REVIEW on the record by Commissioner Williams, Commissioner Marshall and Commissioner Newman at Richmond, Virginia.

Transcription

1 VIRGINIA: IN THE WORKERS COMPENSATION COMMISSION CHARLES NATT, III, Claimant v. JCN VA Opinion by MARSHALL Commissioner Aug. 22, 2013 FRONT ROYAL, TOWN OF, Employer VML INSURANCE PROGRAMS, Insurer Craig A. Brown, Esquire 1 George L. Townsend, Esquire For the Claimant. William S. Sands, Jr., Esquire For the Defendants. REVIEW on the record by Commissioner Williams, Commissioner Marshall and Commissioner Newman at Richmond, Virginia. The claimant requests review of the Deputy Commissioner s September 5, 2012 Opinion finding he failed to prove a back injury in addition to the agreed left ankle injury resulting from the June 1, 2010 accident, finding he failed to market his residual work capacity adequately after May 10, 2012, and denying his claim for temporary partial disability benefits beginning May 11, 2012 and continuing. We AFFIRM in part and REVERSE in part. 2 I. Material Proceedings The claimant sustained a compensable left ankle injury on June 1, The employer accepted the injury as compensable. Pursuant to the parties agreement, the Commission entered 1 Craig A. Brown, Esquire represented the claimant at hearing. By Order dated March 14, 2013, George L. Townsend, Esquire was substituted as counsel of record for the claimant. 2 Considering the issues involved and the complete record developed at the hearing and before the Commission, we find oral argument is unnecessary and would not be beneficial in this case. Va. Workers Comp. R. 3.4; see Barnes v. Wise Fashions, 16 Va. App. 108, 112, 428 S.E.2d 301, 303 (1993).

2 a February 17, 2011 Award Order providing for temporary total disability benefits from June 2, 2010 through August 8, 2010, at a rate of $ per week, based upon the claimant s preinjury average weekly wage of $493.74, temporary partial disability benefits at the weekly rate of $139.16, and a medical award for the left ankle injury. The claimant s November 17, 2011, April 24, 2012, May 1, 2012, and May 25, 2012 claims alleged an injury by accident to his back on June 1, 2010 and sought temporary total disability benefits for March 29, 2012, from April 11, 2012 through April 24, 2012, from April 26, 2012 through May 10, 2012 and temporary partial disability benefits from May 11, 2012 and continuing, based upon a post-injury wage of $282. The claimant also sought a medical award for a back injury, including an MRI recommended by Dr. Zoller. At the June 18, 2012 hearing, the parties stipulated the claimant was totally disabled because of his left ankle injury from April 11, 2012 through April 24, The employer agreed to reinstate his personal leave used during this period. The claimant received full wages in lieu of compensation during this period, and the parties agreed the defendants were due a credit. The parties agreed that as of May 11, 2012, the left ankle injury prevented the claimant from performing his pre-injury work, and he was working for the employer earning $282 per week. The defendants denied there was an injury to the back during the June 2010 accident. If any back injury occurred, the defendants asserted it was minor, transient, and unrelated to the requested disability and medical benefits. The defendants denied the claimant had evidence of disability for March 29, 2012, asserted the April 26, 2012 through May 10, 2012 period of disability was due to the back and unrelated to the compensable accident, and defended that the 2

3 claimant failed to market his residual work capacity while working light duty for the employer after May 11, The Deputy Commissioner found the claimant did not suffer a back injury during the June 1, 2010 accident. She found Dr. Zoller s September 15, 2010 note stating the claimant did not really have a history of back pain and that he had back pain ever since the accident was inaccurate. She found both statements inconsistent with the claimant s hearing testimony and the medical record as a whole. Because of the inaccurate history, the Deputy Commissioner did not credit Dr. Zoller s questionnaire response relating the back condition to the accident. She further noted that Dr. Seal, to whom his primary care doctor referred him, had an inaccurate history. She relied upon Dr. Wattenmaker s IME report which found the accident had not aggravated a preexisting condition and the back symptoms since June 1, 2010 were unrelated. The Deputy Commissioner denied the disability claim related to the back condition and the claim for temporary total disability for March 29, 2012, stating there was no medical evidence for disability that day. The Deputy Commissioner found the claimant failed to meet his burden of proving reasonable marketing after May 11, She recognized the claimant s restrictions were somewhat unique and stated she believed he had looked for work. The Deputy Commissioner found the marketing efforts insufficient, with no dates of contacts, numbers of contacts, evidence he looked for work at places with openings, or registration with the Virginia Employment Commission (VEC). She denied the temporary partial disability benefit claim beginning May 11, 2012 and continuing. 3

4 II. Summary of Evidence The claimant, age 24, testified he worked for the town s sanitation department right after he graduated from high school. On June 1, 2010, his left foot became trapped between the garbage truck tire and door, and he was thrown to the pavement, after which the truck rolled over his left ankle, breaking it badly. The claimant underwent ankle surgery by Dr. Zimet. After the surgery, he initially took high doses of prescribed pain medication intravenously which relieved his pain. Dr. Zimet changed his intravenous pain medications to oral medications, which were gradually tapered. When the claimant worked light duty sitting in a chair in August He noticed throbbing sharp pains in his back. The first day back at work, he had to leave work at midday due to back pain. The claimant began seeing Dr. Zoller in September 2010 for his back pain. Dr. Zoller was selected by Workers Comp. Once Dr. Zoller determined he had done all he could for the claimant, he referred him to pain management. Dr. Van Osten, a pain management physician, treated the claimant s lower lumbar area. The claimant had back pain before the accident that required medical treatment. Before the accident, he treated this pain at his family doctor s office, and the treatments relieved his back pain. Since the accident and his return to work, the claimant denied he was ever free from back pain. He described his back as swelling up with throbbing sharp pains. The claimant had discussed with Dr. Zimet how to live with his left ankle pain. He missed work on March 29, He called in sick because his left ankle was swollen and painful after he worked the previous day. He received a work note for March 29, 2012 from Dr. Zimet on April 3,

