COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray Argued at Norfolk, Virginia
KEITH W. HOBAN MEMORANDUM OPINION * BY v. Record No. 2236-94-1 JUDGE JERE M. H. WILLIS, JR. NOVEMBER 7, 1995 VIRGINIA WORKERS' COMPENSATION COMMISSION, DIVISION OF CRIME VICTIMS' COMPENSATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION DeRonda M. Short (Short, Short, Telstad & Kerr, P.C., on brief), for appellant.
Cheryl A. Wilkerson, Assistant Attorney General (James S. Gilmore, III, Attorney General; John J. Beall, Jr., Senior Assistant Attorney General, on brief), for appellee.
The commission denied Hoban's claim for an award under the
Crime Victims' Compensation Act, Code § 19.2-368.1, et seq.,
because it found that he contributed to the infliction of his
injuries. Code § 19.2-368.12(C). Hoban contends (1) that the
commission erred in failing to make specific findings of fact,
(2) that the commission's decision was not supported by credible
evidence, and (3) that the commission committed reversible error
in failing to proceed according to the analysis in Jennings v. Victims' Compensation Fund, 5 Va. App. 536, 365 S.E.2d 241
(1988). We disagree and affirm the decision of the commission.
"Decisions of the commission as to questions of fact, if
supported by credible evidence are conclusive and binding on this * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Court." Manassas Ice and Fuel Co. v. Farrar, 13 Va. App. 227,
229, 409 S.E.2d 824, 826 (1991). "The fact that contrary
evidence may be in the record is of no consequence if there is
credible evidence to support the commission's findings." Russell
Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826
(1986).
On March 6, 1993, Hoban was at Greg White's birthday party.
Timothy Hux, an ex-employee of Hoban's, also attended. Shortly
after their arrival, Hux and Hoban became involved in a
disagreement. Hoban asked Hux to take their disagreement
outside. Hoban open-handedly smacked Hux in the face. Other
people at the party broke up the fight. Later in the evening, Hoban and Hux encountered one another
in White's driveway. Hoban told Officer Hostler that he was
standing outside to get some fresh air. I noticed Tim and someone else walking down the street. I hollered at him and said, "Tim, come here a minute," and I started toward them.
My intentions were to tell him that there was no reason to act like this at someone's [sic] birthday party.
He was standing at the end of the driveway, he didn't answer me. I tapped him on the shoulder and said, "Tim," at that time I felt a pain in my side.
Hux had stabbed Hoban. Hoban required emergency surgery to
remove part of his small intestine. Hux was convicted of
malicious wounding.
On July 26, 1993, Hoban filed a claim pursuant to Code
- 2 - § 19.2-368.1, seeking compensation for his medical bills for
which he had no insurance and for his loss of income. On
November 29, 1993, the Director of the Division of Crime Victims'
Compensation denied Hoban's claim. He found that Hoban had
contributed to the infliction of his injuries because he was
involved in a mutual combat situation and he was under the
influence of alcohol. Hoban requested review of the denial.
On April 8, 1994, a deputy commissioner conducted an
evidentiary hearing and reported that Hoban had not contributed
to the infliction of his injuries. On August 1, 1994, the
director reviewed Hoban's claim and the hearing record and
reaffirmed his initial denial. The director cited specifically
two contradictions in Hoban's testimony. First, Hoban testified
that he had one drink at the party, yet his blood alcohol level
was .229% when he was admitted to the hospital. Second, Hoban
told Officer Hostler, in his statement after his release from the
hospital, that he approached Hux and Hux stabbed him, but at the
hearing, Hoban testified that Hux bumped into him from behind and
stabbed him. Both statements were contradicted by Anna Reid, who
testified that she witnessed the stabbing from her living room
window across the street. She testified that Hoban was walking
down the driveway when two men approached him from behind. She
saw one man go to a parked car and retrieve something from under
the seat. He then joined Hoban and Hux. A few minutes later,
she saw Hoban fall to the ground and the two men ran off.
- 3 - On review, the commission affirmed the decision of the
director finding that Hoban contributed to the infliction of his
injuries. Code § 19.2-368.8 provides review by this Court.
