GLORIA DEQUINTANILLA
v.
TRUTEAM ACE AMERICAN INSURANCE COMPANY, Insurance Carrier CONSTITUTION STATE SERVICES, LLC, Claim
Administrator Jurisdiction Claim No. VA00001678525
Virginia In The Workers' Compensation Commission
June 15, 2021
Date
of Injury November 25, 2019
Claim
Administrator File No. FNN3614
Richard M. Reed, Esquire For the Claimant.
Matthew J. Griffin, Esquire For the Defendants.
MARSHALL Commissioner
REVIEW
on the record by Commissioner Marshall, Commissioner Newman,
and Commissioner Rapaport at Richmond, Virginia.
The
defendants request review of a December 10, 2020 Opinion
which found the claimant rebutted their willful misconduct
defense and awarded medical and disability benefits.
We
AFFIRM.
I.
Material Proceedings
The
claimant filed a December 18,2019 claim for
benefits.
1 It alleged she sustained various
injuries on November 25, 2019 when she fell through a ceiling
to the floor below. She sought a lifetime medical award,
payment of medical bills and prescriptions, authorization for
orthopaedic treatment, and temporary total disability from
November 25, 2019 and continuing.
The
defendants alleged willful misconduct barred the claim. They
asserted the fall and injury resulted from the claimant's
failure to wear a safety harness in violation of the
employer's fall protection rule. They agreed the accident
was compensable if it was not barred by misconduct.
At the
beginning of the hearing, the Deputy Commissioner reviewed
the claims and defenses. Both counsel agreed there was
nothing else they needed to discuss. In addition to the
parties' medical designations, the Deputy Commissioner
admitted documentary evidence from both parties. This
included: an Insulation Work Ticket for a November 25, 2019
job; a designation of the claimant's deposition
transcript; a designation of the deposition transcript of
Maybelline Quintanilla Claudio; a November 19, 2019 safety
meeting attendance sheet; an October 24, 2019 safety meeting
attendance sheet; written material on the employer's Fall
Protection policy; photographs showing the use of a safety
harness and lanyard; and an undated written statement
provided by Travis Harrison.
2
Through
a Spanish translator, the Deputy Commissioner heard the
testimony of the claimant and her daughter, Maybelline
Quintanilla Claudio, who also works for the employer. The
defendants called Sarbelio Villalta Cruz, a sales
representative, and Travis Harrison, an attic insulation
installer, to testify. Defense counsel then moved to exclude
part of the claimant's medical designation.
The
Deputy Commissioner denied the motion. He explained in the
Opinion:
The Commission denied a Motion to Exclude submitted by the
defendants two hours into the hearing and after 4 witnesses
had offered their testimony. The defendants moved to exclude
medical records from the claimant's medical designation
on the basis that they had not been provided prior to the
hearing. The Commission denied the motion as it determined
post-hearing relief was a less harsh penalty. The defendants
argued such relief was inadequate because if they had
received the medical records in advance of the hearing, they
would have approached cross-examination of the claimant at
the hearing in a different manner. There is no dispute the
parties exchanged copies of their medical designations at the
beginning of the hearing. Had the defendants made their
motion at that time, the Commission would have favorably
considered a request for continuance as an alternative relief
to exclusion.
(Op. 2-3.) After denial of the motion, the claimant called
Richard Leake, the employer's production manager, in
rebuttal.
The
Deputy Commissioner held the record open for seven days for
the defendants to advise whether they wished to pursue any
post-hearing relief. The defendants renewed their Motion to
Exclude in November 23, 2020 correspondence. They listed the
designated records which were not exchanged before the
hearing.
3 They contended they had, "been
materially prejudiced by the introduction of said
records/documents without the documents/records having been
produced to defense counsel pursuant to Rule 4.2 of the Rules
of the Commission or the defendants' discovery
requests." They claimed their only viable remedy was
exclusion of the records. They advised the record could
close. The Deputy Commissioner closed the record on November
30, 2020.
On
December 1, 2020, claimant's counsel filed a Motion to
Quash Discovery. The defendants propounded discovery
regarding whether certain records were provided before the
hearing. The claimant's counsel reiterated...
