COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
R. S. JONES & ASSOCIATES, INC. AND
MICHIGAN MUTUAL INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 2863-98-2 PER CURIAM
JUNE 29, 1999
TIMMY D. DEAN
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(S. Vernon Priddy, III; Sands, Anderson,
Marks & Miller, on briefs), for appellants.
(Larry V. Roberts; Larry V. Roberts, P.C., on
brief), for appellee.
R. S. Jones & Associates, Inc. and its insurer (hereinafter
referred to as "employer") contend that the Workers' Compensation
Commission (commission) erred in finding that Timmy D. Dean
(claimant) proved that he sustained an injury by accident arising
out of and in the course of his employment on July 25, 1996.
Specifically, employer argues that the commission's decision
violated the doctrine set forth in Massie v. Firmstone, 134 Va.
450, 462, 114 S.E.2d 652, 656 (1922). 1 Upon reviewing the record
*Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
On appeal, employer makes no argument with respect to the
commission's specific findings that employer failed to prove
that the claim was barred by claimant's willful misconduct or
the violation of a known safety rule. Accordingly, we will not
address those specific issues.
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.
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).
On July 25, 1996, claimant was injured when he jumped from a
moving truck he was driving while in the course of his employment.
Claimant testified that while he was driving the truck with it in
gear and hauling rock down a hill, the engine stopped running
half-way down the hill. Claimant stated that when this occurred,
he had no steering and the brakes would not operate. As a result,
claimant stated that the truck's speed increased and he became
scared because he could not steer the truck around an upcoming
curve. Consequently, he jumped from the truck out of the
passenger door. The back wheels of the truck ran over claimant,
causing him to sustain severe injuries. Claimant stated that
"[e]verthing just happened so fast," and he was not sure whether
he tried to activate the park switch. He stated that he made a
"split second decision" to jump from the truck.
Steven Chewning, employer's accident investigator, testified
that according to employer's reports, the truck was found ten to
twelve feet from the roadbed, out of gear. In addition, there
were no skid marks at the scene. Employer found the truck to be
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operating normally. Chewning concluded "that the vehicle was out
of gear as it started down the hill and that would have disabled
the engine brake and there was not enough consideration of the
material at the end of the road, and [claimant] elected to jump
out of the vehicle." Chewning rejected the theory that the
accident was caused by the engine cutting off, because the driver
would still have been able to use the brake system and there was
no evidence of skid marks.
Employer's project manager, William Jones, testified that if
the engine had cut off, as claimant testified, the driver would
not even know it until he got to the bottom of the hill, because
the brakes and steering would still work. Jones stated that if
the truck were shifted into neutral on the hill, the driver would
lose control of it and the brakes would not work. Shane Cope, a
mechanic, confirmed that if the truck were in neutral "[n]othing
will work," and the truck would pick up speed.
In awarding claimant benefits, the commission found as
follows:
The fact that the claimant may have
exercised poor judgment or have been
negligent is not a bar to recovery of
worker's compensation benefits. The
scenario offered by the employer's expert is
essentially that the claimant shifted the
truck out of gear on a hill, which caused
the claimant to lose control of the vehicle.
He panicked, and jumped from the truck.
According to the scenario presented by the
claimant, the engine quit, causing him to
panic and jump from the truck. Like the
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Deputy Commissioner, we find the former
scenario more likely. Therefore, the
claimant may have negligently taken the
truck out of gear, or, as one of the
claimant's witnesses testified, the
gearshift on the truck may have popped out
of gear. None of these scenarios would
constitute willful misconduct. The claimant
felt he was losing control of the truck, and
believing that his life was in danger, he
exercised poor judgment and jumped from the
truck. We do not find it credible that the
claimant intentionally caused his injuries
in a premeditated plan to jump from a moving
truck.
Findings of fact supported by credible evidence will not be
disturbed on appeal. See Dep't of State Police v. Dean, 16 Va.
App. 254, 257, 430 S.E.2d 550, 551 (1993). "As the factfinder
[sic], the commission is charged with the responsibility of
resolving questions of credibility and of controverted facts."
Virginia Employment Commission v. Gantt, 7 Va. App. 631, 635,
376 S.E.2d 808, 811, aff'd on reh'g en banc, 9 Va. App. 225, 385
S.E.2d 247 (1989).
Employer argues that the commission's decision violated the
doctrine enunciated in Massie, that a litigant can rise no
higher than his own testimony. See Massie, 134 Va. at 462, 114
S.E.2d at 656. However, we find that the evidence supports the
commission's finding that claimant's injury arose out of his
employment. Claimant's testimony and account of how the
accident occurred were consistent with his earlier accounts of
how the accident occurred. The fact that claimant's account of
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the accident may contain aspects which are not reasonable or
plausible did not require the commission to reject the basic
account of the accident which is supported by the evidence.
Thus, although the claimant's explanation may not be plausible
that the truck's engine stopped while it traveled down the hill
in gear, nevertheless, the commission was not required to
disbelieve that he was injured when he jumped from the moving
truck while performing his work. The commission did not err, as
a matter of law, by crediting claimant's account that he jumped
from the truck while it was moving, regardless of the reason.
Massie does not require that every detail of a litigant's
account of the subject event must be plausible or credible in
order to support a compensable claim. As long as the claimant's
theory of the case is supported by credible evidence, then
implausible or inconsistent evidence concerning facts that are
not essential to a recovery do not fall within the Massie
doctrine to defeat a claim.
Claimant's testimony simply described what he believed
caused him to jump from the truck, thereby providing evidence to
be considered by the commission in assessing the claim. Under
such circumstances, his testimony neither limited nor diminished
other evidence in the record in support of the claim.
As fact finder, the commission was entitled to weigh all of
the evidence and to infer that the accident more than likely
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occurred because claimant shifted the truck out of gear on the
hill or it popped out of gear, causing him to lose control of
the truck. The testimony of claimant and employer's witnesses
provide credible evidence to support the commission's findings.
For these reasons, we affirm the commission's decision.
Affirmed.
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