King William Cnty. v. Jones

• Decision Date: 01 December 2015
• Docket Number: Record No. 0576–15–2.
• Citation: 779 S.E.2d 213,65 Va.App. 536
• Parties: KING WILLIAM COUNTY and Virginia Association of Counties Group v. Linda JONES.
• Court: Virginia Court of Appeals

65 Va.App. 536

779 S.E.2d 213

KING WILLIAM COUNTY and Virginia Association of Counties Group

v.Linda JONES.

Record No. 0576–15–2.

Court of Appeals of Virginia, Richmond.

Dec. 1, 2015.

J. David Griffin (Winchester Law Group, P.C., on brief), Winchester, for appellants.

Robert L. Flax (Robert L. Flax, P.C., on brief), Richmond, for appellee.

Present: DECKER, RUSSELL and ATLEE, JJ.

WESLEY G. RUSSELL, JR., Judge.

King William County and its insurer ("employer") appeal the Commission's award of disability benefits to the claimant, Linda Jones. We reject employer's challenge to certain factual determinations made by the Commission; however, because the record does not establish that claimant's failure to find employment after having been laid off by employer was causally related to her partial disability, we reverse the Commission's award of benefits.

BACKGROUND

Claimant worked as a part of employer's custodial staff for a number of years. On April 13, 2011, claimant fell from a 10–foot ladder while she was, as part of her duties, cleaning a window in the courthouse lobby. There is no dispute that claimant suffered injuries in the fall and that the fall arose out of and in the course of her employment. She returned to work for employer, where she worked until June 30, 2011.

In April 2011, claimant filed a claim for benefits, alleging injuries to her back and ribs as a result of her fall. Her claim also sought medical treatment benefits for liver disease. Claimant, however, withdrew the initial claim. In March 2013, claimant refiled her claim, alleging injuries to "her neck, back, left shoulder, ribs and hands." She alleged disability continuing from April 14, 2011. Employer contested the claim, arguing willful violation of a safety rule, failure to market residual skills, the economic loss rule, and doctor shopping resulting in unauthorized care.

A hearing before the deputy commissioner was commenced on September 10, 2013, but was continued to and recommenced on January 7, 2014. At the January 7th hearing, claimant withdrew her claim for liver disease treatment and amended the claim for her disability payments to begin July 1, 2011.

Prior to entertaining witnesses at the January 7th hearing, the deputy commissioner confirmed the stipulations that the parties had reached prior to the hearing. Specifically, the parties confirmed that they agreed that 1) claimant's pre-injury wage was $351.61 per week; 2) claimant fell off of a ladder while washing windows in the courthouse lobby on April 13, 2011; 3) at some points between the accident and June 30, 2011, claimant worked for the county in a light-duty capacity; 4) claimant has not worked for employer from July 1, 2011, to the present; and 5) since July 1, 2011, claimant has been in a light-duty capacity. In addition, employer also stipulated that "if the willful misconduct defense fails, at a minimum the Employer would agree that the Claimant would have a compensable injury to the neck, back, left shoulder, ribs, and hands." At no point in the proceedings below did the parties alter, amend, or withdraw the stipulations.

The deputy commissioner heard testimony from five witnesses. Of note, employer offered the testimony from two employees to establish that a safety rule prohibited custodial staff from using ladders and that, to clean "high" windows, such as those in the courthouse, custodians were required to use a squeegee on a stick. The employer's witnesses testified that claimant was aware of the rule against using ladders.

Claimant testified that there was no rule against using ladders to clean the windows. She said that she routinely used the ladder to clean the windows and that employer's witnesses had seen her do so. She said no custodian had ever been disciplined for using a ladder when cleaning the windows. Claimant also testified about her marketing efforts after the custodial positions were outsourced.

The evidence at the hearing established that, prior to claimant's work injury, the employer had decided to outsource its custodial needs. Specifically, it eliminated all custodial positions and entered into a contract with Jani–King to provide the custodial services. In a statement to the deputy commissioner, claimant's counsel indicated that all of employer's former custodians, except for claimant, had been hired by Jani–King to provide the same custodial service. The evidence, however, did not support this claim. Rather, the evidence was that only one of employer's former custodians was hired by Jani–King, and she was not hired until a year after Jani–King began providing the custodial services.

