Truteam & Ace Am. Ins. Co. v. Dequintanilla
| Docket Number | 0719-21-4 |
| Decision Date | 01 February 2022 |
| Parties | TRUTEAM AND ACE AMERICAN INSURANCE COMPANY v. GLORIA C. DEQUINTANILLA |
| Court | Virginia Court of Appeals |
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Matthew J. Griffin (Lucas & Kite, PLC, on brief), for appellants.
Richard M. Reed (The Reed Law Firm, P.L.L.C., on brief), for appellee.
Present: Judges Beales, O'Brien and Russell
RANDOLPH A. BEALES JUDGE.
Truteam and its insurance provider, Ace American Insurance Company (collectively "Truteam"), appeal the unanimous decision of the Virginia Workers' Compensation Commission ("the Commission") awarding continuing temporary total disability benefits for one of Truteam's employees, Gloria DeQuintanilla. DeQuintanilla was injured when she fell from an attic while working for Truteam. On appeal, Truteam contends that the Commission erred in finding DeQuintanilla's injuries to be compensable even though she was not wearing a safety harness at the time of the accident. See Code § 65.2-306(A)(5). In addition, Truteam argues that "[t]he Commission erred in its rulings/finding on [DeQuintanilla's] disability and entitlement to wage loss benefits." Truteam also contends that the Commission erred in affirming the deputy commissioner's denial of Truteam's motion to exclude, in affirming the deputy commissioner's granting of DeQuintanilla's motion to quash, in its credibility findings, and in allegedly failing to comply with Code § 65.2-705.
In July 2019, Gloria DeQuintanilla was hired by Truteam to install wall insulation. A few months later, Richard Leake, the production manager in charge of attic installation, temporarily assigned DeQuintanilla to work with Aaron Travis Harrison in installing attic insulation. DeQuintanilla worked with Harrison for approximately two and a half months preceding her accident. Her main responsibility was to load insulation material into the hopper - a machine that grinds up insulation to be blown into the attic. However, she also helped Harrison, working with him in attics on a weekly basis.
On November 25, 2019, while working for a subsidiary of Truteam, DeQuintanilla was using a foam pistol to seal wood in an attic when she fell approximately eight feet through the sheetrock to the floor below landing on her right side. She was not wearing a safety harness. Initially unable to get up, DeQuintanilla eventually managed to stand up and actually returned to work.
Later that day, DeQuintanilla went to the hospital. She complained of "throbbing pain to [her] head, neck, back and right hip." An examination and tests revealed that she fractured her lumbar vertebrae and a rib on her right side. She also suffered a head injury and multiple contusions. The hospital released DeQuintanilla the same day with a note stating that she "[m]ust be cleared by MD before returning to work."
On December 18, 2019, DeQuintanilla filed a claim with the Commission for injuries to her right hip, right ribs, stomach, back, right leg, and right wrist, and for a concussion. DeQuintanilla claimed that she sustained these injuries when she "tripped and fell through [the] ceiling onto [the] floor below." She sought ongoing temporary total disability benefits, medical benefits, and payment of medical bills and prescriptions. In December 2019, DeQuintanilla began seeing Dr. Ashok Gowda for the injuries she sustained from her fall. She saw him periodically for follow-up appointments. Dr. Gowda's records reflect that DeQuintanilla consistently complained of pain in her lower back and frequently complained of numbness in her lower extremities. Furthermore, Dr. Gowda reported that basic activities aggravated the pain (e.g., walking, sitting, standing, bending, etc.) and found her unable to work after each visit. Dr. Gowda's records from November 3, 2020 reflect that DeQuintanilla suffered from "[b]ack pain [that] radiates to the right hip and right lower extremity" and "[standing, floor exercises, walking, and climbing stairs aggravates the pain." He determined that she was "unable to work due to pain" and listed diagnoses of "Cervical & Lumbar Radiculopathy, Vertebral: Rib Fracture." Furthermore, he noted that he wanted to follow up with DeQuintanilla in four weeks.
