Abacus Remodeling & Constr. & Builders Mut. Ins. Co. v. Fogel
| Decision Date | 13 September 2022 |
| Docket Number | 0010-22-1 |
| Parties | ABACUS REMODELING AND CONSTRUCTION AND BUILDERS MUTUAL INSURANCE COMPANY v. JOSEPH FOGEL |
| Court | Virginia Court of Appeals |
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Tenley Carroll Seli (Lynch Seli, P.C., on briefs), for appellants.
Philip J. Geib (Alexander H. Bell; Philip J. Geib, P.C., on brief) for appellee.
Present: Beales, Ortiz and Lorish, Judges Argued by videoconference.
A lapse in time between a work accident and a claimant's complaint about an injury does not per se negate affirmative evidence of a mechanical or structural change to the affected body part caused by the work accident. Abacus Remodeling and Construction and Builders Mutual Insurance Company ("Abacus") appeal a decision of the Workers' Compensation Commission awarding claimant Joseph Fogel temporary total disability benefits and lifetime medical benefits for injuries to his neck, left shoulder, and left arm stemming from a work accident. Abacus argues that the Commission erred in concluding that (1) Fogel sustained compensable injuries to these body parts in the work accident and (2) Fogel was disabled and entitled to ongoing disability benefits because of the work accident. We find that the Commission did not err in determining that Fogel suffered compensable injuries to his neck, left shoulder, and left arm in the work accident. However, we find that there was insufficient evidence to support an award of disability benefits beyond May 2, 2020. Accordingly, we affirm in part, reverse in part, and remand the Commission's decision for further actions consistent with this opinion.
On December 8, 2018, Joseph Fogel fell from a ladder while working for Abacus (the "work accident"). Subsequently, Fogel pro se filed a workers' compensation claim. Fogel sought a lifetime medical award for rib and lumbar vertebrae fractures, and temporary total disability from December 16, 2018, to the present. After investigating the claim, Abacus denied it, citing Fogel's safety violations. After hiring an attorney, Fogel twice amended his claim to include "fractures to his lumbar vertebra, a moderate left sided pleural effusion with a component of hemothorax, and a hematoma," and sought temporary total disability from December 8, 2018 awards of indemnity, and lifetime medical awards for treatment related to the work accident.
The deputy commissioner conducted five evidentiary hearings that took place over eighteen months-from July 2019 to January 2021. During these hearings, the deputy commissioner heard witnesses' testimony and admitted medical records and other documentary evidence into the record. The following evidence, relevant to this appeal, was produced.
Fogel worked for Abacus, a contractor in residential home construction and remodeling, for around eight months before the work accident. On the day of the work accident, Fogel arrived at his job site around 9:00 a.m. He worked with three other coworkers on a house that day. The work accident occurred around two hours into Fogel's workday when Fogel used a ladder he found in the garage to climb up to an attic access door in the garage to remove a hinge from the door. When Fogel climbed the ladder with his screw gun in hand, the ladder slid and Fogel fell to the concrete garage floor. Fogel testified that the ladder slid out from under him when he was "three or four feet, maybe five, [feet]" off the ground. He stated that he fell on his left side buttocks and left side ribcage. When Fogel's coworkers offered to call an ambulance, Fogel refused because he was worried about the cost and did not have health insurance. Shortly after the work accident, Fogel left the job site and went home.
Once home, Fogel iced his left side. The next day, Fogel's wife sent Fogel's supervisor a text saying that Fogel would not be at work for a couple of days because of the work accident. She also sent four photographs of Fogel's injuries, showing significant bruising on Fogel's left side and buttocks. Fogel's wife testified that Fogel "was hurting," "very, very sore," "couldn't move," and was "holding his ribs" after the work accident.
Fogel first sought medical treatment on December 19, 2018, at Sentara Princess Anne Hospital Emergency Department.[1] Fogel recounted the work accident and reported left-sided chest and abdominal pain along with trouble breathing. Reviewing a CT scan of Fogel's chest a doctor diagnosed Fogel with left rib fractures from ribs three through ten, moderate pleural effusion with a component of hemothorax, left-sided transverse process fractures at L1 through L4, and an intramuscular hematoma in the left gluteus. Fogel was then transferred to Sentara Norfolk General Hospital for trauma evaluation. While there, he underwent a thoracostomy tube procedure and received pain medication for moderate to severe pain. On December 22, 2018, Fogel was discharged, prescribed pain medications, and told to expect pain from the broken ribs for twelve to sixteen weeks. No hospital records from this initial medical care documented injuries to Fogel's neck, left shoulder, and left arm, but they did note generalized pain and bruising on Fogel's left side.
