Truteam and Ace American Insurance v. Gloria C. DeQuintanilla ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, O’Brien and Russell
UNPUBLISHED
Argued by videoconference
TRUTEAM AND
ACE AMERICAN INSURANCE COMPANY
MEMORANDUM OPINION* BY
v. Record No. 0719-21-4 JUDGE RANDOLPH A. BEALES
FEBRUARY 1, 2022
GLORIA C. DEQUINTANILLA
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Matthew J. Griffin (Lucas & Kite, PLC, on brief), for appellants.
Richard M. Reed (The Reed Law Firm, P.L.L.C., on brief), for
appellee.
Truteam and its insurance provider, Ace American Insurance Company (collectively
“Truteam”), appeal the unanimous decision of the Virginia Workers’ Compensation Commission
(“the Commission”) awarding continuing temporary total disability benefits for one of Truteam’s
employees, Gloria DeQuintanilla. DeQuintanilla was injured when she fell from an attic while
working for Truteam. On appeal, Truteam contends that the Commission erred in finding
DeQuintanilla’s injuries to be compensable even though she was not wearing a safety harness at the
time of the accident. See Code § 65.2-306(A)(5). In addition, Truteam argues that “[t]he
Commission erred in its rulings/finding on [DeQuintanilla’s] disability and entitlement to wage loss
benefits.” Truteam also contends that the Commission erred in affirming the deputy
commissioner’s denial of Truteam’s motion to exclude, in affirming the deputy commissioner’s
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
granting of DeQuintanilla’s motion to quash, in its credibility findings, and in allegedly failing to
comply with Code § 65.2-705.
I. BACKGROUND
In July 2019, Gloria DeQuintanilla was hired by Truteam to install wall insulation. A few
months later, Richard Leake, the production manager in charge of attic installation, temporarily
assigned DeQuintanilla to work with Aaron Travis Harrison in installing attic insulation.
DeQuintanilla worked with Harrison for approximately two and a half months preceding her
accident. Her main responsibility was to load insulation material into the hopper – a machine that
grinds up insulation to be blown into the attic. However, she also helped Harrison, working with
him in attics on a weekly basis.
On November 25, 2019, while working for a subsidiary of Truteam, DeQuintanilla was
using a foam pistol to seal wood in an attic when she fell approximately eight feet through the
sheetrock to the floor below landing on her right side. She was not wearing a safety harness.
Initially unable to get up, DeQuintanilla eventually managed to stand up and actually returned to
work.
Later that day, DeQuintanilla went to the hospital. She complained of “throbbing pain to
[her] head, neck, back and right hip.” An examination and tests revealed that she fractured her
lumbar vertebrae and a rib on her right side. She also suffered a head injury and multiple
contusions. The hospital released DeQuintanilla the same day with a note stating that she “[m]ust
be cleared by MD before returning to work.”
On December 18, 2019, DeQuintanilla filed a claim with the Commission for injuries to her
right hip, right ribs, stomach, back, right leg, and right wrist, and for a concussion. DeQuintanilla
claimed that she sustained these injuries when she “tripped and fell through [the] ceiling onto [the]
floor below.” She sought ongoing temporary total disability benefits, medical benefits, and
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payment of medical bills and prescriptions. In December 2019, DeQuintanilla began seeing
Dr. Ashok Gowda for the injuries she sustained from her fall. She saw him periodically for
follow-up appointments. Dr. Gowda’s records reflect that DeQuintanilla consistently complained of
pain in her lower back and frequently complained of numbness in her lower extremities.
Furthermore, Dr. Gowda reported that basic activities aggravated the pain (e.g., walking, sitting,
standing, bending, etc.) and found her unable to work after each visit. Dr. Gowda’s records from
November 3, 2020 reflect that DeQuintanilla suffered from “[b]ack pain [that] radiates to the right
hip and right lower extremity” and “[s]tanding, floor exercises, walking, and climbing stairs
aggravates the pain.” He determined that she was “unable to work due to pain” and listed diagnoses
of “Cervical & Lumbar Radiculopathy, Vertebral: Rib Fracture.” Furthermore, he noted that he
wanted to follow up with DeQuintanilla in four weeks.
