A. D. STOWE, INC., ET AL. v. JOHN L. CALDWELL

Record No. 0514-92-1Court of Appeals of Virginia. Norfolk.
March 30, 1993

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Roger L. Williams (Daniel E. Lynch; Williams, Butler Pierce, on brief), for appellants.

Karen M. Rye, for appellee.

Present: Judges Willis, Elder and Bray

Argued at Norfolk, Virginia

MEMORANDUM OPINION[*]

[*] Pursuant to Code § 17-116.010 this opinion is not designated for publication.

JUDGE JERE M.H. WILLIS, JR.

The judgment of the Virginia Workers’ Compensation Commission is affirmed in part and reversed in part.

1. The award of compensation to Caldwell is affirmed. If credible evidence supports them, the factual findings of the commission bind this Court. The fact that contrary evidence exists is of no consequence. See Wagner Enters., Inc. v.Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). Caldwell’s description of his fall and injury, corroborated in part by the testimony of William Sawyer, and the medical evidence describing the injury and resulting disability, support the award.

2. We reverse the award of attorney’s fees to Caldwell. Although Caldwell prevailed before the commission, and the record supports the award in his favor, the defense of his claim was not frivolous. Caldwell did not report his injury to his foreman. The foreman observed him shortly after the accident and saw no

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evidence of injury. The evening after the accident, Caldwell went to his doctor to obtain blood pressure medicine. He complained of back pain, but mentioned no injury to his ankle or foot. The next morning, Caldwell called in that he would not be at work that day because of back trouble. Again, he did not mention an injury to his leg, ankle or foot. When he reported the accident, he claimed that his ankle struck a metal crosspiece in a way that was physically unlikely. These circumstances justified the employer’s skepticism as to Caldwell’s claim and its decision to put him to his proof.

3. The assessment of a sanction against A. D. Stowe, Inc. is reversed and remanded. Stowe received medical records on December 31, 1990 and January 3, 1991. It did not file these records with the Workers’ Compensation Commission until February 12, 1991, and did not furnish copies to the claimant for approximately seven months. On its face, this omission violated Rule 17 of the Rules of the Virginia Workers’ Compensation Commission. However, Stowe was denied the opportunity to explain its apparent delinquency. This action constituted an abuse of discretion. Accordingly, the assessment of a sanction under Rule 17 is reversed, and this issue is remanded to the commission with direction to give Stowe an opportunity to explain and then to reconsider the imposition of a sanction in the light of that explanation.

Affirmed in part, reversed in part, reversed and remanded inpart.

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