On January 27, 2014, the deputy commissioner issued her ruling denying the claim. In her opinion, she notes "the difference in testimony between the claimant's testimony and the testimony of the employer's representative ... and the employer's witness." The deputy commissioner then found that

the employer had a safety rule prohibiting use of ladders by custodial staff. We accept [claimant's supervisor's] testimony that he trained [her] on how to clean windows, gave her a "squeegee" and advised her of the safety rule not to use a ladder. Based on the parties' stipulations, we find the claimant fell off a ten-foot ladder while washing windows in the courthouse lobby. We find that the claimant's use of a ladder was a violation of the employer's safety rule.

Although the claim was denied based on willful misconduct, the deputy commissioner further determined that, "[i]f the claim [were] compensable, based on the claimant's testimony, ... we would find the claimant reasonably marketed her remaining work capacity from July 4, 2011 through September 21, 2012."

Claimant sought review of her claim by the full Commission. The full Commission issued its ruling on July 8, 2014. Contrary to the deputy commissioner, a divided Commission found that there had been no safety-rule violation. It based its decision on its finding that employer did not prove a violation of a known safety rule. In support of its ruling, it relied on the supervisor's testimony, which the Commission characterized as "vague, imprecise, and inconsistent[,]" especially with respect to his statements regarding training claimant on how to clean the windows. The Commission found that "[t]he greater weight of the evidence establishes there was no written rule and no specific procedure for cleaning" the windows.

The Commission further noted, "[e]ven if a safety rule was in place, the safety rule was not enforced, as the claimant had used the ladder on a regular basis and received no correction from the employer." The Commission remanded the case to the deputy commissioner for further proceedings.

The matter was heard on remand on July 30, 2014. The deputy commissioner considered the evidence from the prior hearings. She also requested position statements from the parties. Both parties complied, filing their respective position statements on July 29, 2014. Neither party expressly sought to alter, amend or withdraw any of the previously agreed upon stipulations in the position statements.¹

On August 11, 2014, the deputy commissioner issued her opinion on remand. She first noted that the employer previously had agreed that, should the willful misconduct defense fail, claimant sustained a compensable injury. Accordingly, the deputy commissioner then addressed the nature of the injury, finding that the claimant failed to prove a compensable injury to the neck, back or hands, but that she did sustain compensable injuries to her ribs and left shoulder. The deputy commissioner reiterated that claimant reasonably marketed her remaining work capacity. Nevertheless, the deputy commissioner again found that claimant was not entitled to disability benefits, determining that claimant had been released to her pre-injury job. The deputy commissioner further determined that, had partial incapacity been found, appellee's claim would be barred by the economic loss rule, because there was no causal connection between her lost wages and her injury.

Claimant again appealed the deputy commissioner's decision to the full Commission, challenging the deputy commissioner's findings as to which body parts had been injured, whether claimant had returned to full duty, and application of the economic loss rule.

A divided Commission again reversed the deputy commissioner's findings. The Commission elected to accept and rely on the parties' stipulations and found that "the claimant performed light duty" and decided to "enter an award based upon the deputy commissioner's finding that the claimant adequately marketed her residual work capacity." The Commission similarly relied on the parties' stipulation as to the extent of claimant's injuries: "[t]he medical award should reflect the parties' stipulations to include injuries to the neck, back, left shoulder, ribs, and hands." With respect to the economic loss rule, the Commission determined that because "the claimant was laid off from her selective employment job, she was entitled to continuing disability benefits."

Ultimately, the Commission entered an award of $234.41 per week for disability benefits beginning July 1, 2011, and reasonable and necessary medical benefits for industrial injuries to the neck, back, left shoulder, ribs, and hands.

This appeal followed, in which employer presents the following assignments of error:

1. The Workers' Compensation Commission erred in its disregard of the [d]eputy [c]ommissioner's credibility findings of the witnesses and reversal of her findings on two separate hearings.

2. The Workers' Compensation Commission erred in its reversal of the [d]eputy [c]ommissioner and their determination that the claimant did not violate a safety rule/willful misconduct violation and that the claimant's injuries were not a result of that violation.

3. The Workers' Compensation Commission erred in its reversal of the [d]eputy's determination that the claimant had not met her burden of proof on what

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