Hoban first contends that the commission erred in failing to
make specific findings of fact. We find no statutory requirement
imposing such a duty on the commission. Code § 19.2-368.7
requires that the commission "review the record and affirm or
modify the decision of the person to whom the claim was
assigned." The commission performed this duty when it
"affirm[ed] the Director's decision and [found] that the claimant
contributed to the infliction of his injuries to the extent that
no award can be entered." Hoban next contends that the commission's decision is not
supported by credible evidence. We disagree. The record
discloses that although bad blood existed between Hoban and Hux,
Hoban confronted Hux under circumstances involving the
consumption of alcohol and intoxication, engaged in an argument
with Hux, smacked Hux in the face, and later approached Hux
outside and laid his hand upon Hux's shoulder. It was then that
Hux stabbed Hoban. These circumstances sufficiently demonstrate
an efficiently contributory chain of causation flowing from the
initial confrontation to the ultimate stabbing of Hoban by Hux.
This evidence supports the commission's determination.
Finally, Hoban contends that the commission failed to
proceed properly in the determination of his claim. We find no
- 4 - error in the commission's handling of the claim.
First, Hoban contends that the commission failed to
determine his eligibility as a victim as required by Code
§ 19.2-368.4 and Jennings v. Victims' Compensation Fund, 5 Va.
App. 536, 365 S.E.2d 241 (1988). We find this contention without
merit. The commission's consideration of Hoban's contributory
conduct as requiring denial of his claim, pursuant to Code
§ 19.2-368.12(C), necessarily implies a finding that he was
otherwise an eligible victim under Code § 19.2-368.4. Second, Hoban contends that because the director did not
summarily grant him an award, an evidentiary hearing was required
before the director's initial denial of his claim. We do not so
read the statute. Although Code § 19.2-368.6(D) authorizes a
summary award, it does not forbid the denial of a claim without
an evidentiary hearing. Rather, the statute provides, in
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COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray Argued at Norfolk, Virginia
KEITH W. HOBAN MEMORANDUM OPINION * BY v. Record No. 2236-94-1 JUDGE JERE M. H. WILLIS, JR. NOVEMBER 7, 1995 VIRGINIA WORKERS' COMPENSATION COMMISSION, DIVISION OF CRIME VICTIMS' COMPENSATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION DeRonda M. Short (Short, Short, Telstad & Kerr, P.C., on brief), for appellant.
Cheryl A. Wilkerson, Assistant Attorney General (James S. Gilmore, III, Attorney General; John J. Beall, Jr., Senior Assistant Attorney General, on brief), for appellee.
The commission denied Hoban's claim for an award under the
Crime Victims' Compensation Act, Code § 19.2-368.1, et seq.,
because it found that he contributed to the infliction of his
injuries. Code § 19.2-368.12(C). Hoban contends (1) that the
commission erred in failing to make specific findings of fact,
(2) that the commission's decision was not supported by credible
evidence, and (3) that the commission committed reversible error
in failing to proceed according to the analysis in Jennings v. Victims' Compensation Fund, 5 Va. App. 536, 365 S.E.2d 241
(1988). We disagree and affirm the decision of the commission.
"Decisions of the commission as to questions of fact, if
supported by credible evidence are conclusive and binding on this * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Court." Manassas Ice and Fuel Co. v. Farrar, 13 Va. App. 227,
229, 409 S.E.2d 824, 826 (1991). "The fact that contrary
evidence may be in the record is of no consequence if there is
credible evidence to support the commission's findings." Russell
Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826
(1986).
On March 6, 1993, Hoban was at Greg White's birthday party.
Timothy Hux, an ex-employee of Hoban's, also attended. Shortly
after their arrival, Hux and Hoban became involved in a
disagreement. Hoban asked Hux to take their disagreement
outside. Hoban open-handedly smacked Hux in the face. Other
people at the party broke up the fight. Later in the evening, Hoban and Hux encountered one another
in White's driveway. Hoban told Officer Hostler that he was
standing outside to get some fresh air. I noticed Tim and someone else walking down the street. I hollered at him and said, "Tim, come here a minute," and I started toward them.
My intentions were to tell him that there was no reason to act like this at someone's [sic] birthday party.
He was standing at the end of the driveway, he didn't answer me. I tapped him on the shoulder and said, "Tim," at that time I felt a pain in my side.
Hux had stabbed Hoban. Hoban required emergency surgery to
remove part of his small intestine. Hux was convicted of
malicious wounding.
On July 26, 1993, Hoban filed a claim pursuant to Code
- 2 - § 19.2-368.1, seeking compensation for his medical bills for
which he had no insurance and for his loss of income. On
November 29, 1993, the Director of the Division of Crime Victims'
Compensation denied Hoban's claim. He found that Hoban had
contributed to the infliction of his injuries because he was
involved in a mutual combat situation and he was under the
influence of alcohol. Hoban requested review of the denial.
