VIRGINIA by vivi07




Opinion by DIAMOND Commissioner v. VWC File No. 233-66-82


William M. McKee, Esquire for the Claimant. (Copy sent Priority Mail) Gerard E. W. Voyer, Esquire for the Defendants. (Copy sent Priority Mail)

REVIEW on the record by Commissioner Diamond, Commissioner Dudley, and Commissioner Williams at Richmond, Virginia. This case is before the Commission at the request of the employer for Review of the June 6, 2008, Opinion of the Deputy Commissioner. The employer assigns error to the findings that the claimant did not engage in willful misconduct resulting in the May 22, 2007 accident, that the safety rule on which the employer relied was not kept alive by enforcement, and, in the event compensability is upheld on appeal, to the award of temporary total disability benefits from June 13, 2007 through June 18, 2007. We AFFIRM. 1 The claimant filed a June 26, 2007, claim, alleging a compensable injury by accident to his right arm, wrist, hand, shoulder, and elbow. He sought an award of medical benefits and temporary total disability benefits from May 22, 2007, through June 18, 2007.

Considering the issues involved and the complete record developed at the Hearing, we find that oral argument requested by the employer is unnecessary and would not be beneficial in this case. Rule 3.4.; Williams v. Virginia Electric & Power Company, 18 Va. App. 569, 445 S.E.2d 693 (1994).

VWC File No. 233-66-82 On August 13, 2007, the employer filed notice of its defense that the claim was barred by the claimant’s willful misconduct, citing Code §65.2-306 (1), (4) and (5) and stating the intent “to rely inter alia on the defense that you intentionally violated company policy and a known safety rule by reaching over a safety bar and placing your hand and/or arm into the screen printing machine.” The employer also defended that there was no medical evidence to support all periods of disability claimed.2 The claimant, age 21, testified that on May 22, 2007, he was working for the employer as a screen printing director/screen printer operator. He had worked there for two or three weeks. He had screen printing experience in a high school graphics class, but he had worked in other capacities prior to being hired by the employer. On May 22, 2007, the claimant was working on an automatic screen print machine with eight arms which spun around counterclockwise and screen printed T-shirts at high speed. The machine could print 100 T-shirts in twenty to thirty minutes. He was printing T-shirts with multicolor designs and working with Willie and K.C. One man put the T-shirts on the boards that rotated to carry them to the print heads, the claimant working near a print head then added paint to a tray after each shirt was printed, and the other man removed finished T-shirts from the boards and put them into a dryer. The boards spin, then lift up about an inch and a half, print the T-shirt, go down, and spin again. He testified that after each T-shirt printed, he would bend over, get paint from a five gallon bucket near his feet, add it to the tray, and the machine would then spin another T-shirt on its board to be printed.


The employer also defended that the claimant refused its offer of suitable light duty work, failure to market, and that the medical evidence failed to support a finding of injury to the right shoulder.


VWC File No. 233-66-82 The claimant testified that as he was adding paint from a five gallon bucket to the tray, the machine arm began to spin, his fingers were caught in a small hole in the machine, and his right arm was pulled in up to his shoulder, crushing his arm. He denied that he reached over a safety bar, stating that his fingers were on top of the bar when they were caught. He said that the safety bar did not stop the machine due to the way his body twisted when his arm was being pulled into the machine. The claimant stated that he learned the operation of this machine from Mike Williams and Willie Parker, who demonstrated exactly how to operate the machine. He stated that he was using it exactly in that manner when he was injured. He denied that he had been told to stop the machine before adding paint, stated that no one had told him not to operate the machine in the manner he described, and indicated that it would take three times as long if he had to stop the machine each time he added paint. Several photographs of the machine showing the location where the claimant was working and various features of the machine were introduced into evidence as Claimant’s 1-7 and as Employer’s Exhibit 3. The claimant stated that he was standing outside of the safety bars loading paint into the machine when he was injured. He gave a detailed description of what happened. The claimant explained that the employee shown in the pictures was not doing anything he was doing on the day of the accident. The claimant stated that Diana Barrett hired him and denied that Chris Vaigneur, the warehouse manager, trained him in the operation of this machine. He stated that before he was hired Chris showed him various features of the machine, including the yellow safety bars. He identified Mike Williams as the person who showed him the basic operation of the machine and stated that Mike gave him an operator’s manual at his request, and he reviewed it briefly during a 3

