Anderson v. Anderson

• Decision Date: 10 November 2015
• Docket Number: Record No. 0697–15–2.
• Citation: 65 Va.App. 354,778 S.E.2d 132
• Parties: Cris R. ANDERSON v. Cris R. ANDERSON, d/b/a Anderson Plumbing and Firstcomp Insurance Company.
• Court: Virginia Court of Appeals

65 Va.App. 354

778 S.E.2d 132

Cris R. ANDERSON

v.Cris R. ANDERSON, d/b/a Anderson Plumbing and Firstcomp Insurance Company.

Record No. 0697–15–2.

Court of Appeals of Virginia, Richmond.

Nov. 10, 2015.

Cris R. Anderson, pro se.

Megan B. Caramore(Brian L. Sykes; Vandeventer Black LLP, on brief), Norfolk, for appellees.

Opinion

WESLEY G. RUSSELL, JR., Judge.

Cris R. Anderson, claimant, appeals a decision of the Workers' Compensation Commission denying him benefits. On appeal, claimant contends a majority of the Commission erred in finding: 1) claimant unjustifiably refused to cooperate with vocational rehabilitation efforts; and 2) the March 6, 2013 injury from a fall was not a compensable consequence of the original injury suffered on August 18, 2011.¹For the reasons that follow, we affirm the Commission's ruling that claimant unjustifiably refused to cooperate with vocational rehabilitation efforts, but reverse the Commission's conclusion that injuries suffered in a fall under these circumstances never can constitute a compensable consequence.

BACKGROUND

Claimant owned his own plumbing business. On August 18, 2011, claimant suffered a compensable injury to his right shoulder. The insurance carrier (hereinafter “employer”) accepted the injury as compensable. The Commission awarded claimant lifetime medical benefits and temporary total disability beginning on November 10, 2011.

For his shoulder injury, claimant was treated by Dr. Kenneth Zaslav, an orthopaedist. Dr. Zaslav treated claimant for a number of years after the accident, concluding that, as of June 17, 2013, claimant had achieved “MMI” or maximum medical improvement. Dr. Zaslav concluded that claimant was “unable to return to his pre-injury work level.” Dr. Zaslav did release him to light duty, providing restrictions for future employment, including no “lifting, carrying, pushing, [or] pulling of any kind” and specifically stating that claimant could not lift more than five pounds with his left hand. Having set forth the restrictions, Dr. Zaslav stated his hope that the workers' compensation process would result in “job training” so claimant could “find ... a new job.”

While he was still under Dr. Zaslav's care for his shoulder injury, claimant, on March 6, 2013, slipped and fell on snow-covered deck steps at his residence and claimed that he injured his lower back and left buttock as a result. Claimant testified before the deputy commissioner that he believed he had an appointment with Dr. Zaslav the day of the fall for treatment related to his August 18, 2011 shoulder injury and that the fall occurred as he was walking from his house to his car so that he could drive to the appointment. He thought he had a 1:20 p.m. appointment, but was unaware that his wife had told the doctor's office earlier that he would not be coming in that day. He testified that he called his doctor's office and left a message that he was on his way, yet the office notes from the doctor's office do not reflect that claimant called. They do, however, show that his wife called to cancel the appointment because claimant was not feeling well that day and was concerned about travel due to weather conditions. The office note reads: “spoke with wife, patient not feeling well and did not want to drive in the weather ... will call to [reschedule].” Claimant filed a change-in-condition application on May 29, 2013, seeking medical benefits for the injuries that he claims to have suffered in the fall.

Jennifer Jurlando, a vocational case manager at GenX Services, contacted claimant on August 8, 2013, to help him secure employment within his medical restrictions. When she first met with him, he “was resistant to provide me with any information about what he might like to do or be able to do.” Ms. Jurlando found three potential positions for claimant, including one full time and one part time position at Lowe's. On August 20, she spoke with Michael Saltisiak, the human resource manager at Lowe's, and he indicated that he was eager to speak to claimant about a job. She discussed claimant's work restrictions with Mr. Saltisiak, and he assured her that he was willing to work with claimant within those restrictions. Ms. Jurlando asked claimant to apply directly to Mr. Saltisiak. She then asked claimant to meet her at Lowe's on August 23. Claimant called her on August 22 and cancelled the appointment. She rescheduled the appointment for August 27. Claimant called Ms. Jurlando while she was on her way to that meeting and cancelled. She rescheduled the meeting for September 4. On September 3, claimant cancelled the meeting. He also told Ms. Jurlando not to schedule any more appointments with Lowe's and not to schedule any more vocational appointments or interviews. Ms. Jurlando testified that “[claimant] felt unwilling” to cooperate as of that date.

