Virginia Top Cases

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Virginia Commission Has Broad Discretion in Making Factual Findings Related to "Hazard of Employment."  Murphy-Brown, LLC v. Budnick, 2009 Va. App. LEXIS 171 (April 14, 2009).  Appellants, employer and insurer (jointly the employer), appealed a decision by the Virginia Workers' Compensation Commission that awarded temporary total disability and medical benefits to appellee claimant; the employer claimed that the Commission erroneously credited the testimony of a police officer rather than that of the claimant regarding the claimant's injury, and in finding that the claimant sustained a compensable injury by accident.  As a result of a motor vehicle accident in North Carolina , the claimant, who was employed as a truck driver by the employer, sustained a traumatic brain injury that impaired his ability to communicate. Through an interpreter, the claimant testified that he hit a pothole and that he lost control of the vehicle. A police officer investigating the accident determined that a tire on the tractor-trailer had ruptured; however, the officer did not believe the road conditions played any part in the accident. The court found that, contrary to the employer's contention, the claimant did not testify that hitting a pothole caused him to lose control. Because the testimony of the claimant and the officer was not contradictory, there was no merit to the employer's contention that the Commission was bound to accept only the claimant's testimony regarding the cause of the accident. In addition, the Commission did not err in finding that the claimant proved by a preponderance of the evidence the accident was attributable to a hazard of his employment. Therefore, the employer's appeal was without merit.  The decision was summarily affirmed. See generally Larson’s Workers’ Compensation Law § 130.05.

Change of Physician Allowed Where Claimant Moves 85 Miles Away.  Allen v. Wright's Buick, Inc., 2009 Va. App. LEXIS 110 (March 17, 2009).  Appellant claimant appealed an order by the Virginia Workers' Compensation Commission that required him to choose a new treating physician; the claimant argued that the Commission abused its discretion in ordering the change.  After the claimant sustained a compensable injury by accident that resulted in a neck strain, a right shoulder injury, and depression, he was treated by an anesthesiologist and pain management specialist. The treatment consisted of physical therapy and prescription medications for pain management and depression. The employer filed an application seeking a change in the treating physician after defendant moved to a city 85.62 miles away. The court found credible evidence that the commute from the claimant's home to the doctor's office caused stress, depression, and muscle spasms, which were detrimental to the claimant's condition and treatment. There was no evidence that the treating physician provided any specialized treatment or treated a complicated condition. Accordingly, the Commission's decision ordering a change in the claimant's treating physician to a physician located closer to his home was entirely reasonable and not an abuse of discretion.  The order was affirmed.  See generally Larson’s Workers’ Compensation Law § 94.02.

Court Affirms Decision That Injured Worker Failed to Market His Work Capacity.  Strickland v. Jones Bros., 2009 Va. App. LEXIS 77 (February 17, 2009).  Appellant employee challenged an order of the Virginia Workers' Compensation Commission, which found that he failed to market his residual work capacity after he sustained an injury during the course of his employment with appellee employer.  The employee worked as a foreman/supervisor for the employer, which installed gas, water, and sewer pipelines. He injured his lower back and was restricted to light duty. The deputy commissioner found that the employee did not meet his burden of establishing that he made reasonable efforts to market his residual work capacity. The Commission affirmed the deputy's findings. The court of appeals held that the evidence supported the fact found by the Commission that the employee failed to show that he made a reasonable effort to market his remaining work capacity. The employee's disability was self-defined. Although two doctors limited the employee to "light duty" or "sedentary work," the Commission nonetheless found that the employee's restrictions were not documented by his treating physician. The employee's job search lacked documentation. The employee would approach construction companies and advise them of his "restrictions." The employee acknowledged that he never had an interview where the job duties were compatible with his "restrictions." The hard evidence was that the employee applied for positions he, himself, thought he could not perform.  The court of appeals affirmed the decision of the Commission.  See generally Larson’s Workers’ Compensation Law § 84.01.