A hearing before the deputy commissioner was held on November 20, 2020. At the time of
the hearing, DeQuintanilla had amended her claimed injuries to include cervical sprain, chest,
lumbar sprain, L1 through L5 vertebrae fractures, and both ankles. At the hearing, DeQuintanilla
testified through a translator because she does not speak English. She testified before the deputy
commissioner that she continues to suffer from dizziness, headaches, photosensitivity, and pain in
her lumbar spine, feet, ankles, and right pelvis area. She also testified that Dr. Gowda had not yet
released her to work and that she had not worked at all since the accident.
At the hearing, Truteam argued that DeQuintanilla’s injuries resulted from her willful
violation of a known safety rule and, therefore, were not compensable. The parties agree that
Truteam had a rule requiring employees to wear a safety harness “if exposed to a fall of 6 feet” or
more. At the time of the accident, DeQuintanilla was exposed to a fall of approximately eight feet.
Sorbellio Villalta Cruz, a representative for Truteam, testified that Truteam had regular
safety meetings at which protection from falls was discussed. He testified that he often translated
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those safety meetings when he was there and could recall one meeting that he attended during which
the safety harness requirement was discussed. Although DeQuintanilla recalled having attended
two safety trainings about protection from falls, including the one Cruz recalled attending, she
testified that Truteam only showed employees how to properly secure ladders at those meetings and
never trained her on the use of a safety harness. Furthermore, she testified that she was never given
a safety harness.
When asked how the safety policies were enforced, Leake testified that Truteam enforced its
safety harness policy by job site inspections. However, when Harrison was asked whether job site
inspections were usual, he responded, “It varies during the weeks.” There was also testimony that
Leake never showed up when DeQuintanilla was actually working in the attic during the two and a
half months she worked with Harrison.
Leake testified that Harrison was the “lead man” on the job site where DeQuintanilla
worked. According to Leake, the “lead man” has control over the day-to-day activities on the job
site in Leake’s absence and also has the responsibility to ensure that the job site is safe. Leake
testified that if the job site was not safe and management could not be reached, Harrison had the
authority to shut down the job site until it was made safe. Furthermore, Harrison testified that, when
it was just he and DeQuintanilla on the job site, he was the one who decided what work to do and
how to do it.
Harrison knew that Truteam required employees to wear a safety harness when exposed to
certain heights. Nevertheless, he testified that, in the two and a half months he and DeQuintanilla
had worked together, he had “never seen her [DeQuintanilla] with one [a safety harness] on.”
Furthermore, Harrison testified that he did not always wear a safety harness himself. DeQuintanilla
testified that she never saw Harrison wearing a safety harness while in the attic during the two and a
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half months they worked together. Harrison also testified that neither of them was wearing a safety
harness on the day of the accident.
At the beginning of the hearing, both DeQuintanilla and Truteam exchanged their
medical designations, which the deputy commissioner then admitted into the record. Neither
party objected to the medical designations at that time. Just prior to commencing with
testimony, the deputy commissioner asked whether either party wanted to address any further
preliminary matters. Counsel for Truteam and counsel for DeQuintanilla both declined.
However, after all but one witness had testified, Truteam made a motion to exclude several of
DeQuintanilla’s medical records on the grounds that they were not timely produced or given to
Truteam.1 The deputy commissioner denied the motion to exclude, explaining that Truteam failed
to timely make its motion (waiting until the hearing had nearly concluded) and that “the
Commission rarely excludes medical evidence” in matters before it. Although he denied the motion
to exclude, the deputy commissioner gave Truteam seven days to inform him whether Truteam
wanted to submit any rebuttal evidence or to cross-examine witnesses. Three days later, Truteam
informed the deputy commissioner that it had decided not to avail itself of any of the options that
the deputy commissioner had offered and instead insisted that “the only remedy is exclusion of the
evidence at issue.” Truteam also stated that “it would then appear appropriate to close the record
and proceed to issuance of the Opinion in this matter.”