VWC File No. 233-66-82 lunch break. He was aware that pulling or pushing one of the yellow safety bars on the machine would cause it to stop. He denied that he had been taught not to lean over the bar or put his arm over the bar while the machine was in operation. He understood that the purpose of the safety bars was to stop the machine. The claimant acknowledged that the operator’s manual included among safety precautions: “Keep all hands, tools, hair, jewelry, and articles of clothing away from the indexer & print head during operations.” He agreed that his fingers were caught in this area. The claimant’s May 31, 2007 statement given to a representative of the third party administrator was admitted into the record. He agreed that he stated, “I was adding to the screen printing machine, right hand fingers got stuck in the machine, machine sucked entire hand in the machine. It had happened because I was told to lean over the safety bar to add paint to the silk screen.” The claimant knew the yellow bar was a safety bar, and he testified that he leaned over it because that is what he was instructed to do at work. In his recorded statement given on June 6, 2007 to Loretta Hargis of Landin, Inc., the claimant agreed that there was a safety bar that he had to reach over to get his hand into the machine. He stated that he was taught to lean over the safety bar. He indicated that no one personally instructed him to reach over the safety bar to put his hand in the machine, “but there is a guy over there by the name of K.G.3 and/or Willie was the ones who told me that one of the upstairs guys… this is the way he wanted it and if it wasn’t done this way you’d get in trouble.” He identified K.C. as a coworker and Mike Williams as his boss. He said he operated the machine in the manner Mike Williams taught him.


The claimant testified at this deposition that this was typed incorrectly and should have said K.C.


VWC File No. 233-66-82 The claimant was taken by ambulance to Virginia Beach General Hospital following the accident and later came under the care of Dr. Davlin for his injuries. He testified that he was completely unable to work form May 22, 2007 through June 18, 2007. He was excused from work, and then Dr. Davlin released him to light duty work on June 12, 2007. During his October 16, 2007 deposition, the claimant testified that when he was initially released to light duty work on June 12, 2007, he did not look for work. He thought that he would be going back to work for the employer. He received a June 14, 2007 letter from Diana Barrett asking him to report to work for the employer on June 18, 2007. He did not report because he was not permitted to drive and had no vehicle at that time. Mike, one of the managers, told him that he would pick him up, and he had been told by Ms. Barrett that the employer would provide transportation. They did not call back and he did not report. He tried to reach Diana Barrett by telephone about work and he was not sure when, but he had difficulty getting her to return his calls. He and his wife had since decided that he would take care of their two small children. Christopher Vaigneur, formerly the employer’s warehouse manager, worked for the employer in that capacity on May 22, 2007, and his duties included handling the warehouse duties plus the screen printing area. He testified that the employer acquired the automatic screen printing machine about fourteen to sixteen months before the claimant’s injury. Mr. Vaigneur attended a three day hands-on training in Charlotte, North Carolina, on the operation of the machine, including all safety features, and also was involved in installing it at the employer’s warehouse. Mr. Vaigneur testified that he spent two days training the claimant in the operation of the machine when the claimant was first hired. During the first day he would not allow the claimant to touch the machine. He stated that he explained the yellow safety bars, what not to do, and provided the claimant with an operator’s manual. He stated that he trained the claimant 5

VWC File No. 233-66-82 not to work over the safety bar and that the machine needs to stop before you add or remove paint from a tray. He denied that he taught the claimant to fill the paint tray while the machine was in operation. He stated that Willie Parker and Kiah Thomas were also involved in training the claimant on the operation of this machine. Mike Williams was knowledgeable, but the witness did not know whether he trained the claimant. Mr. Vaigneur heard the claimant scream and went to the scene of the accident. He understood from his co-workers that the claimant was trying to unload paint while the machine was in production. He testified that he had specifically told the claimant not to do this. After the first two days, Mr. Vaigneur stated that the workers operating the machine continued the claimant’s training. Prior to May 22, 20007, he never saw the claimant load or unload paint while the machine was running. He denied telling the claimant how to do this or encouraging anyone else to do so in order to make the task run faster. Willie Parker, who currently works for the employer, testified that he was so employed doing screen printing on May 22, 2007. He had been employed there for almost two years. He stated that the claimant was supposed to be a supervisor. He taught the claimant what to do and what not to do, including how to load and unload paint and the operation of the yellow safety bars. He testified that a tap on a safety bar stops the machine. Mr. Parker testified that to load or unload paint, you first push the safety bar to assure that the machine does not move and then shut down the front of the main head. He does not load or unload paint while the machine is in operation. He stated that he taught this to the claimant as a safety thing. He testified that it is not proper to bend over or reach over the safety bar while the machine is in operation. He stated that when the machine is shut down, at least one safety bar is in the open position so that the machine will not move, and he taught this to the claimant. 6

