Surface Technologies Corp. v. Kerry Ridley ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Overton *
Argued at Norfolk, Virginia
SURFACE TECHNOLOGIES CORPORATION AND
NATIONAL UNION FIRE INSURANCE COMPANY
OF PITTSBURGH
MEMORANDUM OPINION** BY
v. Record No. 1468-98-1 JUDGE NELSON T. OVERTON
FEBRUARY 2, 1999
KERRY ORLANDO RIDLEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
F. Nash Bilisoly (Kelly O. Stokes;
Vandeventer Black, on briefs), for
appellants.
Gregory E. Camden (Montagna, Klein & Camden,
on brief), for appellee.
Surface Technologies Corporation (employer) appeals an award
of the Workers' Compensation Commission (commission) awarding
Kerry O. Ridley (claimant) temporary total disability benefits.
The commission found that claimant sustained a compensable injury
when a co-worker struck claimant's head with a bar. Although
employer has presented several questions for review, they all
amount to the single issue of whether the commission's award is
supported by the evidence. Because we hold that the evidence was
sufficient to support the commission's award, we affirm.
*
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
**
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
The parties are fully conversant with the record and because
this memorandum opinion carries no precedental value, we include
only those facts necessary to disposition of this appeal.
Viewing the evidence in the light most favorable to
claimant, the prevailing party below, see R.G. Moore Bldg. Corp.
v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990), the
evidence proves that on March 7, 1996, claimant was struck from
behind by a co-worker, Timothy Weeks. Weeks was upset because
claimant had re-assigned Weeks to a less desirable job earlier
that day. Weeks and claimant scuffled, claimant pinned Weeks to
the ground and then released him. As claimant turned and walked
away, Weeks picked up a metal bar and struck claimant in the back
of the head.
While there was some conflicting testimony regarding the
cause and nature of the fight, the commission accepted claimant's
testimony as more credible than that of several other witnesses.
The commission found that claimant was injured as a result of
the work-related disagreement and the injury was compensable.
The commission specifically rejected employer's argument that
claimant was the aggressor in the fight or that the fight
constituted "horseplay."
When reviewing the sufficiency of the evidence in support of
compensation awards:
"[w]e do not retry the facts before the
Commission nor do we review the weight,
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preponderance of the evidence, or the
credibility of witnesses. If there is
evidence or reasonable inference that can be
drawn from the evidence to support the
Commission's findings, they will not be
disturbed by this Court on appeal, even
though there is evidence in the record to
support contrary findings of fact."
Ford Motor Co. v. Hunt, 26 Va. App. 231, 236, 494 S.E.2d 152,
154-55 (1997) (quoting Caskey v. Dan River Mills, Inc., 225 Va.
405, 411, 302 S.E.2d 507, 510-11 (1983)). Because the evidence
fully supports the commission's findings, we shall not disturb
them on appeal.
Claimant has placed one additional issue before us. He asks
that employer pay claimant's attorney's fees and costs incurred
by the appeal. While employer's arguments are unoriginal, we
cannot say they were "brought, prosecuted, or defended without
reasonable grounds." Code § 65.2-713(A). We, therefore, decline
to assign claimant's attorney's fees and costs to employer.
Because the evidence is sufficient to support the
commission's findings, we affirm claimant's award.
Affirmed.
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