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An employee who suffered fractures of his left eye, nose and ankle and a dislocated shoulder at the hands of his supervisor is entitled to workers compensation, the West Virginia Supreme Court ruled.
In Jason Lipscomb Builders LLC v. Drain, West Virginia’s high court unanimously affirmed Friday the decision of the state’s Office of Judges that the injured worker had not been the aggressor and should be granted compensation for his injuries.
On July 13, 2017, a law enforcement officer responded to the report of an altercation at the offices of Jason Lipscomb Builders LLC in Parkersburg, West Virginia.
According to the lawsuit, Donald Drain reported to the officer that his supervisor, Jason Lipscomb, had punched him, knocked him down and kicked him. Mr. Lipscomb alleged that after he and Mr. Drain had a verbal altercation over the unloading of a pipe at a worksite that Mr. Drain grabbed him, which led him to punch his employee in self-defense.
Mr. Lipscomb’s son, also an employee, said in a statement that when his father felt safe from Mr. Drain, he stopped attacking him. Another employee said in a written statement that Mr. Drain shoved Mr. Lipscomb after the verbal spat. A truck driver also present during the fight testified that Mr. Lipscomb was the aggressor and “beat the hell” out of his employee.
Mr. Drain filed a workers compensation claim and an independent medical examiner found that he had suffered a left shoulder dislocation, right ankle fracture, nose fracture and fracture of his left eye socket.
A claims administrator rejected Mr. Drain’s workers comp claim, but the West Virginia Office of Judges reversed the decision. The company appealed, but the Virginia Supreme Court affirmed the Office of Judges’ decision.
The Supreme Court said the evidence indicated that the fight between the two men originated at work over the unloading of a pipe and that Mr. Drain was not the aggressor. The court noted that surveillance video showed Mr. Lipscomb rapidly approach Mr. Drain and grab hold of his body. While the rest of the fight was obscured from view, Mr. Lipscomb’s son was observed trying to pull his father off of Mr. Drain, the court said.
The court also noted that medical evidence supported Mr. Drain’s version of events, and that his injuries were consistent with one being punched and kicked repeatedly while on the ground, entitling him to workers compensation.