5 After the claimant missed two weeks in April 2012 because of his ankle, he tried to return to work on April 25, His back hurt and he needed injections. Dr. Van Osten issued a disability slip on April 26, 2012 releasing the claimant to light duty on April 27, 2012 for two weeks. When the claimant was released to return to light duty, he was allowed to work his regular job every other day with lighter duty on the other days, as required by his ankle injury. This was a permanent restriction. He works Monday, Wednesday, and Friday at his regular job. The claimant described his efforts to find work for Tuesdays and Thursdays. He asked his employer if he could drive the recycling truck, repair lids, or do office work, but the employer had not offered light duty. He had inquired at McDonald s, about mowing grass with a riding mower, at a distribution center, flagging traffic, and in maintenance at a heat and electrical place. He found job contacts in the newspaper and checked notice boards. The claimant had no home computer but owned a car. He phoned and physically visited the potential light duty employers. III. Findings of Fact and Rulings of Law A. Back injury The claimant required medical treatment for his pre-existing back condition three weeks before the compensable June 1, 2010 left ankle injury. He had a long history of low back pain, and it appears he was not forthcoming about this history with Dr. Seal or with Dr. Zoller, who treated his back after he returned to work in August 2010 and began to complain of back symptoms. We find the medical evidence does not preponderate that the claimant injured his back or aggravated a pre-existing back condition during the compensable accident. 5

6 B. Marketing In order to receive disability benefits, a partially disabled employee must prove he made reasonable efforts to market his residual earning capacity. National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34 (1989). What constitutes reasonable marketing effort depends on the facts and circumstances of each case. Greif Cos. v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). An employee must exercise reasonable diligence in seeking employment and the reasonableness of an employee s effort will be determined on a case by case basis, taking into account all of the facts and surrounding circumstances. Ford Motor Co. v. Favinger, 275 Va. 83, 89, 654 S.E.2d 575, 579 (2008)(citations omitted). Some of the criteria, however, that should be considered include: (1) the nature and extent of [the] employee's disability; (2) the employee's training, age, experience, and education; (3) the nature and extent of [the] employee's job search; (4) the employee's intent in conducting his job search; (5) the availability of jobs in the area suitable for the employee, considering his disability; and (6) any other matter affecting [the] employee's capacity to find suitable employment. National Linen Serv. v. McGuinn, 8 Va. App. at 272, 380 S.E.2d at 34 [(1989)] (footnotes omitted); accord Metropolitan Washington Airports Auth. v. Lusby, 41 Va. App. 300, 317, 585 S.E.2d 318, 326 (2003); Wall Street Deli [v. O Brien], 32 Va. App. at 220, 527 S.E.2d at 453 (2000). 275 Va. at 90, 654 S.E.2d at 579. After his release to light duty, the claimant worked his regular job as a sanitation worker on alternate days, a restriction imposed because of his injured left ankle. The claimant worked Monday, Wednesday and Friday as a sanitation worker for the employer. 6

7 Because of his left ankle injury, the claimant was unable to perform physical labor on the days he was seeking light duty work. His only work experience since high school graduation was his physical labor as a sanitation worker. Although he offered only testimony about the extent of his marketing efforts, we rely upon the Deputy Commissioner s finding that the claimant actually looked for light duty work for the remainder of the work week. The hearing occurred about one month after his release to light duty, and the claimant initially sought and hoped to work lighter duty with the employer on Tuesday and Thursday. Once he began his self-directed job search, the claimant made five additional contacts for part-time work not involving physical labor. Although he did not register with the VEC, which might have been helpful, it was not necessary in this case. We find the claimant s oral testimony in this case was specific enough to satisfy his burden of proving reasonable marketing efforts. Given the unique and unusual circumstances of this claim, we disagree with the Deputy Commissioner that the claimant failed to prove a reasonable effort to market his work capacity for the remainder of the work week after May 10, We therefore REVERSE the Deputy Commissioner s Opinion denying ongoing temporary partial disability benefits and enter a temporary partial disability award. IV. Conclusion The Deputy Commissioner s September 5, 2012 Opinion is AFFIRMED regarding the back injury and REVERSED regarding temporary partial disability after May 10, The following Supplemental Award shall enter: 7

8 SUPPLEMENTAL AWARD A supplemental award is hereby entered in favor of Charles Natt, III, claimant, against Town of Front Royal, employer, and VML Insurance Programs, insurer, providing for payment of compensation as follows, based upon a pre-injury average weekly wage of $ and a post-injury average weekly wage of $282: $ per week during temporary partial disability beginning May 11, 2012 and continuing until circumstances justify a change. Pursuant to Va. Code , medical benefits shall continue for as long as necessary for reasonable, necessary, and authorized treatment causally related to the claimant s June 1, 2010 left ankle injury. This matter is hereby removed from the review docket. APPEAL You may appeal this decision to the Court of Appeals of Virginia by filing a Notice of Appeal with the Commission and a copy of the Notice of Appeal with the Court of Appeals of Virginia within 30 days of the date of this Opinion. You may obtain additional information concerning appeal requirements from the Clerks Offices of the Commission and the Court of Appeals of Virginia. cc: Charles Natt, III Front Royal, Town of VML Insurance Programs 8