McCluster v. Baltazar
| Decision Date | 05 December 2017 |
| Docket Number | Record No. 0414-17-2 |
| Court | Virginia Court of Appeals |
| Parties | DEAN McCLUSTER, d/b/a McCLUSTER CONSTRUCTION AND AUTO-OWNERS INSURANCE COMPANY v. VIRGILLIO BALTAZAR |
UNPUBLISHED
Present: Judges Humphreys, Beales and Alston
Argued at Richmond, Virginia
FROM THE VIRGINIA WORKERS' COMPENSATION COMISSION
Roberta Ann Perko (Christopher M. Kite; Lucas & Kite, PLC, on briefs), for appellants.
E. Wayne Powell (Powell Law Group, PC, on brief), for appellee.
Dean McCluster (appellant) argues in this appeal that the composition of the Virginia Workers' Compensation Commission review panel was improper when it heard appellant's first motion to reconsider. Specifically, appellant contends that because a vacancy on the Commission was filled before the motion was heard, Commissioner Rappaport should have served on the review panel. Therefore, according to appellant, the composition of the review panel violated Code § 65.2-705(D). Additionally, appellant alleges that no credible evidence supported the Commission's findings that appellee sustained a compensable injury by accident arising out of and in the course of employment. We disagree and affirm the decision of the Commission.
For the past seven years, appellant1 employed appellee at appellant's construction company, McCluster Construction. Appellant operated McCluster Construction from his property. Appellee performed manual labor on the property as appellant's employee. Appellant was paid $10 per hour during the week for his work. Appellee often worked for appellant on weekends - appellant sometimes paid appellee for his weekend work. To ensure appellee's constant availability, appellant rented a mobile home to appellee, which was located on appellant's property. In addition, appellant fully or partially subsidized appellee's utility and rent payments during months when weather prevented appellee from working. Over the years, appellant and appellant's family developed a friendship with appellee. Unfortunately, McCluster Construction fell on hard financial times and appellant sold the mobile home and surrounding plot of land. In order to close on the sale, the area needed to be cleared. The clearing benefitted both appellant and appellee; proceeds of the sale enabled appellant to pay off McCluster Construction's debts, and appellee was required to vacate and move his belongings to his new home.
On April 26, 2014, a sunny Saturday afternoon, appellant and appellee attempted to clear the mobile home and surrounding plot of land. The pair retrieved a company-owned forklift to remove a non-working pickup truck from the area. When driving the forklift back to the clearing location, appellant operated the forklift from the cab while appellee reclined under the boom, nestled in the frame of the forklift. Appellant drove the forklift with the boom in an upright position, providing him an unobstructed view of his path, the front of the forklift, and of appellee. After arriving at their destination, appellee began to disembark from the forklift. Atthis time, appellant lowered the boom, striking appellee on the head, pinning appellee to the forklift, and knocking him unconscious. Appellant unpinned appellee from the forklift, placing his limp body beside the machine. Appellee sustained a bloody gash to the head and severe spinal trauma. The spinal injury resulted in appellee becoming quadriplegic. In addition, appellee has been diagnosed with depression and delirium.
Appellee filed a claim for temporary total disability benefits commencing on April 26, 2014 and continuing, a lifetime medical award, and payment of medical bills and expenses directly related to his work injuries. In her opinion, Deputy Commissioner Lee indicated that there was conflicting testimony regarding whether actions taken and items removed from the property were business-related, and how exactly appellee sustained his injuries. She relied on appellant's testimony and found that appellee did not prove that he sustained a compensable injury by accident arising out of and in the course of employment. Accordingly, the deputy commissioner found for appellant. Appellee appealed to the Commission, arguing that there was credible evidence to support that he sustained an injury by accident arising out of and in the course of his employment, including his own testimony, expert testimony, medical records, emergency phone calls, and additional physical evidence. The Commission found that appellee had met his burden and reversed the deputy commissioner, awarding appellee temporary total disability benefits commencing on April 26, 2014 and continuing.
