Town of Jonesville, etc v. Robert H. Sword ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued by Teleconferencing
TOWN OF JONESVILLE MAINTENANCE DEPARTMENT
and
FIDELITY & CASUALTY COMPANY OF NEW YORK
v. Record No. 0194-95-3 MEMORANDUM OPINION * BY
JUDGE SAM W. COLEMAN III
ROBERT H. SWORD FEBRUARY 20, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kathryn Spruill Lingle (Midkiff & Hiner,
P.C., on brief), for appellants.
Stephen J. Kalista (Lonnie L. Kern, on
brief), for appellee.
In this workers' compensation case, the Town of Jonesville
contends that the commission erred in awarding Robert H. Sword,
the claimant, temporary total disability benefits. Specifically,
Jonesville argues that the commission erred by rejecting the
deputy commissioner's findings as to the credibility of witnesses
without articulating its reasons or rationale, finding that the
claimant sustained an injury by accident arising in the course of
his employment, and finding that the claimant was totally
disabled and had no obligation to market his residual capacity.
We find no error and affirm the commission's award.
The claimant was employed by the Jonesville Maintenance
Department as an assistant superintendent, and his brother, P.C.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Sword, was employed as the superintendent. On March 3, 1993, the
claimant, P.C., Burl Nida, and Dennis Collins were digging a
ditch in order to install a new sewer line. According to the
claimant, P.C. directed him as he dug the ditch with a backhoe.
The claimant testified that after he hit existing sewer lines
while digging with the backhoe, P.C. stated, "[l]ook at that
damned fool," and made other comments that the claimant could not
hear over the backhoe's motor. The claimant climbed down from
the backhoe and walked towards P.C. to ask him what he had said.
P.C. was holding a shovel, and the claimant warned P.C. not to
hit him with the shovel. According to the claimant, P.C. then
hit him three or four times in the head with his fists.
The claimant testified that he and P.C. had experienced some
problems at work prior to this incident and that P.C. called him
names on a daily basis. However, the claimant denied that he
resented the fact that P.C. was his supervisor. He also denied
that he walked towards P.C. in a brisk or rapid manner after
leaving the backhoe and that he raised his fist or attempted to
hit P.C.
James Parks witnessed the confrontation between the claimant
and P.C. from his home, which is located approximately one to two
hundred feet from where the altercation occurred. Parks
testified that P.C. was cursing the claimant and that the
claimant did not raise his fist at P.C. However, Parks admitted
that he could not hear specifically what the claimant and P.C.
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were saying.
According to P.C., the altercation began because the
claimant cursed at him and he told the claimant, "[y]ou're
crazy." The claimant then jumped off the backhoe, cursed him
again, and came at him. The claimant swung his right hand at
P.C., and P.C. responded by hitting the claimant. P.C. stated
that he hit the claimant two or three more times because the
claimant continued to struggle with him. He denied cursing the
claimant or calling him names on the day of the fight, and also
asserted that the claimant did not follow instructions at work
and had cursed him on several occasions prior to the day of the
fight.
Burl Nida testified that the claimant cursed at P.C. and
then jumped off the backhoe and "went toward him." Nida stated
that he heard the claimant curse P.C. again after P.C. stated,
"[y]ou're crazy." Nida testified that he was sitting behind P.C.
and saw P.C.'s hand come up as the claimant approached, but did
not see the claimant raise his fist or swing at P.C. After P.C.
hit him, the claimant grabbed a pipe from a scrap heap. P.C.
picked up a shovel and told the claimant to put the pipe down.
Nida testified that he believed that the claimant had started the
fight.
Dennis Collins was working in the ditch and witnessed only a
portion of the confrontation. Although he heard P.C. say
something to the claimant, he could not hear exactly what was
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said because of the noise from the backhoe. Collins stated that
the claimant appeared angry as he exited the backhoe and
approached P.C., but admitted that he did not see the claimant
swing at P.C.
After hearing all of the testimony, the deputy commissioner
held that James Parks' testimony was incredible and unpersuasive
because Parks claimed that he could hear what the claimant and
P.C. were saying despite the noise of the backhoe while Dennis
Collins testified that he could not hear the conversation even
though he was much closer. Conversely, based upon his
"observation of the witnesses," the deputy commissioner found
P.C., Nida, and Collins to be credible witnesses. Accordingly,
the deputy commissioner held that the claimant provoked the fight
with P.C.
On review, the commission concluded that "the Deputy
Commissioner did not find that the claimant provoked the
confrontation with anything more than words." The commission
held that verbal conduct does not foreclose an award under the
Workers' Compensation Act (Act) and reversed the deputy
commissioner's decision.
I. Credibility Determination
"[A] specific, recorded observation of a key witness'
demeanor or appearance in relation to credibility is an aspect of
the hearing that the commission may not arbitrarily disregard."
Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 382, 363
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S.E.2d 433, 437 (1987), appeal after remand, 9 Va. App. 120, 127,
384 S.E.2d 333, 335 (1989). Here, the deputy commissioner
discounted James Parks' testimony, but found that P.C. Sword,
Burl Nida, and Dennis Collins were all credible witnesses.
Therefore, Jonesville contends that by awarding the claimant
benefits, the commission reversed the deputy commissioner's
credibility findings without providing any reasons or rationale.
Pierce does not provide that the commission must articulate
a reason for reversing every credibility determination the deputy
commissioner makes. Rather, Pierce distinguishes between
credibility determinations based upon specific observations of
appearance and demeanor and those based upon the actual substance
of the testimony.
When the deputy commissioner's finding of
credibility is based, in whole or in part,
upon the [witness's] appearance and demeanor
at the hearing, the commission may have
difficulty reversing that finding without
recalling the witness. On the other hand, if
the deputy commissioner's determination of
credibility is based on the substance of the
testimony and not upon the witness' demeanor
and appearance, such a finding is as
determinable by the full commission as by the
deputy.
Pierce, 5 Va. App. at 383, 363 S.E.2d at 438. Therefore, the
commission has no duty to explain its decision favoring the
testimony of one witness over another "[a]bsent a specific
recorded observation regarding the behavior, demeanor or
appearance of [the witnesses]." Bullion Hollow Enterps. v. Lane,
14 Va. App. 725, 729, 418 S.E.2d 904, 907 (1992); see also Kroger
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Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 881 (1992).
Here, the deputy commissioner found James Parks' testimony
"incredible and unpersuasive" because "it does not comport with
normal events that [Parks] could hear what was being said two
hundred feet away when Dennis Collins was only a few feet away
and . . . could not hear the conversation because the backhoe
motor was running." This explanation focuses on the substance of
Parks' testimony; the deputy commissioner did not record any
observation of Parks' demeanor or appearance that negatively
impacted his credibility. And although the deputy commissioner
stated that "from [his] observation of the witnesses," he found
P.C. Sword, Burl Nida, and Dennis Collins credible, he did not
make a "specific, recorded observation" of their conduct or
demeanor which would have been a basis for determining
credibility that would only have been available and observable by
the hearing officer. Lane, 14 Va. App. at 729, 418 S.E.2d at
907.
The principle set forth in Pierce does not
make the deputy commissioner's credibility
findings unreviewable by the commission.
Rather, it merely requires the commission to
articulate its reasons for reversing a
specific credibility determination of the
deputy commissioner when that determination
is based upon a recorded observation of the
demeanor or appearance of a witness. In
short, the rule in Pierce prevents the
commission from arbitrarily disregarding an
explicit credibility finding of the deputy
commissioner.
Id. (emphasis added); see also Morris, 14 Va. App. at 236, 415
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S.E.2d at 881. Because the deputy commissioner did not base his
credibility findings on any specific recorded observations of
demeanor or appearance, "the full commission could make its own
credibility determination." Morris, 14 Va. App. at 236, 415
S.E.2d at 881. Therefore, the commission did not err by
reversing the deputy commissioner's decision without providing a
rationale or reason for disregarding the deputy commissioner's
credibility findings, 1 and its findings of fact will not be
disturbed on appeal if supported by credible evidence. See Rose
v. Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396
S.E.2d 392, 395 (1990).
The claimant denied that he approached P.C. with a "raised
fist," and this denial was corroborated by Parks, Nida, and
Collins. Conversely, no witness could confirm P.C.'s claim that
the claimant attempted to hit him. Although Nida testified that
he saw "Preston's arm come up" before P.C. hit the claimant, he
admitted that he did not see the claimant attempt to strike P.C.
1
It is not clear from the record that the commission
rejected the deputy commissioner's credibility determinations.
The commission did not explicitly reject the deputy
commissioner's findings that Parks' testimony was not credible
and P.C.'s, Nida's, and Collins' testimony were credible, but
based its decision on the grounds that the evidence did not show
"that the claimant provoked the confrontation with anything more
than words." See Birdsong Peanut Co. v. Cowling, 8 Va. App. 274,
278, 381 S.E.2d 24, 27 (1989). Nonetheless, the commission did
find that P.C. "testified vaguely and unconvincingly" and relied
in part on Parks' statement "that the claimant made no
threatening moves toward the supervisor." Therefore, we will
assume for purposes of this appeal that the commission
disregarded the deputy commissioner's credibility determinations.
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Collins testified that he saw the claimant approach P.C. and
witnessed P.C. strike the claimant "three or four" times, but did
not see the claimant "throw any blows" at P.C. Therefore, we
hold that the commission's finding that the claimant did not
provoke P.C. with anything more than words is supported by
credible evidence.
