COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
KYU H. LEE, t/a JAY'S FOOD MARKET
MEMORANDUM OPINION * BY
v. Record No. 0721-96-2 JUDGE JAMES W. BENTON, JR.
OCTOBER 29, 1996
LEA ANE BEAVER and
UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
David L. Epperly, Jr. (Epperly, Follis &
Schork, P.C., on brief), for appellant.
Maurice H. Bell, Jr., for appellee Lea Ane
Beaver.
Christopher D. Eib, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Richard L. Walton, Jr., Senior
Assistant Attorney General; John J. Beall,
Jr., Senior Assistant Attorney General, on
brief), for Uninsured Employer's Fund.
Kyu H. Lee, trading as Jay's Food Market, appeals from an
award of workers' compensation benefits to his employee, Lea Ane
Beaver. Lee contends that no credible evidence supports the
commission's findings that he had three or more employees
regularly in service and that Beaver had not engaged in willful
misconduct in violation of a safety rule. Because the findings
are supported by credible evidence, we affirm the commission's
award.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
Beaver suffered a severe injury to her hand on January 24,
1994, when she attempted to dislodge meat from the blade of a
meat grinding machine. Beaver lost all or part of four fingers
and suffered damage to her thumb. She filed a claim for
temporary total disability benefits, temporary partial disability
benefits, and related medical benefits.
Lee and the Uninsured Employer's Fund defended against
Beaver's claim on the ground that the commission did not have
jurisdiction over Lee because he did not have three or more
employees regularly in service. They also argued that Beaver's
injury resulted from her willful violation of a safety rule.
II.
The principle is well established that "[f]actual findings
of the . . . Commission will be upheld on appeal if supported by
credible evidence." James v. Capitol Steel Constr. Co., 8 Va.
App. 512, 515, 382 S.E.2d 487, 488 (1989). "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 Enter., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991). Thus, "[t]he fact that contrary evidence may be
in the record is of no consequence if there is credible evidence
to support the Commission's findings." Russell Loungewear v.
Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986).
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The standard for our review of the evidence is equally well
settled. On appeal, "we review the evidence in the light most
favorable to the prevailing party." R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"Where reasonable inferences may be drawn from the evidence in
support of the commission's factual findings, they will not be
disturbed by this Court on appeal." Hawks v. Henrico County Sch.
Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
III.
The evidence proved that Jay's Food Market was open every
day, for a total of eighty-eight hours per week. Beaver
testified that during her three years of employment, at least
three individuals always worked with Lee at the store. She
specifically identified Mrs. Lee, who is appellant's wife, Ms.
Kim, and Yung Lee. Katie Duncan, Candy Speas, Angela Speas, and
Mary Ramirez, all of whom Lee had employed, also testified that
three or more employees were working at the store at various
times.
In addition, Lee's quarterly tax returns showed that Lee had
more than three employees listed in three of the quarters of
1993. His return for the third quarter of 1993 contained no
entry in the space designated for the number of employees. For
the quarter ending on December 31, 1993, less than a month before
Beaver's injury, Lee reported that he employed four employees.
Although Lee stated that he did not have three or more employees
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working for him, he acknowledged that family members and other
individuals assisted him at the store. He testified, however,
that they were not paid for their help. He also acknowledged
that some employees were given cash payments that were not
recorded on the books. After stating that he could not recall
all the names of his employees, Lee identified approximately
nineteen people who worked in his food market in the
eighteen-month period prior to Beaver's injury.
Based upon the proof in the record, the commission found as
follows:
Upon review of the evidence, we find that
at least three or more employees were
required to carry out the established mode of
this employer's business and that there were
three or more employees regularly in service.
In this case, we find that the employer's
minor children were not employees. However,
we find that services provided by Mrs. Lee
and Ms. Kim were not gratuitous and that they
were employees. Both performed vital
functions for the business, Mrs. Lee as a
cashier and Ms. Kim providing coverage on
Sundays. Likewise, we find that Yung Lee's
services (security duties) were not
gratuitous and were essential in carrying out
the established mode of business.
We hold that the testimony of Beaver and the other former
employees of the food market provide credible evidence to support
the commission's findings. The direct evidence and inferences
drawn from the tax reports provide additional credible evidence
to support the commission's findings.
IV.
"To prevail upon a defense of willful misconduct . . . ,
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[Lee] had to establish (1) that the safety rule was reasonable,
(2) that the rule was known to [Beaver], (3) that the rule was
for [Beaver's] benefit, and (4) that [Beaver] intentionally
undertook the forbidden act." Spruill v. C.W. Wright Constr.
Co., 8 Va. App. 330, 334, 381 S.E.2d 359, 360-61 (1989).
"Willful misconduct requires something more than negligence."
Uninsured Employer's Fund v. Keppel, 1 Va. App. 162, 164, 335
S.E.2d 851, 852 (1985). The issues whether an employee engaged
in willful misconduct and violated a safety rule are issues of
fact. See Mills v. Virginia Elec. & Power Co., 197 Va. 547, 551,
90 S.E.2d 124, 127 (1955).
Upon its review of the testimony of Beaver and three of the
former employees, the commission found as follows:
Testifying by deposition, Beaver stated
that she was unaware of any rule concerning
the operation of the meat grinder,
specifically one that mandated the use of the
plunger in order to free meat jams. Beaver's
testimony that she never was instructed how
to use the meat grinder was supported by
three co-workers. The employer, Kyu H. Lee,
testified that he showed Beaver how to
operate the meat grinder and that his
explanation included the use of the plunger.
Kyu admitted, however, that he paid little
attention to whether or not the plunger was
employed in freeing meat clogs in the
grinder.
The record contains credible evidence to support the
commission's finding that Lee had not proved the existence of a
safety rule. Furthermore, credible evidence in the record
supports the commission's finding that Beaver's injury was not
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the result of intentional conduct.
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V.
Finally, we address Beaver's motion to dismiss the Uninsured
Employer's Fund as a party to this appeal. The Uninsured
Employer's Fund failed to file a written response to that motion.
Although the commission's ruling was adverse to Lee and the
Uninsured Employer's Fund, the Uninsured Employer's Fund did not
file either a notice of appeal or an appellant's brief. Instead,
it filed an appellee's brief and asserted that the commission's
award should be overturned because Lee employed fewer than three
employees.
We agree with Beaver's argument that when the Uninsured
Employer's Fund challenged the award, the Fund was required by
the Rules to file an appellant's brief within the time specified
by Rule 5A:19(b). Cf. Rule 5A:11(f) ("Whenever two . . . cases
were tried together in the . . . Commission, one notice of appeal
and one record may be used to bring all such cases before the
Court of Appeals . . . ."). We also note that in an earlier
appeal of this case, which this Court dismissed because it was
taken from an interlocutory order, the Uninsured Employer's Fund
filed a notice of appeal and an appellant's brief. The Fund
offers no support in the Rules for the method it chose to pursue
in this appeal. Accordingly, we grant Beaver's motion to dismiss
the Uninsured Employer's Fund as an appellee in this appeal.
For these reasons, we affirm the commission's award.
Affirmed.
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