Mouhssine v. Crystal City Laundry

• Decision Date: 14 May 2013
• Docket Number: Record No. 1633–12–4.
• Citation: 741 S.E.2d 804,62 Va.App. 65
• Parties: Abdelhadi MOUHSSINE v. CRYSTAL CITY LAUNDRY and New Hampshire Insurance Company.
• Court: Virginia Court of Appeals

62 Va.App. 65

741 S.E.2d 804

Abdelhadi MOUHSSINE

v.CRYSTAL CITY LAUNDRY and New Hampshire Insurance Company.

Record No. 1633–12–4.

Court of Appeals of Virginia,

Alexandria.

May 14, 2013.

Zeeshan M. Elahi (The Law Offices of Zeeshan M. Elahi, LLC, on brief), for appellant.

John C. Duncan, III (Duncan and Hopkins, P.C., Fairfax, on brief), for appellees.

Present: BEALES, McCULLOUGH, JJ., and CLEMENTS, S.J.

BEALES, Judge.

Abdelhadi Mouhssine (claimant) appeals the unanimous decision of the Virginia Workers' Compensation Commission (the commission) denying his claim for benefits based upon its finding that claimant willfully breached a workplace safety rule requiring claimant to wear a back brace. SeeCode § 65.2–306(A)(5). On appeal, claimant argues that the commission'sfinding was erroneous because he claims that his employer, Crystal City Laundry (employer), failed to enforce its back brace safety rule. Claimant also argues that the commission erred when it did not find that he remained totally disabled from employment. For the following reasons, we affirm the judgment of the commission.

I. Background

The evidence below establishes that claimant was a laundry attendant for employer and had worked in that capacity since 2004. Claimant injured his back at work on April 27, 2009. Claimant's injury occurred while he was picking up dirty towels from a laundry cart and placing those towels in an industrial washing machine. Claimant filed a claim for benefits in the commission seeking temporary total disability benefits from April 27, 2009 and continuing (while reserving a claim for permanent total disability benefits). In response, employer filed a “Notice of Willful Misconduct/Violation of Employer's Safety Rules” pursuant to Commission Rule 1.10, alleging that claimant had breached a workplace safety rule requiring him to wear a back brace. Claimant has never contended that he was wearing a back brace when he was injured on April 27, 2009.

At the evidentiary hearing in the commission, the deputy commissioner heard testimony from Mark Edelin (claimant's direct supervisor) and Lois Green (employer's general manager at the time of claimant's injury) describing the task claimant was performing at the time of his injury on April 27, 2009. Edelin testified that claimant's injury occurred in what he described as the “washroom,” “back area” or “loading area” of the premises and that two employees were required for the task. Edelin explained that one employee would “help arrange carts or move empty carts while the other one's loading.” At the time of his injury, claimant was the employee loading towels into employer's industrial washing machine. Green testified that the washing machine is not “a regular washer, it's a tunnel washer.” Green explained that, since the process of lifting towels and loading them in the tunnel washer involves heavy lifting and a lot of “repetitive movement,” wearing a back brace is necessary for performing that task because the brace “holds you real tight” and reduces the risk of a back injury. Similarly, Edelin testified that employees who unload dirty towels from the carts and load the tunnel washer need to wear a back brace because that task involves “repetitious lifting” of significant weight. Edelin testified, “When you're working that station, loading ... the wash[ing] machine, you're supposed to be wearing a back brace.”

For purposes of this appeal, there is no dispute that claimant was required to wear a back brace when his injury occurred on April 27, 2009. At the evidentiary hearing, claimant acknowledged signing employer's “Mid–Atlantic Regional Laundry Back Brace and Safety Shoe Policy” (“written policy”) on November 3, 2004.¹ While claimant indicated that he did not believe that the written policy applied because he was not loading or unloading a linen delivery truck when he was injured on April 27, 2009, claimant also acknowledged on cross-examination that his supervisors gave verbal instructions requiring him and other laundry employees to wear a back brace while doing heavy lifting. Furthermore, Edelin and Green both testified that laundry employees were regularly instructed during department “standup meetings” to wear a back brace while performing tasks that involved heavy lifting—such as loading and unloading the laundry carts.