On November 30, 2020, ten days after the hearing, the deputy commissioner closed the
evidentiary record. That same day Truteam mailed interrogatories to DeQuintanilla seeking
information on whether DeQuintanilla had produced and submitted her medical records in
compliance with Rule 4.2 of the Commission. DeQuintanilla filed a motion to quash discovery,
1
Truteam ultimately sought to exclude approximately 60% of DeQuintanilla’s medical
records.
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which the deputy commissioner granted, given that he had already offered Truteam several
remedies due to DeQuintanilla’s untimely submission of some of her medical records.
The deputy commissioner issued an opinion on December 10, 2020, in which he found
some of DeQuintanilla’s injuries compensable. Although DeQuintanilla was not wearing a safety
harness at the time of her accident, the deputy commissioner found that Truteam did not make a
bona fide effort to enforce its rule requiring use of the safety harness. The deputy commissioner
entered an award for temporary total disability benefits from November 25, 2019 and for the cost of
medical treatment causally related to her compensable injuries: “concussion, right posterior ninth
rib fracture, chest contusion and transverse process fractures of the lumbar vertebrae at L1-5.”
However, he denied the rest of DeQuintanilla’s claims.
Truteam then filed an appeal with the full Commission. After a review of the entire record,
the full Commission issued an opinion on June 15, 2021, unanimously affirming the deputy
commissioner. First, the full Commission “agree[d] with the Deputy Commissioner that the
employer’s safety rule was not kept alive by bona fide enforcement.” The full Commission noted
that DeQuintanilla “never wore a safety harness in an attic during the two and a half months she
worked” with Harrison. The full Commission also emphasized that Harrison – who was the lead
man on the job site – only sometimes wore a safety harness and that he was also not wearing a
harness at the time of the accident.
Second, the full Commission found that the deputy commissioner was not obligated to
exclude DeQuintanilla’s medical records simply because they were produced late, and further found
that the motion to exclude was not timely made. The full Commission stated that even though the
deputy commissioner declined to exclude DeQuintanilla’s medical records, he “offered the
defendants seven days to decide whether to offer post-hearing evidence,” but Truteam “elected not
to do so, cognizant of the potential consequences.” Consequently, the full Commission ruled that
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“[t]he Deputy Commissioner acted within his sound discretion to craft a remedy fair to all parties,”
and affirmed the deputy commissioner’s decision.
Third, the full Commission held that the deputy commissioner did not abuse his discretion in
granting the motion to quash Truteam’s interrogatories because the discovery requests were no
longer relevant to issues pending before the Commission. The interrogatories were not necessary
given that the deputy commissioner had ruled that DeQuintanilla’s medical records were produced
late and had already afforded Truteam an opportunity to seek post-hearing relief as a remedy.
Fourth, the full Commission found that there was no need for an adverse credibility
determination simply because it found some, but not all, of DeQuintanilla’s injuries compensable.
Specifically, it found, “The denial of some of the claimed injuries did not require an adverse
credibility finding” or “necessitate discrediting the entirety of her testimony.”
Finally, the full Commission found the evidence sufficient to show an ongoing temporary
total disability because the medical records indicated that DeQuintanilla suffered fractures of her
vertebrae from her fall and because her pain and ongoing disability were related to the vertebrae
fractures that she sustained.
Truteam filed a motion for reconsideration, which the Commission denied. Truteam now
appeals to this Court.
II. ANALYSIS
A. Standard of Review
On appeal, appellants bear “the ‘burden of showing’ that the Commission committed
‘reversible error.’” Jones v. Crothall Laundry, 69 Va. App. 767, 774 (2019). “[T]he full
[C]ommission is the factfinder for [C]ommission proceedings.” Meidan, Inc. v. Leavell, 62
Va. App. 436, 442 (2013); see Code § 65.2-201. As such, “the Commission’s factual findings are
‘conclusive and binding’ if ‘supported by credible evidence.’” Jones, 69 Va. App. at 774 (quoting
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Layne v. Crist Elec. Contractor, Inc., 64 Va. App. 342, 350 (2015)). This is true “even [if] there is
evidence in the record to support a contrary finding.” Id. (alteration in original) (quoting City of
Waynesboro v. Griffin, 51 Va. App. 308, 317 (2008)). On appeal, this Court “simply does not ‘retry
the facts, reweigh . . . the evidence, or make [its] own determination of the credibility of the
witnesses.’” Id. (alteration in original) (quoting Layne, 64 Va. App. at 345). Such deference to the
Commission, however, does not extend to questions of law, which this Court reviews de novo.
