Klockner Pentaplast of America v. Miller

KLOCKNER PENTAPLAST OF AMERICA AND HARTFORD UNDERWRITERS INSURANCE COMPANY v. BEVERLY HOPE MILLER

No. 1348-20-2

Court of Appeals of Virginia

July 27, 2021

UNPUBLISHED

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Warren H. Britt (Anne C. Byrne; Britt, Byrne & Warren, PLLC, on brief), for appellants.

Daniel Y. J. Park (Elyse H. Stiner; Commonwealth Law Group, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys and O'Brien Argued by videoconference

MEMORANDUM OPINION^[*]

MARLA GRAFF DECKER, CHIEF JUDGE

Klockner Pentaplast of America and Hartford Underwriters Insurance Company (collectively the employer) appeal a decision awarding workers' compensation benefits to Beverly Hope Miller (the claimant). The employer suggests that the Virginia Workers' Compensation Commission erred by concluding that the employer did not meet its burden of proving that the claimant was injured because she intentionally violated a known safety rule and by awarding benefits as a result. The claimant disputes this suggestion and requests sanctions. We hold that the evidence supports the Commission's decision to award benefits. Nevertheless, on the issue of sanctions, we conclude that the employer's assignments of error were not totally unsupported by fact and law, and therefore were not frivolous as the claimant suggests. Consequently, we affirm the award of benefits and deny the claimant's request for sanctions.

I. BACKGROUND^[1]

On January 9, 2020, the claimant injured her hand while working in the employer's manufacturing plant. The claimant's job duties included mixing bulk materials and using a "fork truck" to move the necessary dry and liquid components. She injured her left hand when it was crushed between the fork truck she was operating and a metal crate.

The claimant sought benefits for her injuries pursuant to the Workers' Compensation Act. The employer defended the claim on the ground that she was injured because she intentionally violated a known safety rule requiring her to keep a clear path while operating the fork truck.

The evidence presented during the hearing in the Commission established that the claimant used the fork truck approximately three to four times per hour and had received repeated training on its use during her seventeen years of employment. She earned a perfect score on her most recent recertification test in 2019 and knew she was required to always keep a clear path while operating the device.

Additional evidence established that the fork truck weighed 8,000 pounds and was a "walk-behind" rather than "ride-on" device. Operating the truck required manipulating its handle. One handle position permitted the operator to engage the throttle, while another position prevented the truck from operating.

The claimant explained that her job involved "running two lines" containing multiple machines. She was required to stock materials for the machines quickly using the fork truck, and space was limited under the best of circumstances. The claimant said that she had only an "alleyway to work in" and that employees were "constantly trying to keep the path open" for "moving the material" around. She provided details regarding the single "path," stating that in two places where the machines were located, she had "[j]ust enough" room to place the pallet containing the material, "pull [the fork truck] back out, and go."

On the day of the accident, the claimant was aware that several metal crates were in the area. She noted that despite the presence of a large sign on the wall identifying where the metal crates should be placed, someone had put "three or four extra ones" in the wrong place in the alley. The claimant explained that the fork truck she used was not large enough to move those metal crates safely.

Despite the improper placement of the crates, the claimant was performing her job. After delivering one pallet of material to the position stand closest to the metal crates, the claimant successfully moved the fork truck away from the pallet. She then transported a second pallet of material into position directly behind the first one without difficulty. Believing that she had enough room to maneuver the fork truck out safely as she had done after moving the first pallet, the claimant began to move it away from the second pallet. When she took a few steps toward the metal crate and began to make a left turn, she "realized" that she was "not going to make it." She "put her left hand against the metal [crate]," used her right hand to move the fork truck handle to the "stop" position, and "tr[ied] to get out of the way." The claimant believed that throwing up the handle would make the fork truck stop, albeit perhaps not instantaneously. While she was looking toward the crate and away from the truck, it "roll[ed] into [her] hand" and pushed it into the metal bars on the crate, causing her injuries. During various portions of her testimony, the claimant demonstrated for the deputy commissioner how the accident happened by "pretend[ing]" that "the witness stand [w]as the fork truck."

The claimant was out of work for a period of time due to the injury. About a month after she returned to work, she received a written reprimand and suspension for using the fork truck improperly at the time of her injury. The reprimand stated that she had used the fork truck improperly by walking backward while operating it. The document did not indicate that she had violated the rule requiring the operator to keep a clear path. The claimant refused to sign the reprimand because she believed it incorrectly described what happened. She testified that she "act[ed] in accordance with [her] training" at all times.

On cross-examination, counsel for the employer asked the claimant why she did not notify someone that the metal crates were in the wrong place. She replied, "I did." She explained that she had told her supervisor days earlier that the supplier was "putting stuff just anywhere" and he responded simply, "Yeah, I know." When the employer's counsel asked the claimant why she continued to work around the improperly placed metal crate on which she injured herself, she said that her job was to load the position stands serving the machines on her line and that she "ha[d] to put [her] material there." She further explained that she had only one machine on which she could use that particular type of material and did not "have an option to say, 'Oh, well, there's not going to be a clear path, I can't use [that machine today].'"

Counsel for the employer responded by characterizing her action as "ma[king a] decision to operate the forklift irrespective o[f] whether . . . [she] ha[d] a clear path." The claimant disagreed, insisting she in fact "had a clear path." (Emphasis added). She noted that she "moved [the material] in there just fine." The clamant explained that once she "s[aw that she] wasn't going to make [the turn], [she] stopped." The employer's counsel asked once again "You don't have time to see if you've got a clear path?" The claimant responded, "Yeah, I have time."

The employer presented testimony from Charles Doane, its manager of environmental health, safety, and security, and Lance Grubb, the claimant's immediate supervisor. According to Doane, the fork truck would not stop instantly due to its weight. He opined that if the claimant was operating the fork truck in the manner she indicated, she violated the "clear path" safety rule. Doane further explained that even though the pallet "went in fine," the claimant would need more than an additional three feet of clearance to withdraw the forks from the pallet and back out. He also theorized that the claimant was walking backward at the time or she would not have injured her hand. Lance Grubb similarly opined that the claimant must have been walking backward at the time of the accident. He admitted, however, that he did not see the accident or the position of the fork truck immediately after it. Finally, neither man testified that the claimant had "any prior infractions using the fork truck." In fact, Doane testified that to his knowledge, she had not received any such infractions.

The deputy commissioner concluded that the evidence did not prove that the claimant intentionally violated the "clear path" safety rule. He noted that he "observed the claimant carefully" as she testified. He "saw nothing in her expressions, mannerisms[,] or demeanor" causing him "to conclude that [the claimant's] testimony should not be entitled to evidentiary weight." The deputy commissioner further noted that the metal crate "remained in the same position" during the relevant time period and the claimant had "successfully avoided" the crate "with the fork truck on three prior trips through the area shortly before her accident." As a result, he reasoned that the evidence proved, at most, that she misjudged the distances, an act of negligence, and he entered an award of benefits.

The employer filed a request for review, arguing that the claimant gave testimony constituting a "glaring admission" that she knew she did not have a clear path. The Commission disagreed, noting that the claimant "consistently testified that she believed she had a clear path" during the relevant time frame. The Commission agreed with the deputy commissioner's assessment that "[t]he evidence as a whole d[id] not establish" that the claimant's hand injury resulted from her "intentional action to violate the employer's safety rule to keep a clear path of travel" while using the fork truck. Accordingly, the Commission unanimously affirmed the award of benefits.

II. ANALYSIS

The employer argues that the evidence proved that the claimant was injured because she violated a known safety rule. As...