Power Distribution Prodcuts, Inc. and Argonaut Insurance Company v. James Lockard ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Petty and McCullough
UNPUBLISHED
Argued by teleconference
POWER DISTRIBUTION PRODUCTS, INC. AND
ARGONAUT INSURANCE COMPANY
MEMORANDUM OPINION* BY
v. Record No. 1324-14-3 JUDGE STEPHEN R. McCULLOUGH
MARCH 31, 2015
JAMES LOCKARD
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
S. Vernon Priddy III (Cecil H. Creasey, Jr.; Two Rivers Law Group,
P.C., on brief), for appellants.
Dan Bieger (Dan Bieger, PLC, on brief), for appellee.
Power Distribution Products, Inc., the employer, appeals from the commission’s decision
to grant appellee workers’ compensation benefits. Power Distribution Products argues that its
former employee, James Lockard, quit his selective employment job and could not “cure” his
unjustified refusal to accept selective employment simply by expressing a willingness to return
to the job on the same day that he resigned. In this connection, the employer maintains that our
decision in Thompson v. Hampton Institute, 3 Va. App. 668, 353 S.E.2d 316 (1987), is
distinguishable. Finally, the employer also argues that the commission erred in concluding that
certain issues were not timely raised in the employer’s request for reconsideration. For the
reasons noted below, we affirm the commission’s decision.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
As the deputy commissioner noted, “[t]he testimony from all of the witnesses who
appeared at the hearing was largely consistent on the essential facts of the case.” Power
Distribution Products manufactures electrical equipment for the mining industry. James Lockard
worked there as a high voltage tester. After he sustained a workplace injury, he accepted work
assembling transformers at his pre-injury wage.
During the final inspection of three transformers Lockard helped assemble, Charles
Andrew Barrett, the company’s Chief Operating Officer, noticed a significant defect in the way
the transformer had been assembled. This defect could potentially cause the failure of a $90,000
transformer and endanger the company’s reputation. Lockard’s immediate supervisor, Jason
Jones, summoned Lockard and another employee to a conference room. Barrett informed the
group that they would be reprimanded for poor workmanship.
According to Lockard, he responded that he had done the work as he had been instructed
to do it, and he did not feel that he should be written up. He rose, left the room, and went back to
his work area. According to Barrett, however, Lockard stood up, stated that he would not accept
the reprimand, said, “[I]t’s been nice knowing you,” shook Barrett’s hand, and left the room.
The recollection of other employees in the meeting was similar to Barrett’s.
Lockard knew that the meeting was not over at that point. He later acknowledged that he
did not handle the situation correctly. He explained that he had never been written up before and
he was in “total shock as to what happened.”
Lockard returned to his work area. Teresa Doss, the office manager, was in the meeting
with Barrett, Lockard, and the other employees. Doss sent a text message to the shop foreman,
Tim Webb, informing him that Lockard had resigned.
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Under the company’s standard resignation procedure, a company employee supervises
while the resigning employee packs up and takes his toolbox home. Lockard told Webb that he
was quitting and was going to gather his tools. A short while later, he told Webb, “[W]ell, I’m
going to go on back to work.” Lockard informed Webb that he would be willing to sign the
reprimand so long as “it was honest.” At that point, Lockard no longer intended to quit. Webb
instructed Lockard to return to his work area and assured Lockard that he would find out what to
do.
When Webb reported to Barrett that Lockard had experienced a change of heart, Barrett
had already told the corporate office that Lockard had “effectively resigned from his job.”
Barrett asked Lockard to return to the conference room. Lockard did so. He informed Barrett
that he would sign the written disciplinary form. Barrett decided that he needed guidance from
the corporate office in West Virginia and asked Lockard to return to his work station. The
corporate office took the position that Lockard had resigned and that he would be held to his
resignation. Soon after, Barrett informed Lockard that he was no longer employed. About an
hour had elapsed between Lockard’s return to work and Barrett informing him that he was no
longer employed. At that point, Lockard gathered his tools and left the premises. Webb helped
Lockard load the tools into his truck.
After this incident, the employer ceased paying benefits. Lockard sought to have them
reinstated while the employer sought to terminate them. Following a hearing, the deputy
commissioner found that while Lockard had unjustifiably refused selective employment offered
by his employer, he had cured that refusal and was, therefore, entitled to benefits. He found that,
[t]he claimant in good faith advised his employer that he was
willing to accept the light duty job. The employer refused, electing
to hold the claimant to his resignation. Thus, the claimant’s
current wage loss could be fairly attributed to the employer’s
actions rather than to his own.
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The deputy commissioner considered our decision in Thompson v. Hampton Institute
controlling.