Rusty’s Welding Service, Inc. v. Gibson, 29 Va. App. 119, 127 (1999) (en banc).
“When a challenge is made to the [C]ommission’s construction of its rules, our review is
limited to a determination of whether the [C]ommission’s interpretation of its own rule was
reasonable. We will not set aside the [C]ommission’s interpretation of its rules unless that
interpretation is arbitrary and capricious.” Diaz v. Wilderness Resort Ass’n, 56 Va. App. 104, 114
(2010) (quoting Boyd v. People, Inc., 43 Va. App. 82, 86-87 (2004)).
B. Willful Breach of a Workplace Safety Rule
In Truteam’s first assignment of error, it argues that “[t]he Commission erred in its
rulings/findings on whether the claim is barred by Virginia Code § 65.2-306 based on willful
misconduct and violation of a safety rule.”2 Specifically, at issue in this appeal is whether Truteam
made a bona fide effort to enforce its safety harness rule such that DeQuintanilla’s claim is barred
under Code § 65.2-306(A)(5).
A claimant is prohibited by statute from being awarded compensation when their workplace
injury was caused by “[t]he employee’s willful breach of any reasonable rule or regulation adopted
by the employer and brought, prior to the accident, to the knowledge of the employee.” Code
2
Although Truteam refers both to willful misconduct (Code § 65.2-306(A)(1)) and to
willful violation of a safety rule (Code § 65.2-306(A)(5)) in its assignment of error, the
Commission’s decision in this case rested on DeQuintanilla’s violation of a reasonable safety
rule. Therefore, we address this assignment of error under Code § 65.2-306(A)(5) only.
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§ 65.2-306(A)(5). However, an “employee may rebut the defense by showing that the rule was not
kept alive by bona fide enforcement.” Gwaltney of Smithfield, Ltd. v. Hagins, 32 Va. App. 386, 393
(2000) (quoting Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 332 (1993)). “Whether the
evidence was sufficient to demonstrate that the safety rule was not strictly enforced is a mixed
question of law and fact[.]” Id. (citing Virginia Electric & Power Co. v. Kremposky, 227 Va. 265,
270 (1984)).
As the Supreme Court of Virginia has stated, “[t]he statutory defense of wilful disobedience
of safety rules or wilful failure to use a safety device will succeed only . . . if the rule is kept alive by
Bona fide enforcement.” Peanut City Iron & Metal Co. v. Jenkins, 207 Va. 399, 404 (1966)
(quoting Larson, Workmen’s Compensation Law, Vol. 1, s 33.00, p. 480); see also Buzzo, 17
Va. App. at 332. Thus, “[a]t the heart of the matter” is whether Truteam made “‘a conscientious,
bona fide effort . . . to require claimant and the other employees to fully comply with the rule at all
times.’” Mouhssine v. Crystal City Laundry, 62 Va. App. 65, 76 (2013) (quoting Jenkins, 207 Va.
at 406).
“Proof of a pattern or practice of failing to discipline employees guilty of willful violations
of a safety rule defeats the defense afforded an employer by Code § 65.1-38, but only when such
violations occur ‘under circumstances charging the employer with knowledge and acquiescence.’”
Kremposky, 227 Va. at 270-71 (quoting Jenkins, 207 Va. at 404). An employer is charged with
knowledge and acquiescence when “someone in a supervisory capacity representing the employer
was aware that the safety rule was being violated.” Mouhssine, 62 Va. App. at 81; see also Hagins,
32 Va. App. at 394 (agreeing with the Commission that “someone in a supervisory capacity
representing the employer was aware that the safety rule was being violated” where Hagins’s crew
leader “was responsible for her training” and “was also responsible for enforcing the safety rules”).