No Commission Ruling Allowed Where Commission Comprised of Only Two Statutorily Authorized Members.  Hitt Constr. v. Pratt, 53 Va. App. 422; 672 S.E.2d 904; 2009 Va. App. LEXIS 76 (February 17, 2009).  Appellant employer challenged a decision of respondent, the Virginia Workers' Compensation Commission, which awarded respondent claimant permanent partial disability benefits. The employer filed a motion to reconsider and vacate the award, pursuant to Va. Code Ann. § 65.2-200, asserting the Commission lacked jurisdiction, which motion was denied.  The employer asserted that the Commission lacked authority to review the appeal from the decision because, at the time of that review, the Commission was composed of only two statutorily authorized commissioners. The employer also asserted that the Commission erred in that review in concluding that the claimant suffered a permanent impairment causally related to the industrial accident. The court did not address the issue of the impairment challenge upon finding that the challenge to the jurisdiction of the Commission was dispositive of the matter. The court held that without three members, the Commission was subject to a challenge to its authority to decide cases before it. The court noted that the challenge to the Commission's authority was not waived by the employer since the issue was raised in its motion to reconsider and vacate the award. The court held that the Commission simply lacked authority to hear the review requested by the employer due to failing to have three statutorily members present at the time it rendered its decision.  The court reversed the decision and remanded the case to a properly constituted Commission for review.  See generally Larson’s Workers’ Compensation Law § 124.02.

Presence of Methadone Held Insufficient to Disqualify Claimant's Benefits.  Dominion Coal Corp. v. Bowman, 53 Va. App. 367; 672 S.E.2d 122; 2009 Va. App. LEXIS 55 (February 10, 2009).  A claimant filed a formal workers' compensation claim seeking compensation for wage loss and medical benefits. An employer filed a notice of misconduct defense, which the commissioner rejected. A deputy commissioner awarded the claimant benefits. On appeal, the full Virginia Workers' Compensation Commission affirmed the commissioner's decision. The employer appealed.  The claimant was injured when a machine fell on his leg at work. He was taken to the hospital for treatment, where he was drug tested. The test was positive for methadone. The employer filed a notice of misconduct defense, based on the positive methadone test, alleging that the claim was barred by Va. Code Ann. § 65.2-306(A)(6). The deputy commissioner found that the defense was barred by the statute of limitations. On appeal, the employer argued that the Commission erred in rejecting its willful misconduct defense. Even assuming that the employer was entitled to the benefit of a rebuttable presumption that the claimant's methadone caused his accident, the appellate court upheld the Commission's decision, based on the Commission's factual finding that the claimant's methadone use was not the cause of the accident. The Commission expressly found that the claimant's use of methadone did not, in fact, cause or contribute to the falling machine. The director of the medical clinic where the claimant received methadone explained that the medication was administered in a structured program, under a doctor's supervision, and would not have interfered with a patient's normal activities.  The judgment of the Commission was affirmed.  See generally Larson’s Workers’ Compensation Law § 36.03.

Food Lion, LLC v. Wright, 2008 Va. App. LEXIS 522 (December 2, 2008).  Appellant employer appealed a decision by the Virginia Workers' Compensation Commission that ordered it to provide a new panel of three orthopedic specialists; the employer claimed that the Commission erroneously failed to apply the course-of-treatment doctrine, which forbade an employee from changing his treating physician without a reasonable justification.  The employee, a teenager working at a grocery store, fell at work and sustained injuries to his chin, elbows, and wrists. He initially received medical care from a family practitioner who sutured his chin and recommended that the employee see an orthopedic specialist. The employer's claims adjuster provided a panel of three physicians, which included two orthopedic surgeons and a plastic surgeon. The adjuster agreed in advance to accept a change of physician if the employee or his mother became dissatisfied with the treating physician's care. When the mother became dissatisfied with the treating physician's care and demeanor. the employee filed a motion requesting a replacement panel of physicians. The court found that the employer's claims adjuster agreed in advance to accept a change of physician if the employee or his mother became dissatisfied with the treating physician's care. The adjuster placed no time limitation on this open-ended offer. Because the employer's unqualified offer authorized the employee to change his treating physician at his election, the Commission did not err in requiring the employer to stand by that representation.  The decision was affirmed.  See generally Larson’s Workers’ Compensation Law § 94.02.

