                    COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


NOVA SUPPLY, INC.
                                       MEMORANDUM OPINION *
v.   Record No. 3031-96-4        BY JUDGE JOHANNA L. FITZPATRICK
                                          JULY 8, 1997
MICHAEL G. CLARK


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Lisa C. Healey (Siciliano, Ellis, Dyer &
           Boccarosse, on brief), for appellant.
           Michael W. Heaviside (Ashcraft & Gerel, on
           brief), for appellee.



     On appeal from the commission's award of compensation to

Michael G. Clark (claimant), Nova Supply, Inc. (employer)

contends that the commission erred in finding (1) that employer

could participate in the hearing without legal representation and

(2) that the evidence was sufficient to demonstrate that claimant

was an employee and that he sustained a compensable injury.      For

the reasons that follow, we affirm the decision of the

commission.

                            I.   BACKGROUND

     Claimant and Wade Burgess (Burgess) were involved in an

altercation that occurred on September 14, 1995.    As of that

date, Burgess was the minority owner of the business of Nova

Supply, Inc., and Naomi Stager (Stager) was the majority owner of

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the business.   Claimant was employed as a driver and warehouse

supervisor.

     On September 14, 1995, claimant and Stager arrived at the

workplace to discover that Burgess "had changed the keys --

changed the lock, had it re-keyed --."   Burgess then physically

assaulted Stager when she attempted to enter the office part of

the building.   Claimant watched from the doorway as Burgess

"kicked and punched [Stager] and threw her out of the --

physically threw her out of the building after, after she

arrived."    Upon observing this behavior, claimant decided that

"since she had told me that I had a job and she didn't have any

control, I just wanted to get my things and, and my paycheck and

get away."    However, before he could do so, he was physically

assaulted by Burgess.   Burgess "grabbed" claimant and pulled him

into the building.   Claimant's foot caught in the door and

snapped as the two fell into the building and onto the floor.

Claimant sustained a "closed fracture and dislocation of the

right ankle."   He was taken to Fairfax Hospital where he received

emergency "surgical intervention in the form of open reduction

and fixation and stabilization with screws."   Claimant applied

for and received compensation from September 14, 1995 and

continuing.
     At the hearing before the deputy commissioner on May 23,

1996, Beth Pettipas, a former employee for Nova Systems, Inc.,

testified regarding erratic behavior exhibited by Burgess




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throughout her employment, and that on September 14, 1995, she

witnessed Burgess shove and kick Stager.   Pettipas saw Burgess

assault claimant following his assault on Stager, and at that

point, she called the police from her car phone.   When the police

arrived at the scene, they arrested Burgess for the assault and

battery of both claimant and Stager and for possession of crack

cocaine.

     Additionally, Pettipas testified to events that occurred on

September 13, 1995.   She stated that on that date Burgess was in

a "frenzy" and doing "things that didn't make any sense, phone

calls that just were crazy."   She testified that Burgess called

and fired claimant, but that Stager then spoke to Burgess, and

after the telephone conversation, she called the police.   While

they were waiting for the police, Stager indicated that no one

was fired.   Finally, Pettipas stated on redirect that she heard

Stager tell claimant on the morning of September 14, 1995 that he

was not fired, and that on September 13, 1995, she heard Stager

reiterate twice that claimant was not fired.
     Claimant testified that on September 14, 1995, as he was

attempting to retrieve his personal belongings,
          [Burgess] came at me. And the, . . .
          scuffle, . . . came about I guess, and as he
          came at me, and . . . Ms. Stager was standing
          at the door, and when the door shut, . . . I
          didn't have any place to go, basically, as he
          came at me. He came charging straightforward
          at me. He was right there, . . . a couple of
          feet from the door. He had opened the door
          and, and I was standing in the doorway and []
          I . . . just went into submission and just
          kind of put my hands over my head as, as he



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             came at me. And the next thing I know we
             were on the floor, and . . . I had a pain in
             my right, my right ankle, and looked down and
             I could see that my foot was, . . . hanging
             off, and there was the stub of my leg with no
             foot on it. My foot was actually, . . .
             completely -- well, the only thing holding it
             in place was the flesh.


        Burgess testified that he had the sole authority to hire and

to fire employees, and that he had fired claimant on September

13, 1995 for the unauthorized use of a company vehicle.      He

admitted that he changed the building locks on September 13-14,

1995, and that on the morning of September 14, 1995 he pushed

Stager out of the building.    He denied pulling claimant into the

building or otherwise assaulting claimant.     Additionally, Burgess

denied having a drug problem on the dates of September 13-14,

1995.
        Naomi Stager also testified.   She agreed that Burgess made

all the hiring and firing decisions.     However, she stated that

she was the majority owner of the business, 1 and that she did not

recollect Burgess instructing her to get any item or keys from

claimant.    Neither did she recall that she told claimant on

either September 13 or September 14 that he was not fired.

Finally, she denied witnessing what transpired between Burgess

and claimant on September 14, 1995.

        Following the hearing, the deputy commissioner issued an

opinion dated June 6, 1996, and found as follows:
        1
      The fact that Stager was the majority owner of the business
is not in dispute.




                                   4
               In the present matter, the Commission
          determines that the testimony of Beth
          Pettipas and Michael Clark is completely
          credible. The Commission does not accept as
          credible the testimony of either Burgess or
          Stager that Michael Clark had been terminated
          the day prior to his injury by accident.
          Both of the owners of Nova Supply gave
          internally inconsistent testimony with regard
          to Burgess's behavior and actions on
          September 13, and 14, 1995. At various
          points in the testimony of both employers,
          the witnesses stated that they could not
          remember the events accurately.

