                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

JASON LIPSCOMB BUILDERS, LLC,
                                                                                        FILED
Employer Below, Petitioner                                                             June 26, 2020
                                                                                 EDYTHE NASH GAISER, CLERK

vs.)   No. 19-0311 (BOR Appeal No. 2053413)                                      SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
                   (Claim No. 2018002087)

DONALD W. DRAIN,
Claimant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Jason Lipscomb Builders, LLC, by Counsel T. Jonathan Cook, appeals the
decision of the West Virginia Workers’ Compensation Board of Review (“Board of Review”).
Donald W. Drain, by Counsel James R. Leach, filed a timely response.

        The issue on appeal is compensability. The claims administrator rejected the claim on
September 5, 2017. The Office of Judges reversed the decision in its August 31, 2018, Order and
held the claim compensable for a right lateral malleolus fracture, a left shoulder fracture
dislocation, a nasal fracture, and a left orbital floor fracture. The Order was affirmed by the Board
of Review on February 25, 2019.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. The facts and legal arguments are adequately
presented, and the decisional process would not be significantly aided by oral argument. Upon
consideration of the standard of review, the briefs, and the record presented, the Court finds no
substantial question of law and no prejudicial error. For these reasons, a memorandum decision is
appropriate under Rule 21 of the Rules of Appellate Procedure.

        A report from the Wood County Sheriff’s Office indicates an officer was dispatched to the
employer’s premises on July 13, 2017, for a physical altercation that occurred between Mr. Drain
and Jason Lipscomb, Mr. Drain’s boss. Mr. Drain reported to the responding officer that he took
a driver to a job site and then informed Mr. Lipscomb that the truck driver was not able to enter
the work site. Mr. Drain stated that Mr. Lipscomb punched him, knocked him down, and kicked
him. The officer observed blood on Mr. Drain’s face and clothing. After medical treatment, Mr.
Drain reported that he suffered a broken ankle, a broken nose, a shoulder injury, and left eye
abrasions.
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        The officer also spoke to Mr. Lipscomb and observed that he had a discolored finger on
his right hand. Mr. Lipscomb stated that he and Mr. Drain got into a verbal altercation when Mr.
Drain said something sarcastic regarding a decision Mr. Lipscomb made. Mr. Lipscomb then asked
Mr. Drain “if there was something he wanted to do about it.” Mr. Lipscomb said that Mr. Drain
then came toward him with his hands up, so Mr. Lipscomb stepped forward also. As Mr. Drain
was grabbing him, Mr. Lipscomb stated that he punched Mr. Drain in the face in self-defense. Mr.
Lipscomb asserted that once Mr. Drain stopped fighting, Mr. Lipscomb ceased hitting him. Mr.
Lipscomb stated that Mr. Drain weighs around three hundred pounds and he did not want to give
Mr. Drain a chance to get on top of him during the fight. Mr. Lipscomb also stated that Mr. Drain
had bragged in the past about winning many bar fights.

         Mr. Lipscomb completed a written statement on July 13, 2017, for the Wood County
Sheriff’s Office. He stated that he asked Mr. Drain to do a job, and Mr. Drain responded that it
was a stupid idea. The two men then got into a verbal argument, and then Mr. Drain walked toward
Mr. Lipscomb with his hands up. Mr. Lipscomb stated that at that point he started walking toward
Mr. Drain. Mr. Drain then grabbed Mr. Lipscomb, so Mr. Lipscomb punched him. Mr. Drain then
fell to the ground and Mr. Lipscomb punched him again. Mr. Lipscomb stated that Mr. Drain
started to get up, so he walked away. Mr. Lipscomb denied punching or kicking Mr. Drain when
he was on the ground and stated that he stopped attacking Mr. Drain when Mr. Drain stopped being
aggressive.

         Jason Lipscomb Jr., 1 Mr. Lipscomb’s son and employee, also completed a statement for
the Wood County Sheriff’s Office on the day of the altercation. He stated that Mr. Drain and a
truck driver had just come back from looking at a job site. Mr. Drain developed an attitude about
Mr. Lipscomb plan to unload a pipe. When Mr. Lipscomb turned toward Mr. Drain, Mr. Drain
stood up and raised his arm. Mr. Lipscomb Jr., stated that Mr. Lipscomb and Mr. Drain then “came
together [and] after a few seconds it was over.” Mr. Lipscomb Jr., stated that after Mr. Lipscomb
felt that he was safe, he stopped attacking.

