Abex Friction Products Company v. Butcher ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
ABEX FRICTION PRODUCTS COMPANY AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 3004-98-4 PER CURIAM
JUNE 1, 1999
GERALD WAYNE BUTCHER
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(J. David Griffin; Bradley W. Finch; Fowler,
Griffin, Coyne, Coyne & Patton, P.C., on
brief), for appellants.
(Gary W. Kendall; J. Gregory Webb; Michie,
Hamlett, Lowry, Rasmussen & Tweel, P.C., on
brief), for appellee.
Abex Friction Products Company and its insurer (hereinafter
referred to as "employer") contend that the Workers' Compensation
Commission (commission) erred in (1) finding that employer failed
to prove its defense that Gerald Wayne Butcher (claimant)
willfully violated employer's safety rule against fighting; (2)
not granting employer's motion to dismiss claimant's appeal based
upon claimant's failure to identify specific errors of the deputy
commissioner in his request for review; and (3) not granting
employer's motion to dismiss claimant's appeal based upon
claimant's failure to timely file his written statement. Upon
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. See Rule 5A:27.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Unless
we can say as a matter of law that employer’s evidence sustained
its burden of proof, the commission’s findings are binding and
conclusive upon us. See Tomko v. Michael’s Plastering. Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
"To prevail on the defense of a willful violation of a safety
rule, employer must prove that: (1) the safety rule was
reasonable; (2) the rule was known to the employee; (3) the rule
was promulgated for the benefit of the employee; and (4) the
employee intentionally undertook the forbidden act." Brockway v.
Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995).
In ruling that employer failed to prove that claimant
willfully violated employer's safety rule against fighting, the
commission found as follows:
[W]e find that the claimant did not violate
the employer's rule against fighting. The
uncontradicted testimony by both the
claimant and an eyewitness is that the
claimant was the victim of an assault from
behind as he was walking to his work
station. Even after he was shoved to the
ground, the assault continued while the
claimant did nothing but try to cover his
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face as the assailant punched him. The
claimant was not a willing participant in a
fight. The Deputy Commissioner denied the
claim because the claimant made one
derogatory remark, calling Mr. Gibbs a
"scab." However, the uncontradicted
evidence is that this one derogatory remark
occurred only after a number of derogatory
and "dirty" remarks made by Mr. Gibbs, after
the claimant complained to him that he
almost ran him over with a forklift. The
claimant did not strike Mr. Gibbs, nor even
respond with profanity. We find that the
claimant's single epithet was not a
sufficient or reasonably expected
provocation for a unilateral assault.
The commission's findings are amply supported by the
record. The testimony of claimant and eyewitness Gregory S.
Owens established that claimant did not provoke the fight and
did not initiate any physical contact with Gibbs. Rather, after
claimant said "scab" and then turned and walked away, Gibbs came
up from behind and attacked claimant. Claimant did not fight
back, but rather tried to cover his face to defend himself
against Gibbs's punches.
Based upon this record, we cannot say as a matter of law
that employer proved that claimant willfully engaged in the
prohibited conduct of fighting.
II. and III.
Employer's argument that the commission should have granted
its motion to dismiss claimant's pro se appeal to the full
commission on procedural grounds is without merit.
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Rule 3.1 of the Rules of the Virginia Workers' Compensation
Commission, requiring that "[a] request for review should assign
as error specific findings of fact and conclusions of law" is
"'not mandatory, but directory only.'" The Greif Companies v.
Sipe, 16 Va. App. 709, 713, 434 S.E.2d 314, 317 (1994) (citation
omitted). Consequently, "the failure of a party to specify
certain issues [in the application for review] does not deprive
the commission of jurisdiction to consider issues that are
necessary to a resolution of the claim." Id. Here, the
commission acted reasonably in considering and correcting the
commission's erroneous finding on the willful misconduct issue.
Second, Rule 3.2 related to written statements on review
does not mandate that the commission dismiss an appeal if a
written statement is not timely filed. Here, the commission
mailed out the schedule for written statements on December 11,
1997. Claimant did not receive the schedule until nine days
later. He filed his written statement within fifteen days of
his receipt of the commission's schedule. That statement
detailed the grounds for its timeliness and for his appeal.
Clearly, claimant's actions in no way prejudiced employer.
Moreover, employer cites no authority for its contention that
claimant's appeal should have been dismissed under these
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circumstances. The commission's interpretation of its rule was
reasonable, and will not be disturbed on appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
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