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There was testimony that Leake – the Truteam production manager who is in charge of
numerous Truteam job sites – was never at the job sites in question in this case at any of the times
that DeQuintanilla was working in the attic. In his absence, he relied on the “lead man” at each job
site to control day-to-day activities and to ensure that the job site was safe. In this case, Harrison –
the lead man – had control over what DeQuintanilla did and how she did it on the job site.3
Harrison never saw DeQuintanilla wear a safety harness while in the attic at any point during the
two and a half months they worked together. Despite being responsible for job site safety, the
record does not reflect that Harrison ever reported DeQuintanilla’s failure to wear a safety harness
to management, ever shut down the job site until she put her safety harness on, ever informed her
that she needed to wear a safety harness, or ever showed her how to put on a safety harness.
Furthermore, Harrison himself only sometimes wore his harness even though he knew the rule and
the purported potential consequences for not wearing it. In addition, none of the witnesses who
testified before the deputy commissioner could recall any instance of an employee being punished
for failure to wear a safety harness prior to DeQuintanilla’s fall. All of these facts demonstrate that
at least one person with supervisory capacity knew of DeQuintanilla’s failure to wear a safety
harness for two and a half months and made no bona fide effort to enforce the safety harness rule on
the job sites at which DeQuintanilla worked. Therefore, we hold that the Commission did not err in
concluding that DeQuintanilla’s claim was not barred by Code § 65.2-306(A) because Truteam
failed actually to keep the safety harness rule alive by bona fide enforcement.
3
Truteam contends that the Commission erred in finding that Harrison was
DeQuintanilla’s “lead man.” However, credible evidence in the record shows that the production
manager identified Harrison as the “lead man” at DeQuintanilla’s job site who had control over
day-to-day activities. Furthermore, Harrison testified that, between himself and DeQuintanilla,
he was the one who decided what to do and how to do it. Thus, it is a reasonable inference that
DeQuintanilla was subject to Harrison’s direction. Therefore, the Commission did not err in
finding Harrison to be the “lead man” at the job site where DeQuintanilla was working.
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C. Motion to Exclude
In Truteam’s second assignment of error, it contends that the Commission erred in denying
Truteam’s motion to exclude DeQuintanilla’s medical records. Specifically, Truteam argues that
“[t]he Commission’s ‘interpretation’ of Rule 4.2 and refusal to apply and enforce its own rule was
unreasonable, arbitrary and capricious, and constitutes an abuse of discretion and denial of due
process.”
Rule 4.2 of the Commission provides, “Each party shall promptly provide the other parties
with copies of any medical records they receive as they receive them,” and directs the parties to “file
with the Commission only medical records that are related to the hearing request” to “be filed upon
receipt by the party filing them.” In its opinion, the Commission acknowledged that DeQuintanilla
had not “produced [her medical records] in discovery or filed [them] pursuant to Rule 4.2.” In
relevant part, Rule 1.12 of the Commission provides, “In addition to the statutory authority of the
Commission to levy fines, to assess attorney fees and punish contempt, the Commission may
enforce its rules and the provisions of the Workers’ Compensation Act . . . by . . . exclusion of
evidence from the record.” (Emphasis added). The use of the phrase “may enforce its rules”
supports the conclusion that the Commission is not obligated to exclude evidence from the record
when its rules are violated. The plain language of Rule 1.12 gives the Commission discretion over
what, if any, sanction the Commission gives for the violation of one of its rules. See Jeff Coal, Inc.
v. Phillips, 16 Va. App. 271, 278 (1993).
Here, Truteam did not make its motion to exclude until the hearing before the deputy
commissioner had almost concluded despite the fact that the parties had exchanged medical
designations at the beginning of the hearing. Therefore, the full Commission found in its opinion
that Truteam “failed to make a timely objection to medical records which had not been produced in
discovery or filed pursuant to Rule 4.2.”
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Given that Truteam failed to timely make its motion, waiting until almost all testimony had
been taken and the hearing nearly concluded, the deputy commissioner denied Truteam’s motion.