On April 8, 1994, a deputy commissioner conducted an
evidentiary hearing and reported that Hoban had not contributed
to the infliction of his injuries. On August 1, 1994, the
director reviewed Hoban's claim and the hearing record and
reaffirmed his initial denial. The director cited specifically
two contradictions in Hoban's testimony. First, Hoban testified
that he had one drink at the party, yet his blood alcohol level
was .229% when he was admitted to the hospital. Second, Hoban
told Officer Hostler, in his statement after his release from the
hospital, that he approached Hux and Hux stabbed him, but at the
hearing, Hoban testified that Hux bumped into him from behind and
stabbed him. Both statements were contradicted by Anna Reid, who
testified that she witnessed the stabbing from her living room
window across the street. She testified that Hoban was walking
down the driveway when two men approached him from behind. She
saw one man go to a parked car and retrieve something from under
the seat. He then joined Hoban and Hux. A few minutes later,
she saw Hoban fall to the ground and the two men ran off.
- 3 - On review, the commission affirmed the decision of the
director finding that Hoban contributed to the infliction of his
injuries. Code § 19.2-368.8 provides review by this Court.
Hoban first contends that the commission erred in failing to
make specific findings of fact. We find no statutory requirement
imposing such a duty on the commission. Code § 19.2-368.7
requires that the commission "review the record and affirm or
modify the decision of the person to whom the claim was
assigned." The commission performed this duty when it
"affirm[ed] the Director's decision and [found] that the claimant
contributed to the infliction of his injuries to the extent that
no award can be entered." Hoban next contends that the commission's decision is not
supported by credible evidence. We disagree. The record
discloses that although bad blood existed between Hoban and Hux,
Hoban confronted Hux under circumstances involving the
consumption of alcohol and intoxication, engaged in an argument
with Hux, smacked Hux in the face, and later approached Hux
outside and laid his hand upon Hux's shoulder. It was then that
Hux stabbed Hoban. These circumstances sufficiently demonstrate
an efficiently contributory chain of causation flowing from the
initial confrontation to the ultimate stabbing of Hoban by Hux.
This evidence supports the commission's determination.
Finally, Hoban contends that the commission failed to
proceed properly in the determination of his claim. We find no
- 4 - error in the commission's handling of the claim.
First, Hoban contends that the commission failed to
determine his eligibility as a victim as required by Code
§ 19.2-368.4 and Jennings v. Victims' Compensation Fund, 5 Va.
App. 536, 365 S.E.2d 241 (1988). We find this contention without
merit. The commission's consideration of Hoban's contributory
conduct as requiring denial of his claim, pursuant to Code
§ 19.2-368.12(C), necessarily implies a finding that he was
otherwise an eligible victim under Code § 19.2-368.4. Second, Hoban contends that because the director did not
summarily grant him an award, an evidentiary hearing was required
before the director's initial denial of his claim. We do not so
read the statute. Although Code § 19.2-368.6(D) authorizes a
summary award, it does not forbid the denial of a claim without
an evidentiary hearing. Rather, the statute provides, in
pertinent part: If [the investigator] is unable to decide the claim, upon the basis of the said papers and report, he shall order a hearing.
Furthermore, Hoban was afforded an evidentiary hearing prior to a
final decision being made on his claim.
Third, Hoban contends that Code § 19.2-368.5(D) required
abatement of all proceedings on his claim until the conclusion of
Hux's prosecution. The statute provides for deferral of all proceedings under this Chapter until such time as such criminal prosecution has been concluded in the circuit court unless notification is received from the attorney for the Commonwealth that no objection is made to a continuation of the investigation and
- 5 - determination of the claim.
Plainly, the purpose of this statute is to prevent interference
in the criminal prosecution by the commission's investigation.
While the record contains no express authorization by the
Commonwealth's Attorney to proceedings on Hoban's claim going
forward, neither does anything in the record suggest a refusal by
the Commonwealth's Attorney to have the investigation proceed or
that the pendency of the criminal prosecution in any way impeded
the proper handling of Hoban's claim. Furthermore, Hoban demonstrates no prejudice resulting from
the commission's failure to comply with this alleged requirement.
Only the director's initial denial of the claim preceded Hux's
December 13, 1993 conviction. The evidentiary hearing, the
director's review and reaffirmation of his decision, and the full
commission's review were all conducted subsequent to Hux's
conviction, taking that conviction into account. Assuming,
without deciding, that the director acted contrary to the statute
in making his initial decision during the pendency of Hux's
criminal prosecution, nothing in the record suggests any
resulting prejudice to Hoban.
For the foregoing reasons, we affirm the judgment of the
commission.
Affirmed.
- 6 -