A hearing before the deputy commissioner was held on November 20, 2020. At the time of the hearing, DeQuintanilla had amended her claimed injuries to include cervical sprain, chest, lumbar sprain, L1 through L5 vertebrae fractures, and both ankles. At the hearing, DeQuintanilla testified through a translator because she does not speak English. She testified before the deputy commissioner that she continues to suffer from dizziness, headaches, photosensitivity, and pain in her lumbar spine, feet, ankles, and right pelvis area. She also testified that Dr. Gowda had not yet released her to work and that she had not worked at all since the accident.
At the hearing, Truteam argued that DeQuintanilla's injuries resulted from her willful violation of a known safety rule and, therefore, were not compensable. The parties agree that Truteam had a rule requiring employees to wear a safety harness "if exposed to a fall of 6 feet" or more. At the time of the accident, DeQuintanilla was exposed to a fall of approximately eight feet.
Sorbellio Villalta Cruz, a representative for Truteam, testified that Truteam had regular safety meetings at which protection from falls was discussed. He testified that he often translated those safety meetings when he was there and could recall one meeting that he attended during which the safety harness requirement was discussed. Although DeQuintanilla recalled having attended two safety trainings about protection from falls, including the one Cruz recalled attending, she testified that Truteam only showed employees how to properly secure ladders at those meetings and never trained her on the use of a safety harness. Furthermore, she testified that she was never given a safety harness.
When asked how the safety policies were enforced, Leake testified that Truteam enforced its safety harness policy by job site inspections. However, when Harrison was asked whether job site inspections were usual, he responded, "It varies during the weeks." There was also testimony that Leake never showed up when DeQuintanilla was actually working in the attic during the two and a half months she worked with Harrison.
Leake testified that Harrison was the "lead man" on the job site where DeQuintanilla worked. According to Leake, the "lead man" has control over the day-to-day activities on the job site in Leake's absence and also has the responsibility to ensure that the job site is safe. Leake testified that if the job site was not safe and management could not be reached, Harrison had the authority to shut down the job site until it was made safe. Furthermore, Harrison testified that, when it was just he and DeQuintanilla on the job site, he was the one who decided what work to do and how to do it.
Harrison knew that Truteam required employees to wear a safety harness when exposed to certain heights. Nevertheless, he testified that, in the two and a half months he and DeQuintanilla had worked together, he had "never seen her [DeQuintanilla] with one [a safety harness] on." Furthermore, Harrison testified that he did not always wear a safety harness himself. DeQuintanilla testified that she never saw Harrison wearing a safety harness while in the attic during the two and a half months they worked together. Harrison also testified that neither of them was wearing a safety harness on the day of the accident.
At the beginning of the hearing, both DeQuintanilla and Truteam exchanged their medical designations, which the deputy commissioner then admitted into the record. Neither party objected to the medical designations at that time. Just prior to commencing with testimony, the deputy commissioner asked whether either party wanted to address any further preliminary matters. Counsel for Truteam and counsel for DeQuintanilla both declined. However, after all but one witness had testified, Truteam made a motion to exclude several of DeQuintanilla's medical records on the grounds that they were not timely produced or given to Truteam.[1] The deputy commissioner denied the motion to exclude, explaining that Truteam failed to timely make its motion (waiting until the hearing had nearly concluded) and that "the Commission rarely excludes medical evidence" in matters before it. Although he denied the motion to exclude, the deputy commissioner gave Truteam seven days to inform him whether Truteam wanted to submit any rebuttal evidence or to cross-examine witnesses. Three days later, Truteam informed the deputy commissioner that it had decided not to avail itself of any of the options that the deputy commissioner had offered and instead insisted that "the only remedy is exclusion of the evidence at issue." Truteam also stated that "it would then appear appropriate to close the record and proceed to issuance of the Opinion in this matter."
On November 30, 2020, ten days after the hearing, the deputy commissioner closed the evidentiary record. That same day Truteam mailed interrogatories to DeQuintanilla seeking information on whether DeQuintanilla had produced and submitted her medical records in compliance with Rule 4.2 of the Commission. DeQuintanilla filed a motion to quash discovery, which the deputy commissioner granted, given that he had already offered Truteam several remedies due to DeQuintanilla's untimely submission of some of her medical records.
The deputy commissioner issued an opinion on December 10, 2020 in which he found some of DeQuintanilla's injuries compensable. Although DeQuintanilla was not wearing a safety...
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