         In a written statement for the Wood County Sheriff’s Office, Kyle Garner, an employee for
Mr. Lipscomb, stated that Mr. Lipscomb was trying to decide where a truck driver should unload
a pipe on a job site when the altercation began. Mr. Drain “smarted off” about Mr. Lipscomb’s
plan. At that point, Mr. Lipscomb turned around and walked toward Mr. Drain. Mr. Garner stated
that it looked as if Mr. Drain feared Mr. Lipscomb was going to hit him so he tried to defend
himself. Mr. Garner stated that the two men wrestled around for a minute and Mr. Drain fell to the
ground. When Mr. Drain tried to get up, Mr. Lipscomb kept hitting him until someone tried to pull
him away.

       Mr. Garner prepared an affidavit on January 4, 2018, in which he swore that a written
statement be prepared the day before was true and accurate. In the statement, Mr. Garner stated
that on the day in question, Mr. Drain said something sarcastic to Mr. Lipscomb, causing Mr.
Lipscomb to walk back toward Mr. Drain. When Mr. Lipscomb was ten feet away, Mr. Drain leapt

       For the sake of clarity, Jason Lipscomb Sr., will be referred to as “Mr. Lipscomb”
       1

throughout and his son, Jason Lipscomb Jr., will be referred to as “Mr. Lipscomb Jr.”
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off of the trailer he was sitting on and grabbed Mr. Lipscomb’s shoulders. Mr. Garner allegedly
stated that the two men wrestled around for a moment and then Mr. Drain fell, at which point Mr.
Lipscomb walked away. On January 10, 2018, Jason Lipscomb Jr., prepared an affidavit stating
that on the day in question, Mr. Drain was aggressive and belligerent toward Mr. Lipscomb. He
asserted that Mr. Drain started the fight by shoving Mr. Lipscomb and punching him.

        Prasadarao Mukkamala, M.D., performed an independent medical evaluation of Mr. Drain
on January 29, 2018. Dr. Mukkamala opined that Mr. Drain suffered a right lateral malleolus
fracture, a left shoulder fracture dislocation, a nasal fracture, and a left orbital floor fracture.

        In a February 16, 2018, affidavit, Darryl Varner stated that he was the truck driver who
delivered the pipe on the day in question. He stated that when he arrived that day, Mr. Lipscomb
instructed Mr. Drain to show him where to unload the pipe. Mr. Varner and Mr. Drain determined
that the pipe could not be delivered to that site so they returned to the office. After Mr. Drain told
Mr. Lipscomb that the pipe could not be delivered, Mr. Drain stated that perhaps Mr. Lipscomb
should have gone to the jobsite to see for himself. Mr. Lipscomb then turned around, walked
toward Mr. Drain, and threw the first punch. Mr. Varner stated that Mr. Drain put his hands up to
protect himself but was unable to do so. Mr. Drain fell to the ground, where Mr. Lipscomb
continued to punch and kick him. Mr. Varner stated that “[i]n short, Mr. Lipscomb was the
aggressor, he basically blew up, got in [the claimant’s] face and beat the hell out of him.” Lastly,
Mr. Varner stated that Mr. Lipscomb and his wife had been in contact with Mr. Varner several
times since the fight in an attempt to get Mr. Varner to say that Mr. Lipscomb did nothing wrong.
Mr. Varner stated that he does not agree.

        The claims administrator rejected the claim on September 5, 2017. On August 31, 2018,
the Office of Judges reversed the claims administrator’s decision and held the claim compensable
for right lateral malleolus fracture, left shoulder fracture dislocation, nasal fracture, and left orbital
floor fracture. The Office of Judges found that pursuant to Geeslin v. Workmen’s Compensation
Commissioner, 170 W. Va. 347, 294 S.E.2d 150 (1982), the following three factors must be
considered when determining if a claimant is entitled to benefits as a result of a work place
altercation: 1) whether the claimant’s injuries related to his service, 2) the aggressor rule does not
apply, and 3) whether the claimant’s actions amounted to misconduct as set forth in West Virginia
Code § 23-4-2.

        First, the Office of Judges first determined that the fight between Mr. Drain and Mr.
Lipscomb had its origins in work. Everyone who provided statements indicated that the fight
started with a verbal disagreement over where to unload a pipe. The Office of Judges found no
evidence of personal problems between Mr. Drain and Mr. Lipscomb.

        Next, the Office of Judges concluded that Mr. Drain was not the aggressor in the fight. The
surveillance video showed Mr. Lipscomb rapidly approach Mr. Drain. The Office of Judges found
that Mr. Drain’s head did not appear to move until Mr. Lipscomb was very close to his body. At
that point, it appears that Mr. Drain stood up and that Mr. Lipscomb had ahold of Mr. Drain’s
body. The Office of Judges noted that Mr. Drain can be seen raising an arm and bringing it down
around Mr. Lipscomb’s shoulder area. Mr. Drain was then taken to the ground by Mr. Lipscomb
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where they were obscured from view. Mr. Lipscomb Jr., can be seen in the video attempting to
pull Mr. Lipscomb off of Mr. Drain.

