COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
NOVA SUPPLY, INC.
MEMORANDUM OPINION *
v. Record No. 3031-96-4 BY JUDGE JOHANNA L. FITZPATRICK
JULY 8, 1997
MICHAEL G. CLARK
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Lisa C. Healey (Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellant.
Michael W. Heaviside (Ashcraft & Gerel, on
brief), for appellee.
On appeal from the commission's award of compensation to
Michael G. Clark (claimant), Nova Supply, Inc. (employer)
contends that the commission erred in finding (1) that employer
could participate in the hearing without legal representation and
(2) that the evidence was sufficient to demonstrate that claimant
was an employee and that he sustained a compensable injury. For
the reasons that follow, we affirm the decision of the
commission.
I. BACKGROUND
Claimant and Wade Burgess (Burgess) were involved in an
altercation that occurred on September 14, 1995. As of that
date, Burgess was the minority owner of the business of Nova
Supply, Inc., and Naomi Stager (Stager) was the majority owner of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the business. Claimant was employed as a driver and warehouse
supervisor.
On September 14, 1995, claimant and Stager arrived at the
workplace to discover that Burgess "had changed the keys --
changed the lock, had it re-keyed --." Burgess then physically
assaulted Stager when she attempted to enter the office part of
the building. Claimant watched from the doorway as Burgess
"kicked and punched [Stager] and threw her out of the --
physically threw her out of the building after, after she
arrived." Upon observing this behavior, claimant decided that
"since she had told me that I had a job and she didn't have any
control, I just wanted to get my things and, and my paycheck and
get away." However, before he could do so, he was physically
assaulted by Burgess. Burgess "grabbed" claimant and pulled him
into the building. Claimant's foot caught in the door and
snapped as the two fell into the building and onto the floor.
Claimant sustained a "closed fracture and dislocation of the
right ankle." He was taken to Fairfax Hospital where he received
emergency "surgical intervention in the form of open reduction
and fixation and stabilization with screws." Claimant applied
for and received compensation from September 14, 1995 and
continuing.
At the hearing before the deputy commissioner on May 23,
1996, Beth Pettipas, a former employee for Nova Systems, Inc.,
testified regarding erratic behavior exhibited by Burgess
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throughout her employment, and that on September 14, 1995, she
witnessed Burgess shove and kick Stager. Pettipas saw Burgess
assault claimant following his assault on Stager, and at that
point, she called the police from her car phone. When the police
arrived at the scene, they arrested Burgess for the assault and
battery of both claimant and Stager and for possession of crack
cocaine.
Additionally, Pettipas testified to events that occurred on
September 13, 1995. She stated that on that date Burgess was in
a "frenzy" and doing "things that didn't make any sense, phone
calls that just were crazy." She testified that Burgess called
and fired claimant, but that Stager then spoke to Burgess, and
after the telephone conversation, she called the police. While
they were waiting for the police, Stager indicated that no one
was fired. Finally, Pettipas stated on redirect that she heard
Stager tell claimant on the morning of September 14, 1995 that he
was not fired, and that on September 13, 1995, she heard Stager
reiterate twice that claimant was not fired.
Claimant testified that on September 14, 1995, as he was
attempting to retrieve his personal belongings,
[Burgess] came at me. And the, . . .
scuffle, . . . came about I guess, and as he
came at me, and . . . Ms. Stager was standing
at the door, and when the door shut, . . . I
didn't have any place to go, basically, as he
came at me. He came charging straightforward
at me. He was right there, . . . a couple of
feet from the door. He had opened the door
and, and I was standing in the doorway and []
I . . . just went into submission and just
kind of put my hands over my head as, as he
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came at me. And the next thing I know we
were on the floor, and . . . I had a pain in
my right, my right ankle, and looked down and
I could see that my foot was, . . . hanging
off, and there was the stub of my leg with no
foot on it. My foot was actually, . . .
completely -- well, the only thing holding it
in place was the flesh.
Burgess testified that he had the sole authority to hire and
to fire employees, and that he had fired claimant on September
13, 1995 for the unauthorized use of a company vehicle. He
admitted that he changed the building locks on September 13-14,
1995, and that on the morning of September 14, 1995 he pushed
Stager out of the building. He denied pulling claimant into the
building or otherwise assaulting claimant. Additionally, Burgess
denied having a drug problem on the dates of September 13-14,
1995.
Naomi Stager also testified. She agreed that Burgess made
all the hiring and firing decisions. However, she stated that
she was the majority owner of the business, 1 and that she did not
recollect Burgess instructing her to get any item or keys from
claimant. Neither did she recall that she told claimant on
either September 13 or September 14 that he was not fired.
Finally, she denied witnessing what transpired between Burgess
and claimant on September 14, 1995.
Following the hearing, the deputy commissioner issued an
opinion dated June 6, 1996, and found as follows:
1
The fact that Stager was the majority owner of the business
is not in dispute.
4
In the present matter, the Commission
determines that the testimony of Beth
Pettipas and Michael Clark is completely
credible. The Commission does not accept as
credible the testimony of either Burgess or
Stager that Michael Clark had been terminated
the day prior to his injury by accident.