According to Edelin, the following safety rule is communicated to the employees verbally during regular “standup meetings” in his department: “It's part of your uniform and if you're ... moving carts or working in the washroom area or working on the truck [it] is required to have your back brace on at all times.” (Emphasis added). Edelin testified that this back brace rule is communicated to laundry employees “several times a month” and that claimant was required to attend (and did, in fact, attend) those regular meetings. Neither Edelin nor Green (who was present at many such meetings) had any doubt that claimant was aware of the back brace rule, as that rule was communicated at the department's “standup meetings” that claimant attended.

Claimant testified that the back brace rule was only sometimes mentioned by supervisors at department meetings and that he saw other laundry employees not wearing a back brace while lifting heavy objects. Claimant testified that he sometimes wore a back brace while loading the washing machine and sometimes did not. However, neither Edelin nor Green—whom the deputy commissioner found were more credible witnesses than claimant—testified that they ever permitted their employees to perform this task without wearing a back brace. Edelin testified that he occasionally performs this specific task himself and that he wears a back brace when doing so because it is “company policy.”

Edelin testified that he observed claimant not wearing (or not properly wearing) a back brace four to six times. Edelin testified that claimant—whom Edelin described as “a role model worker”—was not given a written warning or threatened with termination on any of those occasions. Edelin explained that, on those four to six occasions, he instead gave claimant a verbal directive to put on or properly secure a back brace. On one such occasion, Edelin even loaned claimant his own back brace. Edelin testified that claimant always complied with Edelin's verbal directives to wear or secure a back brace.

Following the evidentiary hearing, the deputy commissioner issued a written opinion finding that employer proved its defense that claimant willfully disregarded a workplace safety rule and that compensability was barred under Code § 65.2–306(A)(5).71 Noting that it engaged in further analysis only “[f]or the sake of completeness,” the deputy commissioner also found that claimant was totally disabled from work from May 22, 2009 through March 3, 2011. Claimant requested full commission review of the deputy commissioner's finding that he willfully disregarded a workplace safety rule. However, neither party requested full commission review of the deputy commissioner's finding concerning the duration of claimant's total disability. Therefore, as the commission noted in its review opinion, that particular finding became final and was not considered by the commission on review. Claimant never moved for reconsideration of that issue.

In its review opinion the commission unanimously affirmed the conclusion reached by the deputy commissioner, finding:

[T]he claimant contends that the employer's written policy was the best evidence of the back brace rule, and that the employer's policy did not require the claimant to wear a back brace to load the linen from the cart to the washing machine. The claimant also argues that the policy was not kept alive through bona fide enforcement. We disagree.

The Deputy Commissioner credited the testimony of the employer's witnesses, and we decline to reverse those credibility determinations. We find that the employer had a written policy which required employees who were loading linens on and off the truck to use a back brace. We further find that the claimant knew he was required to wear the back brace when lifting heavy towels as well and that the employer proved that this rule was enforced by correcting employees and telling them to wear the brace.

(Emphasis added).

II. Analysis

A. Willful Breach of a Workplace Safety Rule

In his first assignment of error on appeal, claimant challenges the commission's conclusion that the provisions of Code § 65.2–306(A) bar his claim. That statute states, in pertinent part:

No compensation shall be awarded to the employee or his dependents for an injury or death caused by:

1. The employee's willful misconduct or intentional self-inflicted injury;

* * * * * *

5. The employee's willful breach of any reasonable rule or regulation adopted by the employer and brought, prior to the accident, to the knowledge of the employee....

Code § 65.2–306(A) (emphasis added).

1. Scope of Claimant's Argument Pertaining to this Assignment of Error

Claimant alleges in his first assignment of error that the commission erred “in finding that [his] claim is barred by willful misconduct” under Code § 65.2–306(A)(5)² because the commission “failed to consider case precedent ... which would rebut bona fide enforcement of safety rules.” On brief and during oral argument in this Court, claimant's appellate counsel has clarified that the scope of this first assignment of error does not pertain to the commission's finding that employer proved the statutory elements of the defense available under Code § 65.2–306(A)(5)—but instead only challenges the commission's finding that employer's back brace rule was “kept alive through bona fide enforcement.” See, e.g., Buzzo v. Woolridge Trucking, Inc., 17 Va.App. 327, 332, 437 S.E.2d 205, 208 (1993).

While the Virginia Workers' Compensation Act (the Act) has never actually included any such language in its statutory text, Virginia's case law addressing the defense afforded to...