Appellant filed a motion to reconsider the Commission's review opinion on February 20, 2017. The bases of that motion were: 1) that no credible evidence supported the Commission's findings that appellee sustained a compensable injury by accident arising out of and in the course of his employment, and 2) that the Commission lacked "an employer representative" pursuant to Code § 65.2-200(D). The review panel denied the motion. In response, appellant made a second motion to reconsider and a motion to vacate. Appellant based this second set of motions on thesame grounds as the first and also argued that the composition of the review panel was improper pursuant to Code § 65.2-705(D). Per Code § 65.2-705(D), the composition of the review panel was proper when the review process was initiated. Because there was a vacancy on the Commission, the Chairman was authorized to appoint a deputy commissioner. Code § 65.2-201(E). However, appellant alleges the composition of the review panel became improper at the time the motion to reconsider came before the review panel. Commissioner Rappaport was sworn in on February 16, 2017, four days before appellant filed his first motion to reconsider. Because the vacancy was filled before the review panel heard the motion, appellant argues that Commissioner Rappaport should have served on the review panel, not Chief Deputy Commissioner Szablewicz.
Ultimately, the Commission found credible evidence to support the finding that appellee sustained a compensable injury by accident arising out of and in the course of his employment. The Commission also found that the composition of the review panel complied with the Code. Appellant appealed to this Court, arguing that the composition of the review panel violated Code § 65.2-705(D) and that there was no credible evidence to support the Commission's findings.
Appellant argues that the composition of the review panel was improper when it heard appellant's first motion to reconsider. Appellant specifically argues that it was inappropriate for Chief Deputy Commissioner Szablewicz to sit on the review panel when another commissioner was available per Code § 65.2-705(D). We disagree.
Conclusions of the Commission on questions of law are not binding on review and are reviewed de novo. See Brown v. Fox, 189 Va. 509, 517, 54 S.E.2d 109, 113 (1949). "An issueof statutory interpretation is a pure question of law," and thus, we must conduct a de novo review. Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citing Crawford v. Haddock, 270 Va. 524, 528, 621 S.E.2d 127, 129 (2005)). This Court is "required to construe the law as it is written[,] and an erroneous construction by [the Commission] cannot be permitted to override the clear mandates of [the] statute." Danville Radiologists, Inc. v. Perkins, 22 Va. App. 454, 458, 470 S.E.2d 602, 604 (1996) (quoting Pavlicek v. Jerabek, Inc., 21 Va. App. 50, 56, 461 S.E.2d 424, 427 (1995)). "When the language of a statute is unambiguous, we are bound by the plain meaning of that language." Conyers, 273 Va. at 104, 639 S.E.2d at 178 (citing Campbell v. Harmon, 271 Va. 590, 597-98, 628 S.E.2d 308, 311-12 (2006)). "[W]e must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity." Id. (citing Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925-26 (2006)).
In conducting this analysis, we first recognize that commissioners and deputy commissioners derive their statutory authority from different sources. Pursuant to Code § 65.2-200(B) a commissioner is elected by the General Assembly and serves a six-year term. Deputy commissioners, on the other hand, are appointed by the chairman of the Commission pursuant to Code § 65.2-705(D). The chairman may make such appointments "when a vacancy on the Commission exists, or when one or more members of the Commission are absent or are prohibited from sitting with the full Commission to hear a review." Code § 65.2-705(D). In addition, the General Assembly empowered review panels comprised of both commissioners and deputy commissioners to act. Under Code § 65.2-201(E), "[a] majority of the commissioners shall constitute a quorum for the exercise of judicial, legislative, and discretionary functions of the Commission, whether there is a vacancy in the Commission or not." (Emphasis added). Achieving a quorum is necessary for the exercise of those powers. Id.
In this case, one commissioner was absent. This absence triggered the mechanism provided in Code § 65.2-705(D). Thus, the Chairman appointed a deputy commissioner to the review panel. The review panel consisted of two commissioners and one deputy commissioner. Because a "majority of commissioners" existed, a quorum was achieved. Code § 65.2-201(E). Therefore, the review panel was authorized to take "judicial, legislative, and discretionary" action; as such, the composition of the review panel comports with the requirements of Code § 65.2-705(D). Id. Considering the plain meaning of the Code, the composition of the review panel was proper.2
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