Both of the owners of Nova Supply gave
internally inconsistent testimony with regard
to Burgess's behavior and actions on
September 13, and 14, 1995. At various
points in the testimony of both employers,
the witnesses stated that they could not
remember the events accurately.
In this unfortunate employment
situation, the Commission believes that
Burgess was impaired by controlled
substances, that he acted irrationally, and
that he was the aggressor in the altercation
with Michael Clark. Because Naoma [sic]
Stager is the majority owner of the
corporation, the Commission finds that she
has the power to retain or to terminate
employees. In light of all the circumstances
described here, the Commission finds that
even if Burgess told Michael Clark that he
was terminated, it is more likely than not
that Stager confirmed to Michael Clark that
he was still employed. For this finding, the
Commission specifically relies on the
testimony of Beth Pettipas that she heard and
saw this precise series of events occur.
(Emphasis added). Accordingly, the deputy commissioner found
that claimant was injured on the employer's premises, during the
course of his employment, and awarded claimant temporary total
disability benefits from September 14, 1995 and continuing.
By opinion dated November 6, 1996, the full commission
affirmed the decision of the deputy commissioner. The commission
found, regarding the representation of the corporate defendant,
as follows:
There is no merit to the employer's
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argument that the proceedings should not have
commenced merely because the corporate
employer was unrepresented. Proper notices
of the hearing were sent to the employer and
were not returned, and the appearance of the
employer's officers is sufficient to confirm
that they were received. There was ample
opportunity for the officers to obtain legal
counsel for the corporation, and they cannot
now complain because they did not act
accordingly and because there was therefore
no legal appearance by the corporate entity.
Additionally, upon review of the record, the commission found
that:
[T]he corporate officers were not frank
and candid witnesses, but were instead
uncooperative and evasive. We particularly
note that the self-serving testimony of Wade
Burgess was in some key elements not in
accord with normal facts, and it was
inconsistent with and contradicted by the
testimony even of his own corroborating
witness.
* * * * * * *
Th[e] evidence establishes that Burgess
was the aggressor and that the claimant was
an unwilling victim to Burgess' assault upon
him. The claimant's injuries therefore arose
out of and in the course of his employment,
Park Oil v. Parham, 1 Va. App. 166, 336
S.E.2d 531 (1985), even if incurred as the
claimant was actually trying to separate
himself from the work place because of doubts
that the employment contract could be
enforced. Brown v. Reed, 209 Va. 562, 165
S.E.2d 394 (1969).
Upon consideration of the entire record
in this case, we find no merit to the errors
argued by the employer on review.
Accordingly, the June 6, 1996 Opinion of the
Chief Deputy Commissioner awarding benefits
in this case is AFFIRMED . . . .
II. REPRESENTATION BEFORE THE COMMISSION
6
Employer argues that the corporation was required to be
represented by counsel at the hearing before the deputy
commissioner, and because the officers appeared without a lawyer,
the hearing could not proceed. Employer's contention is without
merit.
In this case, the corporate party was the employer Nova
Supply, Inc. At the hearing before the deputy commissioner, the
deputy commissioner noted for the record that "the employer is --
or the employer, which has been noted as having no record of
insurance, and I guess The Fund -- The Uninsured Employer's Fund
is represented by Assistant Attorney General, Gay Lynn Taxey."
Thus, although Burgess and Stager testified without counsel, the
commission correctly found that they did not testify as the
corporation itself, but as mere employees and as witnesses to the
events in question. Employer is the party who consciously and
voluntarily proceeded without counsel, and cannot now be heard to
complain. It may not approbate and reprobate in this manner.
See Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d
613, 615 (1992) (No litigant will be permitted to invite error
and then to take advantage of the situation created by his own
wrong.). Proper notice of the hearing and ample opportunity to
obtain counsel was afforded Burgess and Stager. We assume
without deciding, due to their presence at the hearing, that both
Burgess and Stager received the proper notices. We affirm the
commission's ruling that "[e]videntiary hearings cannot be held
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hostage because a party elects or otherwise fails to appear for
the scheduled hearing without justifiable cause."
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III. SUFFICIENCY OF THE EVIDENCE
Lastly, employer argues that the evidence was insufficient
to support a finding that claimant was an employee at the time of
the injury or that claimant sustained a compensable injury. In
support of its argument, employer relies on the testimony of
Burgess and Stager. However, the commission specifically found
that this testimony lacked a credible foundation. The record
clearly supports the commission's finding.
"On appellate review, the factual findings of the commission
are binding if they are supported by credible evidence. The fact
that there is contrary evidence in the record is of no
consequence if there is credible evidence to support the
commission's finding. 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, 407 S.E.2d 32, 35 (1991) (citations
omitted).
The commission found that the testimony of the corporate
officers was contradictory, "self-serving," "not in accord with
normal facts," and "inconsistent." Thus, the commission
determined that these witnesses were not credible and relied
instead on the testimony of Pettipas and claimant. The
commission concluded that claimant was employed by Nova Supply,
Inc. at the time of his injury, that Burgess "was the aggressor,
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and that the claimant was an unwilling victim to Burgess' assault
upon him. The claimant's injuries therefore arose out of and in
the course of his employment . . . ." Credible evidence supports
this finding, and we will not disturb it on appeal.
Accordingly, for the reasons stated above, we affirm the
decision of the commission.
Affirmed.
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