                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued by Teleconferencing


TOWN OF JONESVILLE MAINTENANCE DEPARTMENT
and
FIDELITY & CASUALTY COMPANY OF NEW YORK

v.          Record No. 0194-95-3        MEMORANDUM OPINION * BY
                                       JUDGE SAM W. COLEMAN III
ROBERT H. SWORD                            FEBRUARY 20, 1996


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Kathryn Spruill Lingle (Midkiff & Hiner,
           P.C., on brief), for appellants.

           Stephen J. Kalista (Lonnie L. Kern, on
           brief), for appellee.



     In this workers' compensation case, the Town of Jonesville

contends that the commission erred in awarding Robert H. Sword,

the claimant, temporary total disability benefits.    Specifically,

Jonesville argues that the commission erred by rejecting the

deputy commissioner's findings as to the credibility of witnesses

without articulating its reasons or rationale, finding that the

claimant sustained an injury by accident arising in the course of

his employment, and finding that the claimant was totally

disabled and had no obligation to market his residual capacity.

We find no error and affirm the commission's award.

     The claimant was employed by the Jonesville Maintenance

Department as an assistant superintendent, and his brother, P.C.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Sword, was employed as the superintendent.    On March 3, 1993, the

claimant, P.C., Burl Nida, and Dennis Collins were digging a

ditch in order to install a new sewer line.   According to the

claimant, P.C. directed him as he dug the ditch with a backhoe.

The claimant testified that after he hit existing sewer lines

while digging with the backhoe, P.C. stated, "[l]ook at that

damned fool," and made other comments that the claimant could not

hear over the backhoe's motor.    The claimant climbed down from

the backhoe and walked towards P.C. to ask him what he had said.

P.C. was holding a shovel, and the claimant warned P.C. not to

hit him with the shovel.   According to the claimant, P.C. then

hit him three or four times in the head with his fists.
     The claimant testified that he and P.C. had experienced some

problems at work prior to this incident and that P.C. called him

names on a daily basis.    However, the claimant denied that he

resented the fact that P.C. was his supervisor.   He also denied

that he walked towards P.C. in a brisk or rapid manner after

leaving the backhoe and that he raised his fist or attempted to

hit P.C.

     James Parks witnessed the confrontation between the claimant

and P.C. from his home, which is located approximately one to two

hundred feet from where the altercation occurred.   Parks

testified that P.C. was cursing the claimant and that the

claimant did not raise his fist at P.C.   However, Parks admitted

that he could not hear specifically what the claimant and P.C.




                                 - 2 -
were saying.

     According to P.C., the altercation began because the

claimant cursed at him and he told the claimant, "[y]ou're

crazy."   The claimant then jumped off the backhoe, cursed him

again, and came at him.   The claimant swung his right hand at

P.C., and P.C. responded by hitting the claimant.    P.C. stated

that he hit the claimant two or three more times because the

claimant continued to struggle with him.   He denied cursing the

claimant or calling him names on the day of the fight, and also

asserted that the claimant did not follow instructions at work

and had cursed him on several occasions prior to the day of the

fight.
     Burl Nida testified that the claimant cursed at P.C. and

then jumped off the backhoe and "went toward him."   Nida stated

that he heard the claimant curse P.C. again after P.C. stated,

"[y]ou're crazy."   Nida testified that he was sitting behind P.C.

and saw P.C.'s hand come up as the claimant approached, but did

not see the claimant raise his fist or swing at P.C.   After P.C.

hit him, the claimant grabbed a pipe from a scrap heap.   P.C.

picked up a shovel and told the claimant to put the pipe down.

Nida testified that he believed that the claimant had started the

fight.

     Dennis Collins was working in the ditch and witnessed only a

portion of the confrontation.   Although he heard P.C. say

something to the claimant, he could not hear exactly what was




                                - 3 -
said because of the noise from the backhoe.   Collins stated that

the claimant appeared angry as he exited the backhoe and

approached P.C., but admitted that he did not see the claimant

swing at P.C.

     After hearing all of the testimony, the deputy commissioner

held that James Parks' testimony was incredible and unpersuasive

because Parks claimed that he could hear what the claimant and

P.C. were saying despite the noise of the backhoe while Dennis

Collins testified that he could not hear the conversation even

though he was much closer.   Conversely, based upon his

"observation of the witnesses," the deputy commissioner found

P.C., Nida, and Collins to be credible witnesses.   Accordingly,

the deputy commissioner held that the claimant provoked the fight

with P.C.
     On review, the commission concluded that "the Deputy

Commissioner did not find that the claimant provoked the

confrontation with anything more than words."    The commission

held that verbal conduct does not foreclose an award under the

Workers' Compensation Act (Act) and reversed the deputy

commissioner's decision.
                  I. Credibility Determination

     "[A] specific, recorded observation of a key witness'

demeanor or appearance in relation to credibility is an aspect of

the hearing that the commission may not arbitrarily disregard."

Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 382, 363




                               - 4 -
S.E.2d 433, 437 (1987), appeal after remand, 9 Va. App. 120, 127,

384 S.E.2d 333, 335 (1989).   Here, the deputy commissioner

discounted James Parks' testimony, but found that P.C. Sword,

Burl Nida, and Dennis Collins were all credible witnesses.

Therefore, Jonesville contends that by awarding the claimant

benefits, the commission reversed the deputy commissioner's

credibility findings without providing any reasons or rationale.

     Pierce does not provide that the commission must articulate

a reason for reversing every credibility determination the deputy

commissioner makes.   Rather, Pierce distinguishes between
credibility determinations based upon specific observations of

appearance and demeanor and those based upon the actual substance

of the testimony.
          When the deputy commissioner's finding of
          credibility is based, in whole or in part,
          upon the [witness's] appearance and demeanor
          at the hearing, the commission may have
          difficulty reversing that finding without
          recalling the witness. On the other hand, if
          the deputy commissioner's determination of
          credibility is based on the substance of the
          testimony and not upon the witness' demeanor
          and appearance, such a finding is as
          determinable by the full commission as by the
          deputy.

Pierce, 5 Va. App. at 383, 363 S.E.2d at 438.   Therefore, the

commission has no duty to explain its decision favoring the

testimony of one witness over another "[a]bsent a specific

recorded observation regarding the behavior, demeanor or

appearance of [the witnesses]."   Bullion Hollow Enterps. v. Lane,

14 Va. App. 725, 729, 418 S.E.2d 904, 907 (1992); see also Kroger



                               - 5 -
Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 881 (1992).

       Here, the deputy commissioner found James Parks' testimony

"incredible and unpersuasive" because "it does not comport with

normal events that [Parks] could hear what was being said two

hundred feet away when Dennis Collins was only a few feet away

and . . . could not hear the conversation because the backhoe

motor was running."    This explanation focuses on the substance of

Parks' testimony; the deputy commissioner did not record any

observation of Parks' demeanor or appearance that negatively

impacted his credibility.   And although the deputy commissioner

stated that "from [his] observation of the witnesses," he found

P.C. Sword, Burl Nida, and Dennis Collins credible, he did not

make a "specific, recorded observation" of their conduct or

demeanor which would have been a basis for determining

credibility that would only have been available and observable by

the hearing officer.    Lane, 14 Va. App. at 729, 418 S.E.2d at

907.
            The principle set forth in Pierce does not
            make the deputy commissioner's credibility
            findings unreviewable by the commission.
            Rather, it merely requires the commission to
            articulate its reasons for reversing a
            specific credibility determination of the
            deputy commissioner when that determination
            is based upon a recorded observation of the
            demeanor or appearance of a witness. In
            short, the rule in Pierce prevents the
            commission from arbitrarily disregarding an
            explicit credibility finding of the deputy
            commissioner.

Id. (emphasis added); see also Morris, 14 Va. App. at 236, 415




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S.E.2d at 881.   Because the deputy commissioner did not base his

credibility findings on any specific recorded observations of

demeanor or appearance, "the full commission could make its own

credibility determination."   Morris, 14 Va. App. at 236, 415

S.E.2d at 881.   Therefore, the commission did not err by

reversing the deputy commissioner's decision without providing a

rationale or reason for disregarding the deputy commissioner's

credibility findings, 1 and its findings of fact will not be

disturbed on appeal if supported by credible evidence.      See Rose

v. Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396

S.E.2d 392, 395 (1990).

     The claimant denied that he approached P.C. with a "raised

fist," and this denial was corroborated by Parks, Nida, and

Collins.   Conversely, no witness could confirm P.C.'s claim that

the claimant attempted to hit him.     Although Nida testified that

he saw "Preston's arm come up" before P.C. hit the claimant, he

admitted that he did not see the claimant attempt to strike P.C.

     1
      It is not clear from the record that the commission
rejected the deputy commissioner's credibility determinations.
The commission did not explicitly reject the deputy
commissioner's findings that Parks' testimony was not credible
and P.C.'s, Nida's, and Collins' testimony were credible, but
based its decision on the grounds that the evidence did not show
"that the claimant provoked the confrontation with anything more
than words." See Birdsong Peanut Co. v. Cowling, 8 Va. App. 274,
278, 381 S.E.2d 24, 27 (1989). Nonetheless, the commission did
find that P.C. "testified vaguely and unconvincingly" and relied
in part on Parks' statement "that the claimant made no
threatening moves toward the supervisor." Therefore, we will
assume for purposes of this appeal that the commission
disregarded the deputy commissioner's credibility determinations.




                               - 7 -
Collins testified that he saw the claimant approach P.C. and

witnessed P.C. strike the claimant "three or four" times, but did

not see the claimant "throw any blows" at P.C.   Therefore, we

hold that the commission's finding that the claimant did not

provoke P.C. with anything more than words is supported by

credible evidence.




