Thomas R. Brandon, Jr. City of Richmond Fire Dept. ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
THOMAS R. BRANDON, JR.
MEMORANDUM OPINION *
v. Record No. 1877-97-2 PER CURIAM
DECEMBER 23, 1997
CITY OF RICHMOND FIRE DEPARTMENT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Geoffrey R. McDonald; Laura A. McDonald;
Geoffrey R. McDonald, P.C., on brief), for
appellant.
(William Joe Hoppe, Senior Assistant City
Attorney; Office of the City Attorney, on
brief), for appellee.
Thomas R. Brandon, Jr. (claimant) contends that the Workers'
Compensation Commission abused its discretion by refusing to hold
the City of Richmond Fire Department (employer) responsible for
Brandon's attorney's fees pursuant to Code § 65.2-713. Upon
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. Rule 5A:27.
Code § 65.2-713 authorizes the commission to assess the
costs of the proceedings, including a reasonable attorney's fee,
against an employer who has defended any proceeding without
reasonable grounds. "Attorney's fees may be awarded in a
workers' compensation case only when it is defended 'without
reasonable grounds.'" Volvo White Truck Corp. v. Hedge, 1 Va.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
App. 195, 201, 336 S.E.2d 903, 907 (1985).
"On appeal, we review 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). Factual findings made by the commission will be upheld
on appeal if supported by credible evidence. See James v.
Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487,
488 (1989).
The commission held that employer defended against the claim
on reasonable grounds and declined to assess attorney's fees. In
so ruling, the commission stated as follows:
The carrier has the right to fully
investigate any claim to determine its
compensability. The claimant was contacted
by a claims adjuster who requested that he
provide additional information and, if
necessary, a recorded statement, neither of
which was provided. Although the Employer's
First Report of Accident stated that he felt
a "pop," this evidence does not conclusively
prove an injury by accident. Additionally,
the medical records are somewhat conflicting,
and the recorded statement could have cleared
any confusion surrounding this issue. We
find the carrier's request for additional
information in the form of a recorded
statement was reasonable. Since they did not
receive full cooperation with the
investigation, they had no choice but to go
to Hearing on the matter.
Based upon the inconsistencies between the Employer's First
Report of Accident and the medical records concerning the
description of claimant's accident and subsequent injury, the
commission could conclude that employer acted reasonably in
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deciding that it needed additional information to determine the
compensability of the claim. Claimant refused to provide
employer with such information. Furthermore, the record reveals
that claimant's version of events ultimately differed from that
of his long-time friend and co-worker, Donald Shires, raising a
credibility issue for the commission to determine.
Based upon this record, credible evidence supports the
commission's finding that employer's defense of the claim was
reasonable. Accordingly, we affirm the commission's decision.
Affirmed.
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