Nonetheless, the deputy commissioner offered Truteam other remedies, including the opportunity to
cross-examine witnesses or offer rebuttal evidence. The deputy commissioner gave Truteam seven
days to notify him of the remedy it was selecting, but Truteam refused to avail itself of any of the
options afforded Truteam by the deputy commissioner, who acted well within his discretion in
offering Truteam these alternative remedies instead of imposing the rather drastic sanction of
excluding the bulk of DeQuintanilla’s medical records. Therefore, we cannot say that the
Commission erred here or abused its discretion by upholding the deputy commissioner on this point.
D. Motion to Quash
In Truteam’s third assignment of error, it states, “The Commission erred in its
rulings/finding granting/affirming the quashing of the defendants’ [Truteam’s] Interrogatories and
Requests for Production of Documents.” Truteam further argues that the Commission “erred in
finding/stating that the requests were no longer relevant to the issues before the Commission.”
Rule 1.8(A) of the Commission provides that the scope of discovery in matters before the
Commission “shall extend only to matters which are relevant to issues pending before the
Commission and which are not privileged.”
Truteam’s interrogatories sought to discover whether DeQuintanilla had timely produced
and submitted her medical records. However, the deputy commissioner had already denied
Truteam’s motion to exclude DeQuintanilla’s medical records for failure to timely produce them,
and the deputy commissioner had done so under the presumption “that the medical records in
question had not been produced in advance of the hearing.” In other words, the deputy
commissioner had already ruled on that issue and had already afforded “the defendants [Truteam]
the opportunity to seek post-hearing relief” due to DeQuintanilla’s late filing of her medical records.
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Therefore, we cannot say that the Commission erred in finding that the issue of whether
DeQuintanilla had timely filed and produced her medical records was no longer an issue pending
before the Commission. Consequently, the Commission did not abuse its discretion in affirming the
deputy commissioner’s decision to quash certain interrogatories from Truteam seeking discovery.
See Commission Rule 1.8(A).
E. Ongoing Temporary Total Disability
In Truteam’s fourth assignment of error, it argues that the evidence before the Commission
was insufficient to support a finding of ongoing “disability and entitlement to wage loss benefits”
related to the compensable injuries sustained by DeQuintanilla during her fall.
When a party seeks workers’ compensation benefits, “[the] party seeking compensation
bears the burden of proving his disability and the periods of that disability.” Marshall Erdman &
Associates, Inc. v. Loehr, 24 Va. App. 670, 679 (1997). “Whether [a claimant] suffered a
continuing disability is also a question of fact” which will not be disturbed on appeal if supported by
credible evidence in the record. Hoffman v. Carter, 50 Va. App. 199, 216 (2007); see Jones, 69
Va. App. at 774. “In determining whether credible evidence exists, the appellate court does not
retry the facts, reweigh the preponderance of the evidence, or make its own determination of the
credibility of the witnesses.” Wagner Enterprises, Inc. v. Brooks, 12 Va. App. 890, 894 (1991).
Because as noted supra the Commission did not err in affirming the deputy commissioner’s
denial of Truteam’s motion to exclude DeQuintanilla’s medical records, the Commission properly
considered the medical records DeQuintanilla submitted. These medical records show that
DeQuintanilla continues to suffer from significant lower back pain and increased pain while
performing basic daily activities since the accident. During the hearing, DeQuintanilla likewise
testified that she continues to have pain in her lumbar spine and that the area around her right pelvis
still hurts. It is a reasonable inference that the pain DeQuintanilla continues to suffer from is related
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to the compensable injuries she sustained from her November 25, 2019 fall. When DeQuintanilla
was first treated for her injury, the hospital released her with a note stating that she “[m]ust be
cleared by MD before returning to work.” She received medical treatment for her injuries from
Dr. Gowda, seeing him regularly between December 2019 and November 2020. His most recent
patient notes at the time of the hearing stated that DeQuintanilla was still “unable to work due to
pain” and indicated that she was to follow up with him in about four weeks. Therefore, there is
certainly credible evidence in the record to support the Commission’s finding that DeQuintanilla
continues to suffer temporary total disability related to the factures of her vertebrae that she
sustained from the fall. Consequently, we cannot say that the Commission erred in its unanimous
ruling awarding DeQuintanilla continuing temporary total disability benefits since November 25,
2019.