               In this unfortunate employment
          situation, the Commission believes that
          Burgess was impaired by controlled
          substances, that he acted irrationally, and
          that he was the aggressor in the altercation
          with Michael Clark. Because Naoma [sic]
          Stager is the majority owner of the
          corporation, the Commission finds that she
          has the power to retain or to terminate
          employees. In light of all the circumstances
          described here, the Commission finds that
          even if Burgess told Michael Clark that he
          was terminated, it is more likely than not
          that Stager confirmed to Michael Clark that
          he was still employed. For this finding, the
          Commission specifically relies on the
          testimony of Beth Pettipas that she heard and
          saw this precise series of events occur.


(Emphasis added).   Accordingly, the deputy commissioner found

that claimant was injured on the employer's premises, during the

course of his employment, and awarded claimant temporary total

disability benefits from September 14, 1995 and continuing.

     By opinion dated November 6, 1996, the full commission

affirmed the decision of the deputy commissioner.    The commission

found, regarding the representation of the corporate defendant,

as follows:
               There is no merit to the employer's


                                 5
          argument that the proceedings should not have
          commenced merely because the corporate
          employer was unrepresented. Proper notices
          of the hearing were sent to the employer and
          were not returned, and the appearance of the
          employer's officers is sufficient to confirm
          that they were received. There was ample
          opportunity for the officers to obtain legal
          counsel for the corporation, and they cannot
          now complain because they did not act
          accordingly and because there was therefore
          no legal appearance by the corporate entity.


Additionally, upon review of the record, the commission found

that:
               [T]he corporate officers were not frank
          and candid witnesses, but were instead
          uncooperative and evasive. We particularly
          note that the self-serving testimony of Wade
          Burgess was in some key elements not in
          accord with normal facts, and it was
          inconsistent with and contradicted by the
          testimony even of his own corroborating
          witness.

                  *    *    *    *    *    *    *

               Th[e] evidence establishes that Burgess
          was the aggressor and that the claimant was
          an unwilling victim to Burgess' assault upon
          him. The claimant's injuries therefore arose
          out of and in the course of his employment,
          Park Oil v. Parham, 1 Va. App. 166, 336
          S.E.2d 531 (1985), even if incurred as the
          claimant was actually trying to separate
          himself from the work place because of doubts
          that the employment contract could be
          enforced. Brown v. Reed, 209 Va. 562, 165
          S.E.2d 394 (1969).

               Upon consideration of the entire record
          in this case, we find no merit to the errors
          argued by the employer on review.
          Accordingly, the June 6, 1996 Opinion of the
          Chief Deputy Commissioner awarding benefits
          in this case is AFFIRMED . . . .

            II.   REPRESENTATION BEFORE THE COMMISSION




                                 6
     Employer argues that the corporation was required to be

represented by counsel at the hearing before the deputy

commissioner, and because the officers appeared without a lawyer,

the hearing could not proceed.   Employer's contention is without

merit.

     In this case, the corporate party was the employer Nova

Supply, Inc.   At the hearing before the deputy commissioner, the

deputy commissioner noted for the record that "the employer is --

or the employer, which has been noted as having no record of

insurance, and I guess The Fund -- The Uninsured Employer's Fund

is represented by Assistant Attorney General, Gay Lynn Taxey."

Thus, although Burgess and Stager testified without counsel, the

commission correctly found that they did not testify as the

corporation itself, but as mere employees and as witnesses to the

events in question.   Employer is the party who consciously and

voluntarily proceeded without counsel, and cannot now be heard to

complain.   It may not approbate and reprobate in this manner.
See Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d

613, 615 (1992) (No litigant will be permitted to invite error

and then to take advantage of the situation created by his own

wrong.).    Proper notice of the hearing and ample opportunity to

obtain counsel was afforded Burgess and Stager.   We assume

without deciding, due to their presence at the hearing, that both

Burgess and Stager received the proper notices.   We affirm the

commission's ruling that "[e]videntiary hearings cannot be held




                                  7
hostage because a party elects or otherwise fails to appear for

the scheduled hearing without justifiable cause."




                                8
                III.    SUFFICIENCY OF THE EVIDENCE

     Lastly, employer argues that the evidence was insufficient

to support a finding that claimant was an employee at the time of

the injury or that claimant sustained a compensable injury.     In

support of its argument, employer relies on the testimony of

Burgess and Stager.    However, the commission specifically found

that this testimony lacked a credible foundation.     The record

clearly supports the commission's finding.
     "On appellate review, the factual findings of the commission

are binding if they are supported by credible evidence.      The fact

that there is contrary evidence in the record is of no

consequence if there is credible evidence to support the

commission's finding.   In determining whether credible evidence

exists, the appellate court does not retry the facts, reweigh the

preponderance of the evidence, or make its own determination of

the credibility of the witnesses."    Wagner Enterprises, Inc. v.

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citations

omitted).

     The commission found that the testimony of the corporate

officers was contradictory, "self-serving," "not in accord with

normal facts," and "inconsistent."    Thus, the commission

determined that these witnesses were not credible and relied

instead on the testimony of Pettipas and claimant.    The

commission concluded that claimant was employed by Nova Supply,

Inc. at the time of his injury, that Burgess "was the aggressor,



                                  9
and that the claimant was an unwilling victim to Burgess' assault

upon him.   The claimant's injuries therefore arose out of and in

the course of his employment . . . ."   Credible evidence supports

this finding, and we will not disturb it on appeal.

     Accordingly, for the reasons stated above, we affirm the

decision of the commission.

                                              Affirmed.




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