         The Office of Judges determined that the statements made by Mr. Lipscomb Jr. and Mr.
Lipscomb, as well as Mr. Garner’s affidavit, were inaccurate in light of the video evidence. Mr.
Garner alleged in his January 4, 2018, affidavit that Mr. Drain leapt off of the trailer he was sitting
on when Mr. Lipscomb was ten feet away and grabbed Mr. Lipscomb’s shoulder. Mr. Lipscomb
Jr., alleged that Mr. Drain started the fight by attacking Mr. Lipscomb first. Finally, Mr. Lipscomb
alleged that Mr. Drain came toward him with his hands up. The Office of Judges determined that
their statements were all refuted by the surveillance video. The Office of Judges found that the
surveillance video most supported the statement Mr. Garner made to the Wood County Sheriff’s
office the day the incident occurred. In that statement, Mr. Garner stated that Mr. Drain smarted
off to Mr. Lipscomb, and then Mr. Lipscomb turned and walked toward Mr. Drain. Mr. Garner
stated that it looked as if Mr. Drain feared Mr. Lipscomb was going to hit him, so he raised his
hands to defend himself. The two men fell to the ground and while Mr. Drain attempted to get
back up, he was unable to because Mr. Lipscomb kept hitting him. Mr. Lipscomb Jr., then
attempted to pull Mr. Lipscomb off of Mr. Drain. The Office of Judges also found the video
supported the statement made by Mr. Varner that Mr. Lipscomb started the altercation and
continued to beat Mr. Drain once he was on the ground.

        The Office of Judges further found that the medical evidence supports Mr. Drain’s version
of the events. He suffered fractures to his nose, left orbital socket, right ankle, and shoulder. Mr.
Lipscomb, on the other hand, was observed by police officers as having a bruised finger. The
Office of Judges determined that the injuries were consistent with Mr. Drain being punched and
kicked repeatedly while on the ground. The Office of Judges noted that in his statement to police
officers, Mr. Lipscomb stated that “[The claimant] went to the ground and I punched him.” The
Office of Judges therefore concluded that Mr. Lipscomb was the aggressor and that his actions
while Mr. Drain was on the ground were excessive. The Office of Judges noted that even if Mr.
Drain were the aggressor, Geeslin provides that “[w]here an altercation arises out of the
employment, the fact that claimant was the aggressor does not, standing alone, bar
compensation[.]” Id. at 352, 294 S.E.2d at 155.

      Lastly, the Office of Judges found that Mr. Drain’s actions did not amount to willful
misconduct as contemplated in West Virginia Code § 23-4-2, which provides in relevant part

       (a) Notwithstanding anything contained in this chapter, no employee or dependent
           of any employee is entitled to receive any sum under the provisions of this
           chapter on account of any personal injury to or death to any employee caused
           by a self-inflicted injury or the intoxication of the employee.

The Office of Judges found in the instant case that there was no evidence of self-inflicted injury,
nor did the employer raise it as a defense. There was also no indication that Mr. Drain was
intoxicated at the time the altercation occurred. Due to the reasons discussed above, the Office of
Judges concluded that Mr. Drain received a personal injury in the course of and resulting from his
employment. Dr. Mukkamala found in his independent medical evaluation that Mr. Drain
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sustained a right lateral malleolus fracture, a left shoulder fracture dislocation, a nasal fracture, and
a left orbital floor fracture. Therefore, those conditions were held compensable. The Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
its Order on February 25, 2019.

         After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. This Court has previously held that claimants who receive
injuries as a result of work-place altercations can receive workers’ compensation benefits. See
Geeslin (holding that a claimant is entitled to workers’ compensation benefits for injuries received
in an altercation). In this case, the evidence indicates that the altercation between Mr. Lipscomb
and Mr. Drain originated in their work. Several statements made by witnesses to the altercation
indicate that the fight began when Mr. Drain “smarted off” to Mr. Lipscomb regarding a decision
he made in regard to their work. The evidence also shows that Mr. Drain was not the aggressor in
this situation. Mr. Lipscomb can be seen on video surveillance rapidly approaching Mr. Drain in
an aggressive manner. The two men grappled with each other and then Mr. Drain fell to the ground,
where it appears Mr. Lipscomb continued to assault him. At least one person can be seen in the
video attempting to pull Mr. Lipscomb off of Mr. Drain. Further, Mr. Drain sustained serious
injuries (four fractured bones) as a result of the altercation, while Mr. Lipscomb only sustained a
bruised finger. Finally, the surveillance video also shows that Mr. Drain’s conduct did not result
in a self-inflicted injury, nor was he intoxicated at the time of the altercation. Therefore, his claim
was properly held compensable.

         For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review
is affirmed.



                                                                                              Affirmed.
ISSUED: June 26, 2020


CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison



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