Claimant explained to the deputy commissioner that the reason he did not want to meet Ms. Jurlando at Lowe's was that the medications he was taking made him feel “lousy and drowsy.” That is also why he asked Ms. Jurlando to stop making appointments for him, specifically stating such efforts were “going to be a waste of time.”

Michael Saltisiak testified by deposition that he oversees applications for employment at the store. He is responsible for conducting initial interviews of potential employees. He indicated that Lowe's had a job opening in plumbing and that claimant had been scheduled for two initial appointments but did not show up for the appointments. Claimant eventually arrived at an unscheduled time. Claimant introduced himself and apologized for missing the other meetings. Claimant explained that he was “disabled” and would not be able to perform any job Lowe's had available. Mr. Saltisiak told claimant Lowe's had positions available that he thought claimant could perform. He testified that claimant showed no interest in pursuing those positions.

On September 5, 2013, employer filed an application for termination and/or suspension of lost wage benefits, alleging that claimant failed to cooperate with reasonable vocational rehabilitation efforts.

After conducting a hearing, the deputy commissioner found claimant unjustifiably refused to cooperate with vocational rehabilitation efforts. The deputy commissioner observed that claimant “did not present any credible medical evidence that he was unable to work ... at Lowe's in a modified position....” In granting employer's application to suspend temporary disability benefits, the deputy commissioner wrote, “It is the commission's opinion ... that the claimant essentially substituted his opinion for the physicians in this case and unilaterally stopped working with the vocational case manager, without even trying to meet with [Lowe's] at one of the scheduled meetings.”

Regarding the March 6, 2013 fall, the deputy commissioner, relying on Immer v. Brosnahan,207 Va. 720, 152 S.E.2d 254 (1967), concluded that any injuries claimant suffered in the fall were compensable consequences of the original injury, and therefore, awarded claimant medical benefits related to the fall.

Both claimant and employer sought review by the full Commission. The Commission affirmed the deputy commissioner's finding that claimant unjustifiably had refused vocational rehabilitation. As a result, the Commission affirmed the deputy commissioner's suspension of claimant's wage benefits.

A divided Commission, applying the rule from the Commission's decision in Mullins v. Abingdon Wholesale Plumbing & Electric,VWC File No. 186–70–45 (July 22, 1999), reversed the deputy commissioner's finding that claimant's fall was a compensable consequence of his original injury.²Specifically, a majority of the Commission concluded that the rule of Mullins(“ ‘[A]n employee is not enroute [sic] [to a doctor's appointment] for purposes of [an injury being a compensable consequence] until he is travelling on the public highways.’ ”) precluded any injuries claimant suffered in the March 6, 2013 fall from being a compensable consequence of the August 18, 2011 injury. Accordingly, the Commission reversed the deputy commissioner's decision and denied claimant's claim for medical benefits related to the March 6, 2013 fall.

Claimant timely noted an appeal to this Court.

ANALYSIS

“On appeal from a decision of the Workers' Compensation Commission, the evidence and all reasonable inferences that may be drawn from that evidence are viewed in the light most favorable to the party prevailing below.” Artis v. Ottenberg's Bakers, Inc.,45 Va.App. 72, 83, 608 S.E.2d 512, 517 (2005)(en banc). Furthermore, “we are bound by the [C]ommission's findings of fact as long as ‘there was credible evidence presented such that a reasonable mind could conclude that the fact in issue was proved,’ even if there is evidence in the record that would support a contrary finding.” Id.at 83–84, 608 S.E.2d at 517(quoting Westmoreland Coal Co. v. Campbell,7 Va.App. 217, 222, 372 S.E.2d 411, 415 (1988)). See alsoCode § 65.2–706. Such deference to the Commission does not extend to questions of law, which we review de novo. Rusty's Welding Service, Inc. v. Gibson,29 Va.App. 119, 127, 510 S.E.2d 255, 259 (1999)(en banc) (citation omitted).

Unjustified Refusal to Participate in Vocational Rehabilitation

After an award of benefits, an employer owes a duty to an injured employee to provide “reasonable and necessary vocational rehabilitation services.” Code § 65.2–603(A)(3).

Such services “include vocational evaluation, counseling, job coaching, job development, job placement, on-the-job training, education, and retraining.” Id.Once an employer provides such services, an unjustified refusal of the employee to accept the services “shall bar the employee from further compensation until such refusal ceases....” Code § 65.2–603(B). See also Newport News Shipbuilding & Dry Dock Co. v. Lawrence,38 Va.App. 656, 662, 568 S.E.2d 374, 376 (2002)(holding that “an employee's unjustified refusal to cooperate with placement...