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                            II. Accident

     In Virginia, an assault on an employee by a co-worker or

third party may qualify as an accident arising in the course of

employment.    See A.N. Campbell & Co. v. Messenger, 171 Va. 374,

377, 199 S.E. 511, 513 (1938); Farmers Mfg. Co. v. Warfel, 144

Va. 98, 101-03, 131 S.E. 240, 241 (1926).   Injuries sustained in

a fight with another employee are compensable so long as the

fight "was not a mere personal matter, but grew out of a quarrel

over the manner of conducting the employer's business."    Warfel,

144 Va. at 104, 131 S.E. at 241.   However, the injuries are not

compensable if the evidence shows that the claimant was the

aggressor.    Id. (holding that the evidence must show that "the

injured employee was not responsible for the assault").

     "[T]he great majority [of cases from other jurisdictions]

agree that words alone, however inflammatory, are not such

aggression as to deprive claimant of compensation."   1 Arthur

Larson, Workmen's Compensation Law § 11.15(c), at 249 (1995); see
also Warfel, 144 Va. at 103, 131 S.E. at 241 (citing a New York

case which held "that the use of the irritating words by the

employee was no justification for the assault").   However,

because "there is generally no easily distinguishable line

between aggressor and innocent victim in workplace altercations,"

Geeslin v. Workmen's Compensation Commissioner, 294 S.E.2d 150,

153 (W. Va. 1982); see also Larson, Workmen's Compensation Law

§ 11.15(c), at 250-51, we decline to adopt a bright-line rule



                                - 9 -
that words alone are either sufficient or insufficient to

constitute aggression.    Rather, we hold that whether a claimant's

verbal conduct, standing alone, is sufficient to preclude

compensation depends upon the nature of the words and the context

in which they are spoken.     Cf. Kennedy's Piggly Wiggly Stores,

Inc. v. Cooper, 14 Va. App. 701, 706, 419 S.E.2d 278, 281 (1992).

Here, the evidence is clear that the altercation between the

claimant and P.C. resulted from a quarrel over the claimant's

performance of his job.    In addition, the record reveals that the

claimant did not physically or verbally threaten P.C.; P.C.'s own

testimony reveals that the claimant only cursed at him.

Therefore, we hold that, under the circumstances of this case,

the claimant was not responsible for the assault committed

against him and that his injuries resulting from the assault are

compensable under the Act.
                         III. Total Disability

     Jonesville further contends that the commission erred by

finding that the claimant was "effectively totally disabled from

March 4, 1993," and that the claimant did not show that he made

reasonable efforts to market his residual work capacity.    In

determining whether the commission's finding is supported by

credible evidence, we must view the evidence in the light most

favorable to the claimant.     Georgia Pacific Corp. v. Dancy, 17

Va. App. 128, 133-34, 435 S.E.2d 898, 901 (1993).

     The claimant testified that as a result of the assault his



                                - 10 -
left arm "gives [him] trouble," and he has "to sit and work [his]

hand before [he] can even pull [his] pants up" in the morning.

Dr. Stephen Irvin initially treated the claimant on March 4,

1993, and on March 25, 1993, stated that the claimant should not

return to work until cleared by an orthopedist.    Dr. Irvin

referred the claimant to Dr. Daniel F. Klinar, an orthopedist,

who examined the claimant on April 5, 1993, and noted that he

suffered from "limited flexion, . . . rotation and extension in

his neck."   Although Dr. Klinar stated that he "asked [the

claimant] to check into the possibility of light duty work, he

also noted that "[a]pparently all the job options available for

[the claimant] are heavy manual labor jobs and I think it is too

early for him to perform these." 2   (Emphasis added.)   Dr. Klinar

also noted that the claimant "is [not] suitable for driving

because he cannot rotate his head at this point."

     Dr. Klinar examined the claimant again on May 10, 1993, and

found that he still suffered from a "very limited range of

motion."   Consequently, Dr. Klinar recommended physical therapy

and did not change the claimant's work restrictions.     After

several months of physical therapy, the claimant was referred to

Dr. Ken W. Smith, who noted that the claimant continues "to

complain of left arm pain and . . . has undergone a total of 66

     2
      The conclusion that the claimant's job opportunities are
limited is supported by the fact that the claimant is in his late
fifties, has a limited educational background, and has worked at
the same job for approximately thirty years.



                              - 11 -
treatments of physical therapy without relief."    Dr. Smith

recommended surgery for the claimant.

       We hold that credible evidence supports the commission's

finding that the claimant was totally disabled.   Therefore, the

claimant "is not required to prove that he made a reasonable

effort to market his residual work capacity in order to receive

temporary total disability benefits."    Id. at 134, 435 S.E.2d at

901.
       For the foregoing reasons, we affirm the commission's award.

                                                          Affirmed.




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