VWC File No. 233-66-82 Prior to the accident, Mr. Parker stated that he saw the claimant reach over a safety bar, told him to stop, and explained “He shouldn’t do it because reaching over the safety bar while the machine is on, you’re liable to get hit by it.” On cross examination, Mr. Parker agreed that it is possible to load the machine with paint without reaching over the safety bar. He agreed that normal safety procedures would require the machine to be stopped when doing that. He testified that at the time of the accident, he saw the claimant remove paint from the screen with a scoop, and reach over the safety bar to try to dump the paint in the bucket under the machine. He stated that the machine takes eight or nine seconds for one complete revolution. He could not recall whether they were printing two colors, but he stated that the claimant was removing paint from the screen because excess paint was building up. Mr. Parker stated that he was sitting right behind the machine when the accident happened, and he ran over to help when he saw that the claimant’s arm was stuck but could not do anything and ran and got Mike Williams. Mr. Parker denied that he ever told the claimant how to load paint while the machine was moving or told him that the higher ups wanted it done that way to save time. Mike Williams, operations manager for the employer, testified that he has worked there for more than seven years. In May 2007, he was operations manager/manager, and his duties included making sure that products got out the door correctly, that employees were doing what they were supposed to do, and that people received the training they were supposed to receive. He worked with the claimant, who was hired to run the screen printing department. At the time of the accident, the company had an automatic and a manual screen printing machine, and the claimant was injured on the automatic one. Kyle Thomas and Willie Parker were the screen printing employees. Mr. Williams testified that K.T. and Willie taught the 7

VWC File No. 233-66-82 claimant most of the operation of the machine, although he showed the claimant some safety rules and how to put the paint in when doing mixed colors. He stated that he talked to the claimant about the safety bars, explaining that if you touch them, the machine will automatically shut down. He denied that he told the claimant to load or remove paint by reaching over the safety bar. The machine is stopped while paint is unloaded. When printing multicolor T-shirts, he stated that they first load a couple of colors, then print the first eight, then come back with the bucket beside them and dip the paint and start dropping colors, not over the safety bar but standing in front of the paint tray. Mr. Williams testified that if he were loading paint while doing a mixed color T-shirt, the machine would be in operation, and he would stand directly in front of the paint tray and load the paint by reaching over or under a silver bar above the tray. He would not reach over the yellow safety bar because it is so sensitive that you can barely touch it and the machine shuts down. He stated that when he is adding paint, the machine is still spinning different shirts up under it. The silver bar he reached over or under was not a safety bar. While the machine is spinning, only the T-shirt covered boards move; the silver bar and the yellow safety bars are stationary. Mr. Williams testified that he showed the claimant how to operate the machine in the manner that he operated it and as Mr. Vaigneur had showed him. He was learning at the same time. He agreed that he told the claimant that the way he was showing him was the way the higher ups wanted the shirts done. Mr. Williams could not say whether Willie Parker operated the machine the same as he did. He testified that one day Mr. Parker made a mistake and stepped between the boards in an area after the last screen where there are no safety bars, and the machine slung him into the wall.


VWC File No. 233-66-82 Mr. Williams did not see the accident happen. He came when he heard the claimant scream. He testified that when he arrived, the claimant was directly in front of the safety bar and his arm was over it. His body was turned into the machine. He testified that the only way the claimant could be hit by the board as he was taking out paint or dipping it in was to reach over the safety bar. Diana Barrett, the employer’s office manager, was involved in hiring the claimant. She stated that when the claimant was hired he indicated that he had experience with screen printing machines. She testified that the company gave the claimant an operator’s manual for the automatic screen printing machine, which he never returned. The company had to replace it. On rebuttal, the claimant testified that he did not reach behind the safety bar while the machine was operating, and he denied that Mr. Parker ever told him not to reach over the safety bar while the machine was running. The claimant testified that Mr. Parker told him that reaching over the bar was the fastest way, and that was the way they wanted it done upstairs. The claimant testified that as he was loading paint, the tip of his finger became stuck to the end of the board where there was a gap of about half an inch to an inch between the board and the paint tray. His right arm was pulled into the machine as it continued spinning to the next station. His hand was over the safety bar but not behind it. He testified that Willie and K.T. showed him how to do it that way and Mike Williams told him that this was how to do it. His hand was over the safety bar but not touching it. This was in the area where the board rotates. The claimant was not aware of anything other than the tightness of the space that caused his fingers to become stuck. The claimant was holding a six to eight inch plastic scoop for paint, and it was over the safety bar and was struck by the board, twisting his wrist and allowing his fingers to be dragged 9