The employer filed a request for reconsideration, arguing that the claimant’s unjustified
resignation precluded the award of benefits. The employer, citing Massie v. Firmstone, 134 Va.
450, 114 S.E. 652 (1922), also contended that the claimant’s own testimony that he was able to
perform his pre-injury job proved that he failed to establish a continuing disability. The deputy
commissioner, by letter dated February 7, 2014, denied the request for reconsideration without
further explanation.
The employer sought review by the commission, contending in Part I of its written
submission that appellant could not “cure” a refusal to accept selective employment by
expressing a willingness to resume work on the same day that he quit the job. In Part II of its
written statement, the employer cited Massie v. Firmstone and contended that the claimant’s own
testimony showed that he was no longer disabled.
In a unanimous decision, the commission adopted the deputy commissioner’s findings of
fact and rulings of law. The commission could “find no basis to distinguish this case from
Thompson v. Hampton Institute.” The commission did not address the employer’s argument that
the claimant’s own testimony established that he was capable of performing his pre-injury job
and, therefore, had failed to prove that he was disabled.
The employer filed a motion to reconsider, arguing that the commission had overlooked
Part II of its written statement. The commission denied the motion, concluding that the
argument in Part II “was not raised at the time of the hearing below as a defense to the claim and
was first raised in the defendant’s February 5, 2014 Request for Reconsideration. We will
accordingly not address it.”
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ANALYSIS
We review the evidence in the light most favorable to the prevailing party below. States
Roofing Corp. v. Bush Constr. Corp., 15 Va. App. 613, 616, 426 S.E.2d 124, 126 (1993).
“Factual findings by the commission that are supported by credible evidence are conclusive and
binding upon this Court on appeal.” S. Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428
S.E.2d 32, 34 (1993). We review issues of law de novo. Masonite Holdings, Inc. v. Cubbage, 53
Va. App. 13, 19-20, 668 S.E.2d 809, 812 (2008).
I. THE COMMISSION CORRECTLY RULED THAT LOCKARD CURED HIS INITIAL
REFUSAL TO ACCEPT SELECTIVE EMPLOYMENT.
An employer may limit the amount of workers’ compensation benefits that must be paid
by offering an injured employee work “suitable to his capacity.” Code § 65.2-510(A). Such
employment is commonly referred to as “selective employment.” “If an injured employee
unjustifiably refuses selective employment offered by the employer, he or she is ‘no longer
entitled to receive disability compensation during the continuance of the refusal.’” ARA Servs.
v. Swift, 22 Va. App. 202, 206, 468 S.E.2d 682, 684 (1996) (quoting Va. Wayside Furniture, Inc.
v. Burnette, 17 Va. App. 74, 78, 435 S.E.2d 156, 159 (1993)); see Code § 65.2-510(A).
However, “once an employee has cured an unjustified refusal of selective employment,
he or she is entitled to reinstatement of benefits.” Food Lion, Inc. v. Newsome, 30 Va. App. 21,
25, 515 S.E.2d 317, 319 (1999); see Code § 65.2-510(B). “An injured employee may ‘cure’ an
unjustified refusal of selective employment provided or procured by the employer by accepting
such employment or by obtaining comparable selective employment.” Timbrook v. O’Sullivan
Corp., 17 Va. App. 594, 597, 439 S.E.2d 873, 875 (1994). In Thompson, we held that,
when an employee who previously unjustifiably refused selective
employment which was procured for him, thereafter, in good faith,
advises his employer that he is willing to accept such work or work
of like kind, the employer must resume the payments for
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compensable injuries even though the procured selective
employment may no longer be available.
3 Va. App. at 671, 353 S.E.2d at 317. We further explained in Timbrook that, when “an
employee on selective employment offered or procured by the employer . . . is discharged for
cause and for reasons not concerning the disability, [that employee] forfeits his or her right to
compensation benefits like any other employee who loses employment benefits when discharged
for cause.” 17 Va. App. at 597, 439 S.E.2d at 875.
The employer argues that Lockard was no longer working for his employer and,
therefore, appellant could not “cure” his refusal to accept the selective employment offered by
the employer. The employer argues that Timbrook, rather than Thompson, supplies the rule of
decision.