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II. Accident
In Virginia, an assault on an employee by a co-worker or
third party may qualify as an accident arising in the course of
employment. See A.N. Campbell & Co. v. Messenger, 171 Va. 374,
377, 199 S.E. 511, 513 (1938); Farmers Mfg. Co. v. Warfel, 144
Va. 98, 101-03, 131 S.E. 240, 241 (1926). Injuries sustained in
a fight with another employee are compensable so long as the
fight "was not a mere personal matter, but grew out of a quarrel
over the manner of conducting the employer's business." Warfel,
144 Va. at 104, 131 S.E. at 241. However, the injuries are not
compensable if the evidence shows that the claimant was the
aggressor. Id. (holding that the evidence must show that "the
injured employee was not responsible for the assault").
"[T]he great majority [of cases from other jurisdictions]
agree that words alone, however inflammatory, are not such
aggression as to deprive claimant of compensation." 1 Arthur
Larson, Workmen's Compensation Law § 11.15(c), at 249 (1995); see
also Warfel, 144 Va. at 103, 131 S.E. at 241 (citing a New York
case which held "that the use of the irritating words by the
employee was no justification for the assault"). However,
because "there is generally no easily distinguishable line
between aggressor and innocent victim in workplace altercations,"
Geeslin v. Workmen's Compensation Commissioner, 294 S.E.2d 150,
153 (W. Va. 1982); see also Larson, Workmen's Compensation Law
§ 11.15(c), at 250-51, we decline to adopt a bright-line rule
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that words alone are either sufficient or insufficient to
constitute aggression. Rather, we hold that whether a claimant's
verbal conduct, standing alone, is sufficient to preclude
compensation depends upon the nature of the words and the context
in which they are spoken. Cf. Kennedy's Piggly Wiggly Stores,
Inc. v. Cooper, 14 Va. App. 701, 706, 419 S.E.2d 278, 281 (1992).
Here, the evidence is clear that the altercation between the
claimant and P.C. resulted from a quarrel over the claimant's
performance of his job. In addition, the record reveals that the
claimant did not physically or verbally threaten P.C.; P.C.'s own
testimony reveals that the claimant only cursed at him.
Therefore, we hold that, under the circumstances of this case,
the claimant was not responsible for the assault committed
against him and that his injuries resulting from the assault are
compensable under the Act.
III. Total Disability
Jonesville further contends that the commission erred by
finding that the claimant was "effectively totally disabled from
March 4, 1993," and that the claimant did not show that he made
reasonable efforts to market his residual work capacity. In
determining whether the commission's finding is supported by
credible evidence, we must view the evidence in the light most
favorable to the claimant. Georgia Pacific Corp. v. Dancy, 17
Va. App. 128, 133-34, 435 S.E.2d 898, 901 (1993).
The claimant testified that as a result of the assault his
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left arm "gives [him] trouble," and he has "to sit and work [his]
hand before [he] can even pull [his] pants up" in the morning.
Dr. Stephen Irvin initially treated the claimant on March 4,
1993, and on March 25, 1993, stated that the claimant should not
return to work until cleared by an orthopedist. Dr. Irvin
referred the claimant to Dr. Daniel F. Klinar, an orthopedist,
who examined the claimant on April 5, 1993, and noted that he
suffered from "limited flexion, . . . rotation and extension in
his neck." Although Dr. Klinar stated that he "asked [the
claimant] to check into the possibility of light duty work, he
also noted that "[a]pparently all the job options available for
[the claimant] are heavy manual labor jobs and I think it is too
early for him to perform these." 2 (Emphasis added.) Dr. Klinar
also noted that the claimant "is [not] suitable for driving
because he cannot rotate his head at this point."
Dr. Klinar examined the claimant again on May 10, 1993, and
found that he still suffered from a "very limited range of
motion." Consequently, Dr. Klinar recommended physical therapy
and did not change the claimant's work restrictions. After
several months of physical therapy, the claimant was referred to
Dr. Ken W. Smith, who noted that the claimant continues "to
complain of left arm pain and . . . has undergone a total of 66
2
The conclusion that the claimant's job opportunities are
limited is supported by the fact that the claimant is in his late
fifties, has a limited educational background, and has worked at
the same job for approximately thirty years.
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treatments of physical therapy without relief." Dr. Smith
recommended surgery for the claimant.
We hold that credible evidence supports the commission's
finding that the claimant was totally disabled. Therefore, the
claimant "is not required to prove that he made a reasonable
effort to market his residual work capacity in order to receive
temporary total disability benefits." Id. at 134, 435 S.E.2d at
901.
For the foregoing reasons, we affirm the commission's award.
Affirmed.
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