Travelers Prop. Cas. Co. of Am. v. Ely, 276 Va. 339; 666 S.E.2d 523; 2008 Va. LEXIS 98 (September 12, 2008).  Employees in two separate proceedings filed benefit claims with the Virginia Workers' Compensation Commission. The Commission, in both proceedings, determined that insurance policies issued by an insurer to the employees' employers were in effect and that the insurer was responsible for the payment of benefits to the employees. The Court of Appeals of Virginia affirmed the decisions. The insurer appealed. On appeal, the claims were consolidated.  The insurer issued workers' compensation and employers' liability insurance policies to two employers. The insurer offered to renew the policies but the employers did not pay the insurance premiums that were required to renew the policies. The insurer thus argued that the insurance policies that it issued to the employers expired when the employers failed to pay the premiums and renew the policies. The insurer therefore asserted that, pursuant to Code § 65.2-804(B), the insurer had no statutory obligation to notify the Virginia Workers' Compensation Commission that the insurance policies had expired because the insurance policies were not cancelled or non-renewed by the insurer within the meaning of Code § 65.2-804(B). On appeal, the court found that the insurer was not required to comply with the notice provisions contained in Code § 65.2-804(B) because the insurance policies that were the subject of the appeal were not non-renewed by the insurer. Thus, the insurance policies were not in effect when the employees were injured.  The judgments of the intermediate appellate court were reversed, and final judgments were entered in favor of the insurer.  See generally Larson’s Workers’ Compensation Law § 150.03.

Mount Vernon Hosp. v. Devers, 2008 Va. App. LEXIS 494 (November 4, 2008).  Appellants, an employer and its insurer (employer), sought review of a decision of the Workers' Compensation Commission (Virginia), which awarded appellee claimant permanent total disability benefits.  The claimant had initially made a claim for a work-related injury to her right arm in 1994. The claimant's treating physician for over 10 years testified that the reflex sympathetic dystrophy (RSD) in the claimant's right arm had spread to the left arm and that the need for the claimant's later C6-7 disc surgery was created by the initial right arm injury and the related C5-6 surgery. The employer had agreed to a 60% loss-of-use rating for the right arm and to a 15% rating for the left arm but not to an adjusted disability rating of 40% for the left arm. The employer asserted that the Commission's decision was not supported by sufficient credible evidence. On appeal, the court affirmed. While a videotape of the claimant indicated that she could possibly do more than she indicated, such as shopping alone at a grocery store, any exaggeration of the extent of the effect of her injury on her ability to perform everyday functions did not discredit the other evidence supporting her claim. The statute of limitations that applied was Va. Code Ann. § 65.2-708, which related to a claim based on a change of condition, rather than Va. Code Ann. § 65.2-601, which related to original claims.  The court affirmed the Commission's decision.  See generally Larson’s Workers’ Compensation Law § 131.03.

Haussmann v. University of Va. Hospital, 2008 Va. App. LEXIS 426 (September 23, 2008).  Claimant appealed a decision by the Virginia Workers' Compensation Commission that found, inter alia, her asthma was not compensable.  A deputy commissioner allowed the claimant to proceed under both accident and disease theories, although the claimant provided no specific date. The deputy commissioner took cognizance of appellee employer's defenses of no compensable injury by accident and no compensable occupational disease or ordinary disease of life, and then implicitly rejected the claim as a compensable injury by accident. The full Commission noted the claimant's assertion that she did not understand the proceedings and the scope of the evidence that was presented and could have been presented had she understood, and then denied the claim. The court found that the claimant did not file a timely motion for rehearing or reconsideration to request a rehearing on her accident theory. In any event, the Commission considered that theory and implicitly rejected it. Furthermore, it could not be said as a matter of law that the claimant's evidence sustained her burden of proving a compensable injury by accident. Therefore, she was not entitled to workers' compensation benefits.  The decision was summarily affirmed.  See generally Larson’s Workers’ Compensation Law § 50.01, 50.06, 52.06.