This case, however, does not involve an employee who was terminated for cause.1
Instead, Lockard resigned in protest to avoid a disciplinary action. A very short while later,
about an hour, he withdrew his resignation and expressed a willingness to return to the selective
employment. Although Lockard was terminated a short while later, none of the witnesses
testified that he was terminated for cause; rather, the corporate office took the view that “he had
resigned and we were going to hold him to it.” Lockard was “brought back over and informed
that he no longer had a position at [Power Distribution Products].” In the words of Thompson,
although Lockard “previously unjustifiably refused selective employment,” he afterwards – in
less than an hour – “advise[d] his employer that he [was] willing to accept such work.” 3
Va. App. at 671, 353 S.E.2d at 317. We agree with the commission that Thompson is controlling
and that appellant cured his initial refusal to accept selective employment.
1
We do not suggest that the employer could not have terminated Lockard for cause based
on his outburst. We simply conclude that the commission did not make such a finding and that
the record supports the decision of the commission in this regard.
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II. TAKEN AS A WHOLE, APPELLANT’S TESTIMONY CREATED AN ISSUE FOR THE
FACTFINDER.
The employer did not initially defend Lockard’s claim for benefits on the basis that
appellant was no longer disabled. Following the deputy commissioner’s decision, however, the
employer moved the commissioner to reconsider, arguing that Lockard’s testimony established
that he was not disabled. The deputy commissioner denied this request without explanation.
The employer again raised this issue before the full commission which did not address it. When
the employer moved for reconsideration before the commission, the commission declined,
reasoning that the employer’s argument was not timely. The employer responds that its request
was properly before the commission.2
The employer argues that under Massie, Lockard’s own testimony shows that he failed to
meet his burden of proving his disability. The employer relies on the following exchange, which
occurred during Lockard’s cross-examination:
Q. Alright. Well, if, if PDP had had your pre-injury job available
in September and offered it to you, you would have taken it;
correct?
A. Yes.
Q. Alright. And you believe you could have done it; correct?
A. Yes.
2
The employer’s assignment of error is as follows:
The Full Commission erred in finding that the issues raised
in Part II and III of the Defendants’ July 21, 2014 Request for
Reconsideration to the Full Commission were not timely raised
when such issues were raised by a request for consideration
directed timely to the Deputy Commissioner on February 5, 2014.
Additionally, the Full Commission, by summarily adopting [the]
Deputy’s findings of fact and rulings of law, adopted the Deputy
Commissioner’s February 7, 2014 denial of the request for
reconsideration and, in doing so, the Full Commission brought
such issues forward for consideration on review.
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Assuming the commission erred in failing to address this argument, we proceed to address the
merits of the argument. We hold that, as a matter of law, Lockard’s testimony did not bar the
commission from concluding that he was disabled.
Under the longstanding Massie v. Firmstone rule, a party cannot “rise above her own
testimony.” Bussey v. E.S.C. Rests, Inc., 270 Va. 531, 537, 620 S.E.2d 764, 768 (2005); see also
Crew v. Nelson, 188 Va. 108, 113, 49 S.E.2d 326, 328 (1948) (“[W]here a litigant testifies
unequivocally to facts within his knowledge and upon which his case turns, he is bound
thereby.”). The Supreme Court has cautioned that Massie should not be interpreted so as to “cast
[a litigant] out of court because of some single, isolated statement which, when taken out of
context and pointed to in the cold, printed record on appeal, appears to be conclusive against
him.” Va. Elec. & Power Co. v. Mabin, 203 Va. 490, 493-94, 125 S.E.2d 145, 148 (1962).
Instead, “a litigant’s testimony [must] be read as a whole.” Id. at 494, 125 S.E.2d at 148. “A
damaging statement made in one part of his testimony must be considered in the light of an
explanation of such statement made in a later part of his testimony.” Id. If after reviewing the
litigant’s testimony, “taken in its entirety[,] it does not clearly and unequivocally appear that his
case is without merit, or if the minds of reasonable men would differ as to the effect of his
testimony, he has not fatally damaged his case,” and the question becomes one for the factfinder.
Id.3
Immediately before the exchange the employer cites, Lockard explained that he liked
working as an electrical test technician and that he was dissatisfied with the work assembling
transformers. He further stated, “I wanted to eventually to get back into my, once they released
3
We assume, for purposes of this opinion, that Lockard’s statements constitute
statements of fact rather than statements of opinion. Massie “does not apply to statements of
opinion.” Baines v. Parker, 217 Va. 100, 104, 225 S.E.2d 403, 407 (1976).
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me from the medical limitations, I wanted to go back to the test department.” Taken as a whole,
Lockard’s testimony established his desire to return to his former position as an electrical test
technician, his dissatisfaction with his current position, and his acknowledgment of the medical
limitations imposed by his physician. This testimony did not remove the disability question from
the province of the factfinder. Accordingly, we find no basis for reversal based on the rule of
Massie v. Firmstone.
CONCLUSION
We affirm the decision of the commission.
Affirmed.
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