Fogel followed up with a nurse practitioner on February 13, 2019. He stated he was in too much pain to return to work, requested pain medication, and expressed concern over his ability to pay for medical treatment. While Fogel complained about back pain, he did not complain about neck, left shoulder, or left arm pain. The nurse practitioner told him he should have been able to return to work from a rib fracture standpoint and referred him to physical therapy for back pain. She told Fogel he could return to work "based on how he feels."
Fogel underwent a physical therapy evaluation in April 2019. His neck range of motion was within normal limits, and his shoulder range of motion was within normal limits with pain at the end-range elevation. His thoracic range of motion was "80% rotation with pain."[2] His shoulder strength was a "4+/5," and a treatment goal was to return shoulder strength to "5/5." Fogel attended a couple of physical therapy sessions in April but reported continued pain and limitations.
On June 5, 2019, Fogel consulted orthopedic Dr. Vincent and complained of low back and neck pain since the work accident. Dr. Vincent noted "[t]he pain is worst [sic] in his neck and radiation in to left shoulder causing problems with [range of motion]." Fogel stated physical therapy did not help with his symptoms. Dr. Vincent reported Fogel only had "60% of normal cervical [range of motion]."[3] He diagnosed Fogel with lumbar and cervical radiculopathy, ordered cervical and lumbar spine MRIs, and excused Fogel from work.[4]
After reviewing the MRIs, Dr. Vincent documented Fogel's cervical, thoracic, and lumbar radiculopathy, herniation of a cervical intervertebral disc with radiculopathy, spinal stenosis of his lumbar region, and cervical spinal stenosis.[5] Dr. Vincent then ordered a thoracic MRI and kept Fogel on no work duty status.[6] In November 2019, Dr. Vincent referred Fogel to physical therapy and kept Fogel on no work duty status. Dr. Vincent noted that "some of [Fogel's] parascapular pain" may be coming from his cervical stenosis.[7]
After Fogel finished physical therapy, Fogel last saw Dr. Vincent on April 2, 2020, due to his continued pain. At this visit, Dr. Vincent documented Fogel's cervical spinal stenosis, spinal stenosis of his lumbar region, closed fracture of multiple ribs of his left side with routine healing, cervical, thoracic, and lumbar radiculopathy, herniation of a cervical intervertebral disc with radiculopathy, and thoracic disc herniation ("April 2, 2020 report"). Dr. Vincent referred Fogel to pain management for evaluation as he might "benefit from injections," and noted Fogel may want to see a thoracic surgeon "[i]f he continues to have pain." Dr. Vincent's April 2, 2020 report continued Fogel's no work duty status, stating, "These limitations should continue until the patient is re-assessed at his next appointment in one month."
The parties stipulated that Fogel was an employee on December 8, 2018, fell off a ladder on that date, and suffered closed fractures of L1-L4, fractures of left ribs three through ten, a left hemothorax, and a gluteal hematoma (the "stipulated injuries"). They also stipulated that Fogel was disabled from December 13, 2018, through February 25, 2019.[8] However, presenting its own witness testimony, Abacus denied responsibility for the injuries Fogel sustained in the work accident.[9]
Fogel testified at the July 2019 and September 2019 hearings about the work accident, his medical treatment, and his financial difficulties related to his claim. Fogel's June 3, 2019 deposition was also admitted into evidence. In his deposition, Fogel talked about how the work accident caused him intense lower back pain, left shoulder pain, and loss of flexibility in his left arm.
After the last evidentiary hearing in January 2021, the deputy commissioner ordered that the parties file position statements by April 26, 2021, and the record remained open until that date. Yet Fogel did not submit any updated medical records, or any evidence or testimony dated after the April 2, 2020 report.
In May 2021, the deputy commissioner issued his opinion finding that Fogel suffered a compensable injury by accident.[10] Beyond the stipulated injuries, the deputy commissioner held that Fogel also injured his neck left shoulder, and left arm in the work accident, based on Fogel's testimony, Fogel's wife's testimony, and the medical records. The deputy commissioner awarded Fogel compensation for wage loss from ...
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