F. Failure to Make an Explicit Adverse Credibility Determination
In Truteam’s fifth assignment of error, it argues, “The Commission erred in its
rulings/findings on credibility and its decision that an adverse credibility determination was not
necessary/warranted.” Truteam contends that the full Commission “erred in not explicitly stating an
adverse credibility finding against the claimant” because “[t]he evidence presented proved the
claimant was not credible.” Essentially, Truteam argues that, because the deputy commissioner
and full Commission rejected portions of DeQuintanilla’s claim, the record demonstrated that
DeQuintanilla was unworthy of belief and, therefore, that the Commission erred in failing to
make such a finding on the record.
Given that “the full [C]ommission is the factfinder for [C]ommission proceedings,” Meidan,
Inc., 62 Va. App. at 442, it is well-established that “[w]e do not judge the credibility of witnesses or
weigh the evidence on appeal,” Celanese Fibers Co. v. Johnson, 229 Va. 117, 121 (1985).
Furthermore, “[t]he power to segregate a witness’s testimony into the believable, partly believable,
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or wholly unbelievable is an exercise of decisional discretion intrinsic to the factfinding task and
essential to its proper performance.” Harper v. Commonwealth, 49 Va. App. 517, 523 (2007).
In this case, the full Commission, noting that it had “reviewed the record in its entirety” and
having found some but not all of DeQuintanilla’s injuries compensable, concluded that “[t]he denial
of some of the claimed injuries did not require an adverse credibility finding.” The full Commission
stated that DeQuintanilla “alleged many possible injuries, which was necessary to avoid claim
preclusion,” but noted that the fact that she failed to carry her burden of proof on some of the
possible injuries “did not necessitate discrediting the entirety of her testimony.” These findings
were consistent with the Commission’s role as factfinder, and given that “an appellate court lacks
the fact-finder’s ability to hear and see the witnesses and assess their credibility,” Bratton Est. of
Slone v. Selective Ins. Co. of Am., 290 Va. 314, 318 (2015) (quoting Mongold v. Woods, 278 Va.
196, 204 (2009)), we will not disturb these findings by the Commission concerning DeQuintanilla’s
credibility. Moreover, “[t]he law does not require the commission to state its reasons for believing
one witness over another.” Bullion Hollow Enterprises, Inc. v. Lane, 14 Va. App. 725, 729 (1992)
(quoting Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 383 (1987)). Therefore, for these
reasons, we hold that Truteam has failed to show any error in the Commission’s credibility findings
or in its decision that an adverse credibility determination was neither necessary nor warranted here.
G. Commission’s De Novo Review of the Evidence
In Truteam’s sixth assignment of error, it contends that “[t]he Commission erred in failing to
conduct a de novo review as required by Virginia Code § 65.2-705.” Truteam argues that “review
by the Full Commission is to be a de novo review” and that “the review by the Commission and
opinion issued on June 15, 2021 do not comport with the statutory requirements.”
Code § 65.2-705(A) provides that, when an application for review is made to the
Commission, the full Commission shall
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review the evidence or, if deemed advisable, as soon as practicable,
hear the parties at issue, their representatives, and witnesses. The
Commission shall make an award which, together with a statement
of the findings of fact, rulings of law, and other matters pertinent to
the questions at issue, shall be filed with the record of the
proceedings.
Truteam offers no argument on brief in support of its contention that the Commission’s
opinion in this case failed to comport with the requirements of Code § 65.2-705(A). “Statements
unsupported by argument, authority, or citations to the record do not merit appellate consideration.”
Buchanan v. Buchanan, 14 Va. App. 53, 56 (1992); see Rule 5A:20(e) (“The opening brief of
appellant must contain . . . [t]he standard of review and the argument (including principles of law
and authorities) relating to each assignment of error.”). Moreover, the full Commission reviewed
the entire record in this case and provided a written opinion setting forth its findings of fact and
conclusions of law pertaining to the issues Truteam brought before the Commission. See Code
§ 65.2-705(A). Therefore, we hold that the full Commission did not err.