VWC File No. 233-66-82 into the gap. The claimant denied that he had a paint bucket underneath the yellow bar between two stations. He agreed that he did not mention the scoop in his deposition. During his deposition, the claimant testified that Chris told him about the machine before he was hired but it was not a detailed description. He had the impression that they were trying to fill the position quickly. After he was hired, his coworkers showed the claimant the safety bars that had to be down in order for the machine to spin. Mike showed him briefly how to work with the machine. He believed that the company had owned the machine about six to eight months before his injury, and no one really knew how to operate it at its fullest capacity. Willie and K.C. also showed him how to operate the machine. He saw K.C. and Willie operating the machine in the same manner as he was when he was injured. He testified that Mike showed him how to put the paint on the machine. During his deposition, he testified that Willie had been knocked over and was almost unconscious but was not totally hurt and the others said it was funny. He also testified that Mike thought it was funny and told him that he sat on the machine, let it spin him around, and then went flying off. The claimant testified that before this accident, he hit his wrist on the machine when it was spinning. At the hearing, the claimant testified that the board hit his elbow on a previous date, and it was not a serious incident. At the deposition, the claimant testified that he was aware that the purpose of the safety bars was to keep a person from standing inside the area where the boards were spinning because they could crush a person. He testified that they stop the machine. When his arm got stuck, he was halfway outside the machine, and his body did not hit the bar. The pertinent medical record reflects that on May 25, 2007 the claimant told Dr. Paul Warren, at Atlantic Orthopaedic Associates, that he was taken to Virginia Beach General 10

VWC File No. 233-66-82 Hospital after his right arm was pulled in and crushed in a screen printer on May 22, 2007. Dr. Warren examined the claimant and noted abrasions to the skin and neuropraxia of the radial nerve branch. He referred the claimant to Dr. Lance B. Davlin, a hand specialist in the same practice. Dr. Davlin examined the claimant on May 29, 2007, and noted the history of a crush injury to the right arm from his fingertips to the mid-humerus. The claimant had numbness over the dorsum of his right hand and was unable actively to extend his fingers and wrist. Dr. Davlin’s impressions were crush injury, right upper extremity and radial nerve palsy, right upper extremity. He prescribed narcotic pain medication and advised the claimant not to drive or work. On June 12, 2007, Dr. Davlin wrote that the employer had made known to his office that one-handed work was available. Dr. Davlin stated that if this was acceptable to the claimant, “he theoretically could be released to one-handed duty.” Dr. Davlin continued the claimant’s light duty restrictions when he saw him on June 19, 2007. He suggested an EMG study and evaluation by a neurologist to assess possible treatments. The claimant had no active extension of the right elbow, wrist or fingers. By July 17, 2007 the claimant’s radial nerve palsy was beginning to resolve. Dr. Davlin opined in a July 17, 2007 letter that he strongly believed that the claimant’s nerve palsy was a direct result of the May 22, 2007 work related injury. He continued treatment. The Deputy Commissioner found that the claimant credibly testified to the mechanism of his injury, and his testimony was supported by the medical evidence. She found that he proved a compensable injury by accident to his right arm from his fingertips to his mid-humerus on May 22, 2007. She rejected the employer’s defense of willful misconduct. She acknowledged the evidence that the operator’s manual advised workers to “keep all hands, tools . . . away from the 11

VWC File No. 233-66-82 indexer & print head during operations,” and that Chris Vaigneur’s opinion was that the machine should be stopped before adding or removing ink. She found that the employer failed to prove the existence of a rule requiring workers to stand outside the arms of the machine while it was in operation. If such a rule existed, she found that it was not kept alive by enforcement, citing the claimant’s and Mike Williams’ testimony that Willie Parker had been knocked down by the moving machine and noting that there was no indication that Mr. Parker had been disciplined. She further noted that the claimant testified that Mr. Williams and others thought that it was funny to sit on the machine, spin around, and then jump off. She found that the machine was operated by employees for unintended purposes without consequences, and that if there were a safety rule, it was not kept alive by enforcement. The Deputy Commissioner noted that the claimant was released to light duty as of June 12, 2007, but he testified in his deposition that he had difficulty reaching Diana Barrett. She awarded him temporary total disability benefits through June 18, 2007. Virginia Code §65.2-306 precludes an award of compensation benefits where the injury results from the employee’s willful misconduct or the breach of any reasonable rule adopted by the employer and brought, prior to the accident, to the employee’s knowledge. To prevail on this affirmative defense, the employer must establish that: (1) the safety rule is reasonable, (2) the employee knew the rule, (3) the rule was for the employee’s benefit, and (4) the employee intentionally undertook the forbidden act. Spruill v. C. W. Wright Constr. Co., 8 Va. App. 330, 381 S.E.2d 359 (1989). The employer is not required to prove that the employee purposefully decided to break the safety rule. It need only be shown that, knowing the rule, the employee intentionally performed the forbidden act. Id. In addition, “the employee may rebut the defense by showing that the rule was not kept alive by bona fide enforcement or that there was a valid 12

