Melvin L. LAYNE
CRIST ELECTRICAL CONTRACTOR, INC. and Assurance Services Corporation.
[Copyrighted Material Omitted]
Monica Taylor Monday (Matthew W. Broughton; Gregory D. Habeeb; Robert E. Evans; Gentry Locke Rakes & Moore, Roanoke, on briefs), for appellant.
Christopher M. Kite (Lucas & Kite, PLC, Roanoke, on brief), for appellees.
Present: HUMPHREYS, BEALES and Senior Judge ANNUNZIATA, JJ.
[62 Va.App. 634] Melvin L. Layne (claimant) appeals a decision of the Virginia Workers' Compensation Commission affirming the deputy commissioner's denial of claimant's request for benefits on a finding that claimant willfully and knowingly violated a known [62 Va.App. 635] safety rule. Claimant cites three errors in his challenge to the commission's denial of his objection, motion to vacate, and motion to reconsider the March 20, 2013 review opinion:
a. The Full Commission, as composed for review of this case, lacked authority to review the Deputy Commissioner's Opinion as only two of the three statutorily authorized Commissioners decided it.
b. No statute authorized a retired Commissioner to participate in review of this decision, whether by designation or recall.
c. A majority of the statutorily authorized Commissioners did not reach a decision in this case; the Commission lacked a necessary quorum for a majority decision.
The threshold issue in this appeal that we address first concerns the commission's authority to review cases before it in the absence of three commissioners who are authorized by statute to participate in review proceedings. For the reasons that follow, we reverse the decision of the full commission and remand for further proceedings.
On January 19, 2009, claimant sustained injuries while employed with Crist Electrical Contractor, Inc. (employer) and he filed a claim with the commission. At a hearing on the claim, employer agreed that claimant suffered an injury during the course of his employment, but defended the claim under Code § 65.2-306 and argued claimant was barred from receiving benefits because claimant willfully violated a known safety rule.
[62 Va.App. 636] On August 24, 2011, a deputy commissioner denied claimant's request for benefits, finding that employer's safety procedure was reasonable, that claimant had knowledge of the procedure, and that claimant willfully and knowingly failed to follow ...