Kohut v. Piedmont Reg'l Educ. Program, 2008 Va. App. LEXIS 420 (September 16, 2008).  Employee appealed a decision by the Virginia Workers' Compensation Commission that denied her claim for an award of compensation benefits; the employee claimed that she presented evidence of medical causation for her disability and that she adequately marketed her residual capacity during the requested periods.  The court found that the employee presented no argument and cited no authorities in support of her first question, regarding medical causation for her disability, as required by Va. Sup. Ct. R. 5A:20(e). Rather, the entirety of her argument related to whether she adequately and reasonably marketed her residual work capacity. Because her failure to comply with Rule 5A:20(e) was significant, the first question was waived and did not have to be considered. With respect to the second question, after reviewing the record and the commission's opinion, the court found that the appeal was without merit.  The decision was summarily affirmed.  See generally Larson’s Workers’ Compensation Law § 124.08.

Euro Composites Corp. v. William Frederick Lekebusch, 2008 Va. App. LEXIS 423 (September 16, 2008).  Appellants, employer and its insurer (jointly the employer), appealed a decision by the Virginia Workers' Compensation Commission finding that appellee claimant proved his cervical surgery was causally related to his compensable injury by accident, and that the employer was responsible for the costs of that surgery and related treatment.  The court reviewed the record and the commission's opinion and found that the employer's appeal was without merit. It dispensed with oral argument because the facts and legal contentions were adequately presented in the materials before it and, pursuant to Va. Code § 17.1-403 and Va. Sup. Ct. R. 5A:27, argument would not aid the decisional process. The deputy com-missioner's findings that the claimant sustained a contusion and swelling to his left hand and that he sustained an obvious, sudden structural or mechanical change to his cervical spine as a result of his compensable injury by accident was not appealed to the full commission, and, were, therefore, not before the court on appeal. The full commission's opinion rested solely on its determination that the claimant proved a causal connection existed between his cervical surgery and his compensable injury by accident. The employer failed to provide the commission with an opportunity to correct any perceived error. Consequently, Va. Sup. Ct. R. 5A:18 barred consideration of the question for the first time on appeal.  The decision was summarily affirmed, the claimant's request for an award of costs, expenses, and attorney's fees was denied, and the case was remanded to the commission for the sole purpose of considering the claimant's request for interest. See generally Larson’s Workers’ Compensation Law § 124.08.

Brown v. TJ Enters., 2008 Va. App. LEXIS 404 (August 26, 2008).  Appellant claimant appealed a decision by the Workers' Compensation Commission (Virginia) that denied her claims seeking payment for medical treatment.  The appellate court reviewed the record and the Commission's opinion and found that the claimant's appeal was without merit. The treatment by the first doctor was barred by the doctrine of res judicata. The treatment by a second doctor resulted from the unauthorized referral by the first doctor and pertained to the non-compensable testing for, and symptoms of, multiple sclerosis or a demyelinating disease. Finally, the claimant failed to sustain her burden of proving such treatment was causally related to her compensable injury by accident. Accordingly, the claims filed by the claimant seeking payment for medical treatment were properly denied.  The decision was summarily affirmed.  See generally Larson’s Workers’ Compensation Law § 130.03.

Hospira Worldwide, Inc. v. Cook, 2008 Va. App. LEXIS 396 (August 19, 2008).  Appellants, an employer and its insurer (employer), appealed a decision of the Virginia Workers' Compensation Commission awarding medical benefits to appellee workers' compensation benefits claimant and finding she sustained an injury by accident arising out of and in the course of her employment, and a back injury causally related to that accident.  The appellate court summarily affirmed the decision. Before the Commission, the employer challenged the findings that the claimant sustained a compensable injury by accident to her lower back arising out of her employment, and that her lower back symptoms were causally related to that incident. The employer argued that the claimant failed to prove a causal relationship between her lower back symptoms and her work accident, in light of her pre-existing degenerative disease and lower back pain. Thus, the employer contended that the claimant failed to prove the incident materially aggravated her pre-existing symptoms. The employer did not specifically limit its causation argument to the period after March 15, 2006, until it appealed to the appellate court. The deputy commissioner's findings regarding causation were affirmed by the Commission. The Commission considered the employer's general causation argument, and found that the claimant's treating physicians related her back pain to lifting boxes at work. It discounted a doctor's opinion that there was no causal connection between the claimant's MRI findings and her employment. The findings applied to the post March 15, 2006 period.  The judgment was affirmed.  See generally Larson’s Workers’ Compensation Law § 130.05.