VWC File No. 233-66-82 reason for his inability to obey the rule.” Gwaltney of Smithfield, Ltd. v. Hagins, 32 Va. App. 386, 393, 528 S.E.2d 162, 165 (2000) (quoting Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 332, 437 S.E.2d 205, 208 (1993)). The employer asserts that the claimant engaged in the willful violation of a safety rule by intentionally reaching over a safety bar, and that the claimant failed to prove that a rule against reaching over the safety bar was not enforced. On Review, we agree that the employer failed to meet its burden of proof that the claimant violated a known safety rule which was kept alive by enforcement. The operator’s manual does not mention the safety bars. The claimant denied being aware of any rule against reaching over a safety bar while the machine was in operation. He testified that he was loading paint into the machine in the method shown to him by Mr. Williams when he was injured, and, Mr. Williams testified that he himself did not stop the machine to do this task. Mr. Williams testified that he loaded the paint in a different manner than the claimant did, however, he was nevertheless reaching into the area of the indexer and print head during operations, the action against which the operations manual cautioned. It appears from Mike Williams’ testimony that Willie Parker may not have been inside the safety bars when he was struck by a moving board, because this happened in the area of the machine where T-shirts were put on and taken off and there were no safety bars. Regardless, we find that the evidence does not prove the existence of a safety rule kept alive by enforcement. The claimant testified that Mr. Williams, his supervisor, and others told him that it was funny to sit on the moving machine and let it fling them around. Doing this would have put the employee’s entire body inside the safety bars based on the photographs in evidence and tends to show a disregard of safety rules. Mr. Williams was not asked about the claimant’s deposition 13

VWC File No. 233-66-82 testimony on this topic during his hearing testimony. The employer asserts that this horseplay is not possible, and that the claimant’s uncorroborated testimony about it is unreliable and self serving. The Deputy Commissioner observed the witnesses and judged their credibility, and we rely upon this finding. The employer further asserts that if compensability is upheld, the claimant is not entitled to temporary total disability benefits from June 13, 2008 through June 18, 2008. We disagree. As a general rule, the claimant has the burden of proving that he made a reasonable effort to market his residual work capacity after being released to restricted duty. Washington Transit v. Harrison, 228 Va. 598, 600, 324 S.E.2d 654, 656 (1985). Furthermore, as the Court recognized in National Linen Serv. v. McGuinn, 8 Va. App. 267, 272-273, 380 S.E.2d 31, 34 (1989), the Commission must consider various factors, such as the nature and extent of the claimant's disability; his training, age, experience, and education; the extent of, and intent in, his job search; the availability of jobs in his area; and “any other matter affecting the employee’s capacity to find suitable employment,” when ascertaining the claimant’s marketing requirements under the Act. “What constitutes a reasonable marketing effort depends on the facts and circumstances of each case.” Greif Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). However, the “Commission has excused marketing where the disability period is relatively brief and where the claimant has a reasonable expectation of returning to his job.” Rich v. Dominion Virginia Power, VWC File No. 218-16-78, (January 31, 2006); Rojas v. Universal Const. Co., VWC File No. 201-85-35 (December 1, 2003). During the few days for which benefits were awarded after his initial release to light duty, this claimant reasonably believed that another employee would soon begin driving him to work


VWC File No. 233-66-82 for the employer, but this did not happen. Under these circumstances, we can excuse his failure to market residual capacity during these few days. For these reasons, the June 6, 2008, Opinion is AFFIRMED. Interest is payable on the Award pursuant to Code § 65.2-707. This matter is removed from the Review docket. APPEAL This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days of receipt of this Opinion. cc: Jason Paul Hillian Headgear, Inc. Virginia Commerce Group Self-Ins Assoc. Landin, Inc.


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