 

a party seeking compensation bears the burden of proving his 
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disability and the periods of that disability. 

 Here, the latest medical record presented to the commission 

at the time of Loehr's hearing was a letter from Dr. Zelouf, 

Loehr's treating physician, dated March 27, 1995, some ten months 

prior to the hearing before the deputy commissioner and seventeen 

months prior to the hearing before the full commission. In the 

letter, Dr. Zelouf indicated that he had previously placed Loehr 

on light duty, restricting his lifting to forty pounds or less. 

However, Dr. Zelouf also indicated that, "[c]ertainly as [Loehr] 

improved, I would progress him to full duties." The letter did 

not indicate the last occasion upon which Loehr had been treated, 

how long the partial disability was expected to continue, or 

when, if ever, Loehr would receive additional medical evaluation. 

 Given the absence of proof of continuing disability and the 

evidence that Loehr would eventually be returned to full duties, 

the commission had credible evidence upon which to find that 

Loehr was not entitled to disability benefits after November 23, 

1995. Consequently, we need not reach the question of whether 

the commission erred in determining that Loehr failed to 

adequately market his remaining work capacity.2

 We affirm the commission's decision awarding Loehr 

disability benefits until November 23, 1995. 

 Affirmed. 

 

 2

 The parties stipulated that this defense was not being 

advanced.