III. CONCLUSION
In short, we cannot say that the Commission erred in its unanimous decision awarding
DeQuintanilla continuing temporary total disability benefits for injuries sustained during her fall on
November 25, 2019. While Code § 65.2-306(A) generally bars an employee’s claim before the
Commission for an injury sustained by a willful breach of an employer’s safety rule, an employee
may overcome this bar by showing that the safety rule was not actually kept alive by any bona fide
enforcement. In this case, Truteam failed to make a bona fide effort to enforce its safety harness
rule for its employee, claimant Gloria DeQuintanilla. For two and a half months, DeQuintanilla
worked under her “lead man,” Travis Harrison, by going into an attic at a worksite on a weekly
basis while never wearing a safety harness, as required by the employer’s safety rules. However,
during all of the time that she worked for Truteam, the record is devoid of any attempt by Harrison
to correct her behavior or even to show her how to actually wear a safety harness. In addition,
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Harrison himself did not frequently wear a safety harness while he was working in the attic.
Furthermore, Harrison’s boss and project manager, Richard Leake, reportedly did not regularly visit
the job site and thereby check on the adherence to the safety rule either. Therefore, we hold that the
Commission did not err in its ruling that DeQuintanilla’s claim was not barred under Code
§ 65.2-306 because the evidence is sufficient to conclude Truteam failed to adequately enforce its
own safety rule.
In addition, DeQuintanilla’s medical records and her testimony support the Commission’s
conclusion that DeQuintanilla’s ongoing pain and disability are related to her accident. The record
demonstrates that DeQuintanilla suffered fractures in her vertebrae from her fall. She continues to
suffer from significant pain in her lower back, and the medical records reflect that her doctor
continues to keep her out of work due to pain. Therefore, because credible evidence exists in the
record to support the Commission’s findings, we cannot say that the Commission erred in its ruling
that DeQuintanilla has a compensable injury.
We also find no error in the Commission’s ruling that affirmed the deputy commissioner’s
denial of Truteam’s motion to exclude DeQuintanilla’s medical records. Although the Commission
found that DeQuintanilla did not submit her medical records in compliance with the Commission’s
Rule 4.2, the full Commission noted that “the Deputy Commissioner offered the defendants
[Truteam] seven days to decide whether to offer post-hearing evidence. They elected not to do so,
cognizant of the potential consequences.” Consequently, we hold that the full Commission did not
err in finding that the deputy commissioner did not abuse his discretion in denying the motion to
exclude because Truteam did not timely make its motion to exclude (hampering the deputy
commissioner’s ability to conduct the hearing) and because the deputy commissioner fashioned a
remedy that was fair to both parties.
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In addition, the Commission did not err in affirming the deputy commissioner’s granting of
DeQuintanilla’s motion to quash certain Truteam interrogatories because the issue raised in those
particular interrogatories was no longer relevant to issues pending before the Commission. Those
interrogatories sought to discover whether DeQuintanilla submitted her medical records in
compliance with Commission Rule 4.2. However, the deputy commissioner had already assumed
that she had not timely submitted her medical records and had still denied the motion to exclude
under this assumption. Therefore, we cannot say that the Commission abused its discretion in
affirming the deputy commissioner’s decision to quash those particular Truteam interrogatories.
Finally, the Commission did not err in failing to make an explicit adverse credibility
determination about DeQuintanilla because there is no requirement that the Commission do so.
Truteam failed to show any error in the Commission’s credibility findings or in its decision that an
adverse credibility determination was neither necessary nor warranted here. Furthermore, the
Commission conducted a review of the entire record and issued its statement of facts and
conclusions of law in its opinion deciding the issues before it. Nothing in the record supports the
conclusion that the Commission did not fulfill its responsibilities under Code § 65.2-705.
Therefore, for all of these reasons, we affirm the Commission’s decision.
Affirmed.
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