Dillon v. Auto Truck Transp. & Zurich Am. Ins. Co., 2008 Va. App. LEXIS 390 (August 12, 2008).  Claimant employee appealed a decision by the Virginia Workers' Compensation Commission that affirmed a deputy commissioner's determination that, inter alia, denied the employee's claim for temporary total disability benefits, refused to reinstate the award, and terminated an outstanding award.  The deputy commissioner found that the employee's testimony was not credible. He denied the employee's claims for mileage, except as stipulated, for temporary total disability benefits from May 8, 2004 through May 17, 2004, for additional evaluation or treatment by a doctor, and for an eye injury as a compensable consequence of his May 8, 2004 injury. The deputy commission also found that the employee effectively refused medical treatment by another doctor on May 24, 2007, but that he cured that refusal on June 26, 2007. The deputy commissioner refused to reinstate the employee's award because he returned to work without reporting wages as required by Va. Code Ann. § 65.2-712, and terminated the employee's July 9, 2004 outstanding award, with modification of the termination effective date from June 6, 2004, inclusive, to June 6, 2007, inclusive. The court reviewed the record and the Commission's opinion and found that the employee's appeal was without merit. Accordingly, it would summarily affirm for the reasons stated by the Commission in its final opinion.  See generally Larson’s Workers’ Compensation Law § 130.03.

Herbert Clements & Sons, Inc. v. Harris, 52 Va. App. 447; 663 S.E.2d 564; 2008 Va. App. LEXIS 362 (July 29, 2008).  Appellants, an employer and its workers' compensation carrier (employer), appealed an opinion of the Virginia Workers' Compensation Commission, which reversed a deputy commissioner's opinion and awarded appellee workers' compensation claimant benefits for pain medication and a right shoulder arthroscopy due to his shoulder injury, and rein-stated the claimant's temporary total disability benefits.  The appellate court held that evidence that the claimant's shoulder condition was caused by his injury included office notes by his treating physicians, which identified bilateral shoulder pain, post-traumatic, associated with the claimant's worker's compensation injury. As the claimant's shoulder condition was causally related to his compensable injury, the first element of a possible causal relationship was met. A treating physician recommended the right shoulder arthroscopy, and the employer was responsible for its cost. The claimant's pre-injury employment as a plumbing repair mechanic entailed strenuous manual labor. A physical therapist who administered a functional capacities evaluation found that the claimant was not able to perform his essential job tasks. A treating physician stated that the claimant did not feel he was ready or able to return to his pre-injury work without restrictions. An independent medical examiner deferred to the treating physician's opinion of the claimant's work restrictions. A treating physician had not released the claimant to pre-injury employment. The employer did not show that the claimant was able to perform his pre-injury employment.  The Commission's opinion was affirmed.  See generally Larson’s Workers’ Compensation Law § 84.02.

City of Norfolk Sch. Bd. v. Mitchell, 2008 Va. App. LEXIS 334 (July 22, 2008).  Appellant employer appealed a decision by the Workers' Compensation Com-mission ( Virginia ) that awarded benefits to appellee employee; the employer claimed, inter alia, that the full Commission erred in ruling that a deputy commissioner found the employee was not terminated for cause.  The appellate court noted that while the employer asserted on appeal that the Commission erred in holding that the deputy commissioner found no termination for cause, it failed to assert a "termination for cause" objection upon its appeal to the full Commission. The full Commission noted the employer's error in that regard. As the issue of termination for cause was never appealed to the full Commission, pursuant to Va. Sup. Ct. R. 5A:18, it could not be considered on appeal. Thus, based on the finding that the employee was not terminated for cause, the employer's related assignment of error that presumed the employee was terminated for cause could not be considered. The employer's arguments on appeal were defaulted.  The decision was affirmed.  See generally Larson’s Workers’ Compensation Law § 124.08, 130.01.